[2025] KEHC 1569 (KLR)

State v Oliewo (Criminal Case E028 of 2021) [2025] KEHC 1569 (KLR) (6 February 2025) (Sentence)

Neutral citation: [2025] KEHC 1569 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case E028 of 2021

RE Aburili, J

February 6, 2025

Between

State

Prosecution

and

Joel Juma Oliewo

Accused

Sentence

1. On 31st January 2025, this court delivered judgment in this case finding the accused person herein, now convict, Joel Juma Oliewo, Guilty of the murder of ERICK OCHIENG ATITO. The accused and his advocate mitigated and now it is time for the court to mete out appropriate sentence provided for in law.

2. In his mitigation, the convict is a first offender. He is 56 years old and an Assistant Chief. He has a family that depends on him comprising a wife and children. He is remorseful and pleads for the court’s leniency in sentencing, taking into account his public service job since 2001 which he is likely to lose and lose all his retirement benefits if he is sent to prison. He regrets the circumstances leading to the demise of the deceased. That n amount of punishment will bring back the life of the deceased and that the court’s discretion in sentencing is not fettered.

3. He stated that he was diabetic and suffered from High blood pressure.

4. I have considered the mitigations and the circumstances under which the offence was committed. I have also considered the principles espoused in the Francis Muruatetu & another v Republic [2017] e KLR and the Revised Sentencing Guidelines, 2023 published by the National Council on Administration of Justice.

5. These guidelines on sentencing in murder cases provide as follows at pages 66 and 67:“MURDER5. 2. 2The harm caused by such an offence is immeasurable. The sentence is not a measure of the value placed on the life of the victim. Therefore, the assessment of aggravating and mitigating features relating to the offence focusses on culpability. However, the victims’ family may wish to make a statement to the court about the impact of the offence.5. 2. 3In addition to the generic features contained in the GATS, features particularly relevant to murder may include but are not limited to:5. 2.4Aggravating Factors in Murder Cases:i.A significant degree of planning or premeditation.ii.The mental or physical suffering inflicted upon the victim before death. Factors such as the type of weapon used, torture or inhuman or degrading treatment prior to death will be relevant.iii.The use of duress or threats to enable the offence to take place.iv.The vulnerability of the victim e.g., due to age or disability.v.The fact that the victim was providing a public service or performing a public duty.vi.Multiple victims or multiple perpetrators.vii.Where the offence involved an abuse of trust. The relationship between the victim and the accused should be carefully considered.viii.Offence was motivated by, or there was demonstrated hostility to the victim based on his or her race, gender, sex, sexual orientation (or presumed sexual orientation), pregnancy, marital status (so called ‘honour killings’ for example), health status (e.g., murder occurred because of the HIV status of the victim, or albinism), ethnicity, culture, dress, language, birth, or religious orientation (or presumed religious orientation).ix.A history of assaults, threats, or coercion upon the same victim.x.. Absence of self-defence or provocation.xi.The offence involved deliberate drugging or stupefying of the victim.xii.Proven abduction or kidnapping of the victim before the murder was committed.xiii.Where a demand for ransom was made, signifying a financial motive.xiv.Concealing, destroying, or dismembering the body.xv.Where the murder was conducted in furtherance of a ritualistic practice such as witchcraft. 5. 2.5Mitigating features relating to murder might include:i.Lack of premeditation.ii.The offender suffered from a mental disorder or mental disability which lowered his degree of blame.iii.In a case of joint enterprise, the role the offender played may be lower than his co-accused. For example, in the resentencing of the Applicants in Francis Karioko Muruatetu & 6 others v Director of Public Prosecution [2019] eKLR the Judge categorised the offenders into four categories based on their culpability. The first category involved the architects of an offence e.g., those who financed the killing, the second category involves offenders who ensnared the deceased into his death, the third category is the henchmen, those who carried out the brutal killing and the fourth category involves offenders involved in the cover up of the offence by attempting to silence witnesses. The Judge sentenced the third category with the highest term of imprisonment and graduated the term down for the other categories.iv.That the offender was provoked.v.That the offender acted to any extent in self-defence or in fear of violence.vi.The age of the offender.”

6. The convict is a public servant placed in a position of public trust. He is expected to be a law enforcer and protector of citizens. Where a suspect is caught or arrested by other citizens and he is called, like it was in this case, he was expected to ensure that the suspect was not subjected to any mob injustice. He was t protect the citizen suspect and call the police or cause him to be arrested to face the due process.

7. In this case, the convict took upon himself the role of the judge, jury and executor. Not even the members of the public could deter him from torturing the suspect and even the victim of attempted rape was shocked that is why she testified on how the convict whipped the deceased mercilessly. The convict told those gathered and who tried to dissuade him from assaulting the deceased that he knew his job and none of them could teach him. In other words, he was determined to chastise the deceased until he was satisfied that the deceased had receive enough punishment for his bad deeds. As a law enforcer, he was expected to protect lives and rights of citizens knowing that life is sacrosanct. The convict took the law into his own hands. He was a rogue Chief who cannot be trusted with leadership in the community.

8. The deceased too had a family, that depended on him, from the prebail assessment report filed on 9/11/2021 he was aged 33 years when he was brutally murdered by the convict herein. He was a ship captain at Kenya Railways Corporation and married with three children all who are still very young. His family have lost the bread winner and have suffered psychologically due to the loss. It cannot be that the accused is keen to take care of his job and family when the deceased is in the grave and his young family is morning.

9. Regrettably, in this case, the accused person’s family must live with the consequences of their rogue bread winner who had no respect for his own job. This was not an accidental death. The accused knew the consequences of his action which he now must face. It is not uncommon that there are now too many of such cases where local administrators take the law into their own hands and kill suspects in their area of jurisdiction. The sentence to be meted out must sent a message to such rogue administrators that it is not in their mandate to execute suspects of offences but to arrest and surrender them to the police for legal action.

10. Non-custodial sentence to save his job is not appropriate sentence considering that the deceased too was an employee of a government corporation and his brutal murder has subjected his family to loss and suffering.

11. Life is sacrosanct and no person has any right whatsoever to take away another person’s life in circumstances such as the ones in this case.

12. Non-custodial sentence is not appropriate in the circumstances.

13. I exercise discretion and sentence the convict herein Joel Juma Oliewo to serve thirty (30) years imprisonment to be calculated taking into account the time he spent in custody upon arrest on 14/10/2021 to 19/11/2021 when he was released on bond and from 31st January 2025 until today 6/2/2025 when his bond was suspended.

14. The sureties to be discharged and the security deposited into court to be released to the surety on identification.

15. The convict has a guaranteed right of appeal, which is 14 days of today to the Court of Appeal. Proceedings are typed only awaiting proof reading. The judgment as delivered was published. This ruling on sentence shall be uploaded and published too for access.

16. This file is closed.

DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY VIA MICROSOFT TEAMS THIS 6TH DAY OF FEBRUARY, 2025R.E. ABURILIJUDGE