National Land Commission rejects police claims of forgery by lawyer in land dispute

The National Land Commission has found that lawyer Guy Elms did not commit forgery despite the DPP wanting him to be charged with fraud in a dispute over two properties in Karen and Upper Hill.

The NLC report says that Elms is merely executing the will of a deceased man who wanted to leave the two properties to charity and that he is being opposed by a cartel of land grabbers.

In June Elms lost a judicial review to block his arrest and prosecution for forgery and the CID is now trying to execute an arrest warrant to bring Elms to court.

However the NLC investigation found that the signatures were genuine on the 1997 will that Elms allegedly forged, and that the forged signatures were actually on the transfer documents that Roger Robson allegedly signed in 2011 just before his death.

“In my opinion I find no forgery committed by Mr Guy Elms,” stated Antipas Nyanjwa, NLC Deputy Director of Investigations and Forensic Services, in a report prepared in February but only released in June. Nyanjwa is a highly qualified forensic document examiner.

“I find Mr Guy Elms Spencer to be a victim of the criminal gangs and land cartels,” wrote Nyanjwa. He said Elms was facing “trumped up charges to frustrate him to give up on the estate of the late Mr Roger.”

“Mr Roger’s estate is targeted by fraudsters working for influential people in the government in an elaborate scheme involving the Police Department, Office of the DPP, Ministry of Lands and Physical Planning Department, and County Government officials in cohort with criminal goons enjoying political and police protection”, said Nyanjwa.

He added that he found “no motivation” for forgery by Elms because he “is not a beneficiary in any way from the Will he is being accused of forging”.

Roger Bryan Robson, a single man and Kenyan citizen aged 71 years, died on August 8, 2012. He lived at his Karen house until his death. Robson had made a will in 1997, leaving his estate to relatives and charitable organisations in Kenya involved with environment, wildlife, health and education.

The principal assets of Robson’s estate were a 5.2-acre property on Ushirika Road, Karen, and a half-acre plot with flats next to the Nairobi Hospital in Upper Hill, together worth at least Sh500 million.

The executor, lawyer Guy Elms, wanted to pass the Sh500 million estate to the Kenya Wildlife Service and the Kenya Forestry Service, but since Robson’s death, the Karen property has been occupied multiple times by invaders, including gospel singer Alex Apoko, famously known as Ringtone.

A woman called Agnes Kagure Kariuki claims to have bought the Karen property for Sh100 million in 2011 while the old man was still living there.

“Uniquely this questionable conveyance was not stamped and registered until 6 November 2014, which is three years late in which no penalties are attracted that is abnormal,” states the NLC report.

“The Registrar whose signature has been appended on the Conveyance has also disowned the signature as a forgery. No Day Book Number Entry for this document and there is no entry for Stamp Duty for this document. Agnes Kagure Kariuki’s conveyance document is an outright forgery,” the NLC report states.

“The disputed signatures being the 2011 Conveyance, Contract and Letter allegedly from Robson to Agnes Kariuki are all forgeries as they fundamentally differ in all characteristics from Mr Roger B Robson’s style of writing. The author of the forged signatures has a higher pen speed that Mr Robson could not attain at the time the documents were signed due his age save for his health,” the NLC report states.

Robson's Upper Hill property was owned through a company called Plovers’ Haunt, originally set up by his parents. There were six flats called Pittaway Flats in the property next to Nairobi Hospital. Goons invaded the property on Ralph Bunche Road in 2015 after Thomas Murima Mutaha and Peter Gaitho Wallace claimed to be the directors of the company.

However at that time, while acting as executor of Robson's estate, Elms was a director of Plovers’ Haunt. The company records are complete and date back to 1947.

The Upper Hill property is still illegally occupied and therefore cannot be sold for the benefit of KWS, KFS or other Kenyan charities.

Mutaha and Gaitho had share transfers in their favour but the NLC found them “patently fraudulent” because “the transfers were incorrectly executed i.e. by the wrong person(s)”; “a cursory look at the two share transfer forms shows that Roger’s signature is quite different”; there was no stamp duty paid on the transfers; and Roger’s mother Betty Fairfax Robson apparently consenting to the transfer despite having been dead for 17 years.

Again the NLC concluded that a criminal cartel was trying to illegally grab the estate of Roger Robson.

“I find no forgery committed by Mr Elms,” said the NLC forensic analyst, adding, “I find Mr Guy Elms Spencer’s statement, explanation of sequence of events, incidences and documentary evidence in support of all his actions to be very consistent.”

In September 2015, the DPP’s first review of the case by Nicholas Mutuku Deputy DPP found the evidence against Elms to be deficient and asked the police to interview key witnesses.

However, on November 2, 2017, the Deputy Director of Public Prosecutions Nicholas Mutuku wrote to the Director of CID that there was a prima facie case against Elms and instructed that he should be charged with forgery of Robson's will and power of attorney, subject to CID obtaining statements from three key witnesses.

However, despite the CID proceeding with the attempted prosecution of Elms, they have not yet contacted those witnesses since 2015.

In fact, Elms has also provided affidavits from Milcah Nduati and Mary Kariuki stating that they witnessed Robson’s signature on the will when it was prepared by Archer and Wilcox in 1997.

In a supporting affidavit to Mutuku’s recommendation of prosecution in 2017, Inspector Emmanuel Kanyungu of CID curiously said that the investigation was prompted by an anonymous letter received in April 2014 saying Elms had forged Robson's will.

"I have no personal interest whatsoever in the assets of the estate. I am merely an executor and not a beneficiary," Elms wrote in a letter of complaint to the Inspector General of Police on 18 November.

In November 2016, his brother Michael Robson of Ledbury, Herefordshire, wrote to Tobias Ellwood, a junior minister in the Foreign Office, complaining that “Mr Elms has been prevented from performing his duties as executor by high-level corruption, life-threatening intimidation and criminal seizure of estate assets.”

Robson’s brother alleged the fraudsters are being assisted by “the police, the Land Registry, the Companies Registry and most recently the Directorate of Public Prosecutions, which has ordered Elms’s prosecution. It seems all these bodies are assisting the fraudsters, not the legitimate claimant, my late brother’s executor, Mr Elms”.

The brother said he wanted the estate to be split between his son, only introduced as Oliver, and Kenyan “environmental and educational causes”.

“If the will is cancelled because, as alleged, it’s forged, then the brother is the closest living relative and is entitled to the whole estate,” said a lawyer involved in the case.

“If anyone should claim the will is forged, then it should be the brother, but he says the will is genuine. So why has the DPP not been in contact with Robson’s brother as his next of kin?”, the lawyer asked.

Elms has fought extensive legal battles over the last five years to prevent the fraudulent takeover of the property. So far, all the suits claiming ownership of the two properties have stalled in the civil courts. Both the properties are still occupied by squatters.

Now that the civil cases have stalled, the criminal courts have been dragged into invalidating Robson’s will.

On November 2, Deputy DPP Nicholas Mutuku wrote to the DCI director that there was a prima facie case against Elms. He instructed Elms be charged with forgery of Robson’s will and power of attorney, subject to the DCI obtaining statements from three key witnesses.

A lawyer familiar with the case said he believed a senior police officer is now the driving force behind the attempted takeover of the estate.