A legal attempt by the Office of the Director of Public Prosecutions to end a criminal case against Guy Spencer Elms has failed after the High Court upheld an earlier decision allowing the case to proceed.
The ruling means that Elms will continue facing charges linked to an alleged forged will, despite arguments by prosecutors that the matter should have been dropped.
The High Court decision was delivered on 27 January 2026 by Justice M. Muya.
The judge was asked to review and overturn a ruling made by Milimani Chief Magistrate Ben Mark Ekhubi on 24 September 2025. In that earlier decision, the magistrate had declined an application by the DPP to withdraw the charges against Elms.
Justice Muya found that the magistrate acted within the law and exercised his discretion properly.
The criminal case in question is Milimani Chief Magistrate’s Criminal Case No. E341 of 2025. Guy Spencer Elms faces four counts that relate to making a forged document and demanding property using what prosecutors allege to be a forged testamentary instrument.
These charges fall under different provisions of the Penal Code. At the centre of the dispute is a will dated 24 March 1997, which is said to have been written by the late Roger Bryan Robson.
The DPP based the request to withdraw the charges on a judgment delivered earlier by the High Court in a succession matter.
On 19 June 2025, in Succession Cause No. 955 of 2013, Justice Chemitai ruled that the disputed will was valid for the purposes of succession.
The prosecution argued that this finding meant the criminal case could no longer stand, since the will had already been upheld by the High Court.
However, Justice Muya did not agree with that interpretation. In his analysis, he pointed out that the succession court did not make a final or clear finding on whether the will was forged.
Instead, the succession court left that specific issue to be determined by a court with the proper jurisdiction, such as a criminal court.
For this reason, Justice Muya held that the magistrate was correct to allow the criminal process to continue.
The judge also addressed claims that the magistrate had misunderstood previous High Court decisions or misapplied the law.
He found that the magistrate correctly understood and applied earlier rulings, including decisions in Pansiba Limited v ODPP and Fredrick Mulaa v Kenya Human Rights Commission and others. Justice Muya further stated that section 193A of the Criminal Procedure Code, which allows criminal and civil proceedings to run at the same time, was not misused in this case.
Another important issue raised by the court was the treatment of the complainant.
Justice Muya emphasized the importance of the Victims Protection Act, especially the requirement that victims be informed and involved in decisions such as the withdrawal of charges.
He noted that the complainant had not been properly consulted during earlier attempts by the prosecution to terminate the case.
This failure, the judge said, weakened the prosecution’s application.
In strong terms, Justice Muya observed that the manner in which the withdrawal was handled created the impression that the complainant was being pushed aside in a dispute involving land ownership.
Such an approach, he stated, went against the spirit and letter of the law protecting victims’ rights.In the end, the High Court found no reason to interfere with the magistrate’s decision.
The application for revision was dismissed, the earlier stay orders were lifted, and the case was sent back to the Milimani Chief Magistrate’s Court for further directions.
This means the criminal proceedings against Guy Spencer Elms will continue as the court works toward resolving the serious allegations before it.
