The High Court has dismissed an application by the Director of Public Prosecutions (DPP) seeking to withdraw criminal charges against Guy Spencer Elms, ruling that the decision by the Chief Magistrate’s Court was lawful and proper.

In a ruling delivered on 27 January 2026, Justice M. Muya found no basis to interfere with the decision of the Milimani Chief Magistrate, Hon. Ben Mark Ekhubi, who on 24 September 2025 declined to allow the prosecution to withdraw the case.

The application before the High Court arose from Milimani Chief Magistrate’s Criminal Case No. E341 of 2025, in which Elms was charged with four counts related to making a forged document and demanding property based on an allegedly forged testamentary instrument, contrary to various provisions of the Penal Code.

The charges were founded on a will dated 24 March 1997, purportedly authored by the late Roger Bryan Robson.

The DPP argued that the charges could no longer be sustained following a judgment delivered on 19 June 2025 by the High Court in Succession Cause No. 955 of 2013, in which Justice Chemitai found the contested will to be valid.

On that basis, the prosecution applied to withdraw the criminal case, contending that the magistrate erred in rejecting the application.

However, in analysing the matter, Justice Muya noted that the succession court did not make a definitive finding on whether the will was forged, instead leaving that question to courts with the appropriate jurisdiction.

The judge observed that the trial magistrate had correctly appreciated this distinction and did not purport to sit on appeal over the succession court’s decision.

The High Court further found that the magistrate did not misinterpret earlier High Court decisions, including Pansiba Limited v ODPP & Another and Fredrick Mulaa v Kenya Human Rights Commission & 6 Others, nor did he misapply section 193A of the Criminal Procedure Code.

Justice Muya also placed emphasis on the rights of victims under the Victims Protection Act, noting that the complainant in the case was not adequately consulted or informed about earlier attempts to withdraw the charges.

The court held that this omission undermined the prosecution’s application, particularly in light of Section 20 of the Act, which guarantees victims the right to participate in decisions relating to the withdrawal of charges.

“The manner in which the withdrawal was pursued gives the impression of a deliberate attempt to sideline the complainant in a dispute involving land ownership,” the judge stated.

In the circumstances, the court concluded that the magistrate had properly exercised his discretion and that there was no justification for revision. The stay orders previously granted were vacated, and the matter was referred back to the Chief Magistrate’s Court at Milimani for further directions.