State v Oloo & 2 others [2022] KEHC 10093 (KLR)

State v Oloo & 2 others (Criminal Case E020 of 2021) [2022] KEHC 10093 (KLR) (17 May 2022) (Sentence)

Neutral citation: [2022] KEHC 10093 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case E020 of 2021

RE Aburili, J

May 17, 2022

Between

State

Prosecution

and

Kevin Oduor Oloo

1st Accused

Joseph Oduor Oloo alias Otuga

2nd Accused

Dorine Akoth Odhiambo alias Adori

3rd Accused

Sentence

1. On 10/5/2022, this court delivered judgment in which it found the 1st and 2nd accused persons guilty of the offence of Murder contrary to section 203 of the Penal Code and convicted them accordingly.

2. The accused mitigated on their own behalf and their counsel Mr. Oduol mitigated seeking for leniency from the court. The accused have no previous criminal records. They are first offenders. They are said to seek for forgiveness from the deceased person’s family of whom the 3rd accused was the wife but for lack of sufficient evidence against her, she was acquitted of the charge.

3. The 2nd accused is aged 82 years old. He has a physical disability. He cannot walk without support. He is the paternal grandfather to the 1st accused and a cousin to the deceased. He is a widower. His wife died in 2004 according to the Presentence Report. He prays for a non-custodial sentence, saying that he has few years to live.

4. The 1st accused is aged 22 years old and does casual jobs. He is a young person. From the Presentence report he is law abiding other than on this occasion when he found himself on the wrong side of the law.

5. The accused persons were found guilty after the court considered the evidence adduced against them.

6. From the circumstances of this case, it is clear that the 2 accused persons had gone to rescue the 3rd accused who was acquitted, from the incessant domestic violence being meted upon her by husband, the deceased herein.

7. They however used excessive force and unlawfully killed the deceased. They were not justified in assaulting the deceased. They took the law into their own hands instead of reporting the deceased to the law enforcement authorities.

8. On the other hand, the deceased had exhibited a lot of cruelty to his wife who was very expectant at the time and from the evidence on record, she could have died from the assault due to her delicate state of affairs.

9. Life is sacrosanct and no person has power to take away the life of another person except as provided for under the Constitution or any other written law.

10. I have considered the mitigations, circumstances under which the deceased met his death and the principles of sentencing espoused in Francis Muruatetu Vs Republic[2017] eKLR case, and the Judiciary Sentencing Policy Guidelines.

11. I have also considered the objects of sentencing, and the respective ages of the accused persons who are first offenders.

12. I have observed that nothing is said about the family of the deceased husband of the 3rd accused as acquitted but she is left with children among them, a young baby who was born in March 2022 during her trial for the alleged murder of her husband.

13. I exercise discretion and sentence the two accused persons as follows:a)1st accused Kevin Oduor Oloo to serve 3 years’ Probation to be guided and counselled.b)2nd accused Joseph Oduor Oloo alias Atuga to serve three years suspended sentence not to commit any other offence for the next one year from today, in breach of any conditions attached to these very lenient sentences, the accused persons shall be brought before this court and sentenced in accordance with the law.

14. I so order.

15. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 17TH DAY OF MAY, 2022R.E. ABURILIJUDGE