High Court 12095 of 2026

2. That each of the four (4) charges were founded on the basis of a Will dated 24th March, 1997 (hereinafter, the subject Will) at the time purportedly having been written by ROGER BRYAN ROBSON (deceased) which is the fake document purportedly made and lettered by the respondent as per the particulars of the charges in each of the counts. 3. That on 19th June, 2025 subsequent to the applicant’s decision to charge the respondent with the foregoing charges, the High Court of Kenya at Nairobi (Chemitai J) delivered a judgment in the matter of the estate of ROGER BRYAN ROBSON (deceased) Nairobi High Court Succession Cause No. 955 of 2013 in which the learned Judge found that the subject Will was and is valid. 4. That on 11th August, 2025 cognizant of the fact that the charges were founded on the previous believe that the subject Will was a forgery and noting the effect of the judgment in the Succession Cause, more particularly on the validity of the subject Will, the applicant made the considered decision to withdraw the subject criminal case against the respondent. 5. That on the 25th September, 2025 despite the foregoing facts which were availed to the learned trial magistrate despite correctly finding that succession court had found that the subject Will was valid and despite further correctly finding that the charges were founded on the subject Will whose validity had since been updated by the High Court. The learned trial magistrate still declined to allow the applicants application for withdrawal. 6. That the learned trial magistrate misinterpreted and misapplied the decision of the High Court of Kenya (Hon. M. Muteti J) in Pansiba Limited vs. ODPP & Another Milimani High Court Criminal Revision No. E116 of 2025) and of HCC, the High Court of Kenya (Hon. B. M. Musyoki J) in Fredrick Naulace vs. Kenya Human Rights Commission & 6 others (Milimani High Court Petition No. E004 of 2024 to the illegal, incorrect and erroneous effect that the applicant can never withdraw a criminal case without consulting an investigating officer or victim. 7. That the learned trial magistrate similarly misinterpreted and misapplied the provisions of section 193A of the Criminal Procedure Code with the illegal incorrect and absurd effect that the learned trial magistrate, a subordinate court could sit on appeal over the decision of the Succession Court, a High Court at least as far as the validity of the subject Will is concerned. 8. That with the decision of the Succession Court on the validity of the subject Will and the obvious effect on the viability of the charges, and CRIMINAL REVISION NO. E135 OF 20235 2

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the clear fact that none of the charges would subsequent to the decision of the Succession Court be sustained with a realistic prospect of a conviction not even a consultation with the victim would have changed the circumstances. 9. That in arriving at the impugned ruling, the learned trial magistrate failed to consider relevant factors that non-resident prosecutors in conduct of the matter and not just the witnesses could not make it to court due to financial challenges. 10. That it is in the public interest that the applicant be granted the permission to withdraw the charges against the respondent, not only to uphold the independence of the applicant in the exercise of this mandate but more importantly to prevent an abuse of the process. Analysis and Determination 4. The High Court under article 165 (6) and (7) of the constitution of Kenya exercises supervisory jurisdiction over the subordinate courts. These powers of supervision are further found under section 362 of the criminal procedure code. 5. Section 362 of the Criminal Procedure Code provides ‘The High Court may call for and examine the record of any criminal proceedings before any subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court. 6. This court called for the record of proceedings in the Lower Court which in the main were the charges which had been preferred against Guy Spencer Elms the respondent in this application and the ruling of the learned trial magistrate who had declined to allow the withdrawal of charges against the respondent in which the DPP was the applicant. Issues for Determination 7. Whether the application has disclosed any incorrectness, illegality or impropriety with respect to the impugned ruling and or order. 8. It is the contention by the applicant that the basis of the charges facing the respondent was anchored on the validity of a Will. Further, that Justice Chemitai in the matter of the Estate of ROGER BRYAN ROBSON Succession No. 955 of 2013 found that the Will was valid. 9. That informed the applicants decision to withdrawal the charges against the respondent. CRIMINAL REVISION NO. E135 OF 20235 3

