[2023] KEHC 1525 (KLR)
The High Court held that where two conflicting sentencing orders have been issued by courts of concurrent jurisdiction regarding the same applicant and offence, the first order in time takes precedence. The court found that the order by Hon Usui, Chief Magistrate, sentencing the applicant to forty years'...
Source-derived case information.
- Citation
- [2023] KEHC 1525 (KLR)
- Parties
- Applicant: Patrick Ngesa Ogama; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 37 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Conflicting Sentencing Orders After Re Sentencing Under Muruatetu
- Outcome
- The order by Hon Limo commuting the sentence to time served is set aside; the order by Hon Usui sentencing the applicant to forty years' imprisonment is upheld.
- Judges
- HK Chemitei
- Legal Topics
- Robbery With Violence, Sentencing, Muruatetu Guidelines, Conflicting Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Ngesa Ogama
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Conflicting Sentencing Orders After Re Sentencing Under Muruatetu
Legal Issues
- 1 Whether the existence of two conflicting sentencing orders in respect of the applicant can stand.
- 2 Which of the two sentencing orders should take precedence and be enforced.
Ratio Decidendi
The High Court held that where two conflicting sentencing orders have been issued by courts of concurrent jurisdiction regarding the same applicant and offence, the first order in time takes precedence. The court found that the order by Hon Usui, Chief Magistrate, sentencing the applicant to forty years' imprisonment from the date of the initial sentence, was the first valid order. The subsequent order by Hon Limo, which purported to commute the sentence to time served and release the applicant, was made without knowledge of the earlier order and was therefore set aside. The court doubted the applicant's claimed ignorance of the parallel proceedings and emphasized the need for finality...
Court Disposition
The order by Hon Limo commuting the sentence to time served is set aside; the order by Hon Usui sentencing the applicant to forty years' imprisonment is upheld.
Orders
- The decision by Hon Limo in criminal case number 161 of 2020 is set aside.
- The decision by Hon Usui in criminal case number 144 of 2019 sentencing the applicant to forty years from May 18, 2004 is upheld.
Full Case Text
Judgment text and source record
22 paragraphs
Ogama v Republic (Miscellaneous Criminal Application 37 of 2019) [2023] KEHC 1525 (KLR) (27 February 2023) (Ruling)
Neutral citation: [2023] KEHC 1525 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application 37 of 2019
HK Chemitei, J
February 27, 2023
Between
Patrick Ngesa Ogama
Applicant
and
Republic
Respondent
Ruling
1. The applicant was accused, charged and convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code. On June 30, 1999 he was sentence to death as the law then mandatorily required. Upon the applicant’s application filed pursuant to the decision of the Supreme Court in the now famous case ofFrancis Muruatetu, the court on April 28, 2020 ordered for sentence re-hearing under the Muruatetu authority.
2. The applicant went ahead to file two miscellaneous applications which were running simultaneously before the high court, one from prison and the other from outside prison namely; criminal case No 144 of 2019 and 161 of 2020. The High Court ordered that the miscellaneous applications be heard and determined before Chief Magistrate Court at Nakuru. On September 1, 2020, Hon E.K Usui, the Chief Magistrate at Nakuru in criminal case No 144 of 2019 ordered that the applicant be re-sentenced to serve 40 years’ imprisonment from the date of his initial sentence. Thereafter, on November 6, 2020 the Senior Resident Magistrate Hon Limo at Nakuru in criminal case number 161 of 2020 ordered that the applicant custodial sentence be commuted to the period already served and he was set at liberty from prison unless lawfully held.
3. The prison authorities by a letter dated September 12, 2022 sought the directions of the court in view of the two conflicting decisions by the lower court.
4. When the matter came up for directions the applicant faint ignorance and said that he did not know what was going on. He left it for the court to decide.
5. In view of the fact that there are two conflicting decisions by the trial court as stated above, the first will always take precedence over the second. It is presumed that Hon Limo by the time he made his findings was not in the picture of the decision by Hon Usui, the Chief Magistrate. This court highly doubts if the applicant was innocent of the on goings in the two applications.
6. Consequently, the decision by Hon Limo is hereby set aside. The decision of Hon Usui sentencing the applicant to forty years from the date of the that is May 18, 2004 is upheld.
7. The applicant if not satisfied with the same is hereby granted leave to file any appeal if need be.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 27TH DAY OF FEBRUARY 2023. H. K. CHEMITEI.JUDGE