[2017] KEHC 9158 (KLR)
The court found that the offences of arson and murder are distinct and not the same for purposes of double jeopardy. The applicants had been convicted and sentenced for arson, but had not yet taken plea on the murder charge. There was no sufficient evidence to show that the murder charge arose from the same facts as...
Source-derived case information.
- Citation
- [2017] KEHC 9158 (KLR)
- Parties
- Applicant: Abdallah Oduor Amunga; Applicant: Patrick Okoth Otieno; Respondent: Director of Public Prosecutions (DPP)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 49 & 50 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Termination of Intended Prosecution
- Outcome
- applications dismissed
- Judges
- AT Sitati
- Legal Topics
- Double Jeopardy, Abuse of Process, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdallah Oduor Amunga
Applicant
Patrick Okoth Otieno
Applicant
Director of Public Prosecutions (DPP)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Termination of Intended Prosecution
Legal Issues
- 1 Whether the intended prosecution for murder after conviction for arson amounts to double jeopardy.
- 2 Whether the intended prosecution is malicious, unlawful, unconstitutional or an abuse of court process.
- 3 Whether the applicants are entitled to a stay or termination of the intended murder proceedings before plea.
Ratio Decidendi
The court found that the offences of arson and murder are distinct and not the same for purposes of double jeopardy. The applicants had been convicted and sentenced for arson, but had not yet taken plea on the murder charge. There was no sufficient evidence to show that the murder charge arose from the same facts as the arson conviction, or that the intended prosecution was malicious, unlawful, or an abuse of process. The court held that it was premature to seek a stay or termination of the murder proceedings before plea had been taken. Consequently, the applications lacked merit and were dismissed.
Court Disposition
applications dismissed
Orders
- The consolidated applications for stay and termination of intended prosecution are dismissed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL DIVISION
MISC. APPLICATION NO. 49 OF 2017 AND NO 50 OF 2017
(CONSOLIDATED)
ABDALLAH ODUOR AMUNGA AND ANOTHER…….....APPLICANTS
VERSUS
DPP..................………………………………………........RESPONDENT
R U L I N G
Introduction
1. The applicant’s herein Abdallah Oduor Amunga and Patrick Okoth Otieno were charged and convicted of Arson in criminal case No. 688 of 2015 at the SPM’s court at Mumias. They were sentenced to serve 5 years imprisonment.
2. The applicants have filed two similar applications seeking a stay in their taking of plea in an intended criminal Case No. 8/2016 in the High Court of Kenya at Kakamega. They want this court to order and / or make a declaration that the intended prosecution and criminal proceedings against them is malicious, scandalous unlawful, unconstitutional and an abuse of the court process. They also want this court to terminate the intended prosecution.
3. The applications are based on the grounds on the respective face of the application and supported by the affidavits of the applicant. The applications were consolidated and canvassed orally.
Submission
4. In his submission the 1st applicant Patrick Okoth Otieno explained the circumstances of his arrest and arraignment in court. He maintains there were no other charges against him except the charge of arson. He states that at the trial it was alleged they had killed the complainant’s wife but there was no proof. He is now surprised that he is supposed to answer to a charge of murder even after being convicted of arson and sentenced to 5 years on the 31. 3.2016. The 2nd applicant is in agreement with the 1st applicant’s submissions and wants the murder case stopped as he was not involved in it.
5. Mr. Juma the prosecution counsel opposed the application. He submitted that the applicant’s contention that since they were charged and convicted of arson they cannot subsequently be charged with murder cannot stand because the subsequent charge is lawful. He further submitted that the applicants have not demonstrated how their rights under Articles 49 and 50 of the Constitution have been violated.
6. Counsel submitted that while it is true that both Article 50(2)(a) of the Constitution, 2010 and Section 138 of the Criminal Procedure Code provide that persons convicted or acquitted by a court of competent jurisdiction cannot be tried again for the same offence, the applicants case does not fall within the ambit of the said provisions. He further submitted that the offence of arson for which the applicants were tried, found guilty and convicted cannot be said to be the same as the offence of murder. Finally, counsel submitted that orders of stay in Criminal matters should be granted only very sparingly and even then in only exceptional circumstances. He urged the court to dismiss the application.
Determination
7. This court has now carefully considered the rival submissions on the matter in controversy. It is not in doubt that the two applicants have been convicted and sentenced for the offence of arson and that they are both serving five (5) year imprisonment.
8. The prosecution has taken the position that the fact that the applicants were charged, tried, convicted and sentenced for the offence of arson does not stop the police from preferring a subsequent charge against them. From the reading of the applicant’s application it is clear that the applicants have not taken plea on the murder charge.
9. The applicants contended that having been so convicted and sentenced, they are being condemned twice which may amount to double jeopardy. As I understand it the two offences are quite different. The applicants were charged on the 1. 11. 2015 on a charge of arson and on the 31. 03. 2016 they were convicted and sentenced to serve 5 years imprisonment. There is not sufficient evidence before this court showing that the offence of murder in which the applicants are required to take plea is the same as the offence of arson for which they are now serving sentence. It is premature at this stage for the applicants to seek stay of the murder charge even before plea.
Conclusion
10. In the circumstances, I have reached the conclusion that the two applications are lacking in merit and the same be and are hereby dismissed.
Orders accordingly
Ruling delivered, dated and signed in open court at Kakamega this 31st day of July, 2017
RUTH N. SITATI
JUDGE
In the presence of;-
Both Applicants present in person………..........…For Applicant
Mr. Juma (present)…………………………………..for Respondent
Polycap………………………………………………..Court Assistant