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10. It is the applicants case and contention that the learned trial magistrate misinterpreted and misapplied the decisions of the High Court (Hon. Muteti J) on Pansiba Limited vs. ODD & Another. High Court Criminal Revision No. E116 of 2025 and that of Hon. B.M. Musyoki J) in Fredrick Mulaa vs. Kenya Human Rights Commission & Others, ACEC Petition No. E004 of 2024 to the illegal, incorrect and erroneous effect that the applicant can never withdraw a criminal case without consulting an investigating officer and or victim. 11. The powers of the Director of Public Prosecutions are provided for under Article 157(10) of the constitution in the following manner; ‘The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority’ The Supreme Court of Kenya in the case of Saisi & 7 Others vs. Director of Public Prosecutions & 2 Others (Petition No. 39 and 40 of 2019) held; ‘Article 157(6) of the constitution empowers the DPP to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed. Being one of the independent constitutional offices established, Article 157(10) of the constitution safeguards this independence by decreasing that the DPP shall not require the consent of any person or authority before commencement of proceedings, neither shall he be under the direction or control of any person. That is not to say that this power is absolute. Article 157(11) requires the DPP in the exercise of his duties to have regard for public interest, interest of administration of justice and to prevent or avoid abuse of the legal process’. 12. Whereas article 50(7) of the constitution provides for the rights of an accused to a fair hearing, article 50(9) of the constitution provides that parliament shall enact a legislation providing for the protection, rights and welfare of victims of offences. Hence the enactment by parliament of the Victims Protection Act. 13. Section 20(1) (a) of the Act gives the victims’ rights to submit information to the police or prosecution on decisions whether or not to lay a charge or to appeal or withdraw. 14. What this means is that the powers of the DPP in the performance of his/her statutory duties is not absolute. They should not be exercised arbitrarily or capriciously but ought to be clothed with CRIMINAL REVISION NO. E135 OF 20235 4

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reasonableness and procedural fairness as required under articles 10, 47 and 157 (ii) of the constitution. 15. Section 193 A of the Criminal Procedure Code provides for concurrent criminal and civil proceedings thus; ‘Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings’ 16. It is the contention of the applicant that the application for withdrawal is predicated upon the High Court finding on the validity of the Will. It is not in dispute that the exparte applicant who is the victim and or the complainant was not consulted at all before the DPP decided to withdraw the criminal charges against the accused. 17. The learned trial magistrate did note that this was not the first time the DPP was attempting to withdraw the criminal charges against the accused. A previous attempt to withdrawal the charges was made in the year 2018 long before the High Court determined the succession case in which it was of the view that the Will was valid. 18. The learned trial magistrate did allude to the multiplication of applications for withdrawal. 19. I have perused the judgment of Hon. Chemitai J and in particular paragraphs 79 and 80. The Judge did not make a clear finding as to whether there was forgery or not and left the matter to the other courts with the necessary jurisdiction to decide. The learned trial magistrate did address himself to this issue and did note that he was not sitting on appeal. 20. On the contention by the applicant that the application for withdrawal of the charges was anchored on the finding that the Will was valid. Thus may or may not be true reason being that there had been other attempts to withdraw the charges and in both instances the exparte applicant was not informed even bearing in mind that the exparte applicant was the complainant. 21. This therefore, smacks of a deliberate attempt to sideline the exparte applicant in the important decision of withdrawing charges relating to a dispute concerning matters of land ownership. 22. The enactment of the Victims Protection Act elevates the rights of a victim to nearly the same level as those of an accused person which are constituted in the article 50 of the constitution. Section 20(1) (a) of the Act gives the victims the right to give information to CRIMINAL REVISION NO. E135 OF 20235 5

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police or prosecution on decisions whether or not to lay a charge or to appeal or withdraw. In this instant case the rights of the victim were not put into consideration as required while withdrawing the case. The upshot is that the learned trial magistrate did not misapply the decisions in Pansiba Limited vs. ODPP & Another Criminal Revision No. E116 of 2025 and the case of Fredrick Mulaa vs. Kenya Human Rights Commission & 6 Others Petition No. E011 of 2024. Neither did he misinterpret the provisions of section 193A of the Criminal Procedure Code. I therefore, find no good reason to interfere with the decision of the learned trial magistrate to disallow the application for withdrawal of the charges. The stay orders granted to the applicant are hereby vacated as the appeal has no merit. The original file to be placed before the Chief Magistrate, Milimani for directions on 18th February, 2026. DATED, SIGNED and DELIVERED in open court this 27th day of January, 2026. _______________________ M. MUYA JUDGE In the Presence of: Lintoro, Shah – For the Applicant, Sheude – For the Respondent, Owiti – For the ODPP, Isacko - Court Assistant CRIMINAL REVISION NO. E135 OF 20235 6

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