When Alvin Odhiambo Omulo decided to post bail for his cousin, who was facing robbery with violence charges, little did it occur to him that the selfless gesture would land him in prison for two years and cost him both his family and his police job.
The life of the former Administration Police officer, then based in Embu West sub-County, quickly turned upside-down by what a High Court judge would later describe as a “faulty” ruling.
The 41-year-old man says he slipped into depression and at some point even attempted to end his life.
On July 12, 2018, Omulo’s cousin, Ibrahim Oluoch, alias 'Justice', was charged with robbery with violence, alongside two other individuals.
When Oluoch was released on a Sh700,000 bond and a surety, he reached out to his cousin, Omulo, to stand in as his surety. Omulo agreed and deposited his payslip at the Winam court.
However, things took a drastic turn after his cousin and the co-accused failed to turn up for court sessions.
“Shortly after Ibrahim was released, some people told me that they were re-arrested but surprisingly the trio was never booked at Kondele Police Station as was expected. They were instead bundled into a private vehicle and driven to Nairobi, never to be seen again,” explains Omulo.
During this period, Omulo had managed to secure a break from work in order to concentrate on the case.
The former police officer would appear in court to give updates on the whereabouts of his cousin, but as days turned into weeks and weeks into months, he painfully concluded that his cousin and the other two could have been victims of forced disappearance.
“Since I was unable to prove that my cousin had died by providing the body or a death certificate, I was left stranded. A year later, October 31, 2019 to be precise, I was summoned to court to explain the situation. The magistrate proceeded to give me a suspended sentence of two years, which was to commence after 30 days,” says Omulo.
In his decision, Senior Principal Magistrate Hezron Nyaberi found that Omulo failed to play his role as a surety for Oluoch.
The trial court ruled that the former officer should take responsibility in all the matters that he stood as a surety for the accused person.
He was to be remanded at the Kisumu Maximum Prison, Kodiaga, but on reaching there, the officer in charge refused to admit him claiming that there was no section committing Omulo to prison.
He spent the night at the Kondele Police Station but the following day he was returned to Kodiaga Prison where he started serving his sentence.
Narrating his ordeal within the prison walls, Omulo says he felt abandoned by his family and the more he was confined within the walls of the facility, the more he wished that whatever was happening would turn out to be a bad dream.
“I did not want to isolate myself and therefore chose to be in the general population area to avoid stress and negative thoughts,” says Omulo.
Having been convicted of a crime, he lost his police job. His wife would leave later on with his son, sending him into depression.
Photo of Alvin Odhiambo Omulo taken when he served as a police officer.
Photo credit: Photo: Courtesy.
Omulo says his sentencing affected the performance of his 13-year-old son who sat the Kenya Certificate of Primary Education examinations that year.
By the time the courts resumed, there were delays in hearings which meant that an appeal he had filed would take longer to be heard and determined.
“When I was in prison, my only consolation was that, no matter the circumstances, I was to be there for only 24 months’ unlike others who had been sentenced for more than 20 years,” he said.
Omulo petitioned the High Court on December 10, 2019, arguing that the trial magistrate infringed on his rights when he failed to abide by the provisions of section 131 of the Criminal Procedure Code.
According to the appellant, the objective of Section 131 of the Penal Code was not to punish or jail sureties but to ensure that all efforts were made to present before the court the accused persons.
He submitted that having deposited his pay slip to the court as security, the court ought to have moved to actualise warrants of attachment and sale of his moveable property as provided in section 131 (2) of the Criminal Procedure Code.
He argued that the maximum sentence he should have gotten should not have exceeded six months in line with the penal code.
Omulo also took issue with the decision of the trial court to have the sentences run consecutively rather than concurrently, arguing that in the end he would serve in excess of the six months provided under section 131 of the criminal code, which to him was then an illegal sentence.
However, the State opposed the appeal arguing that Omulo was given an opportunity to explain the whereabouts of the accused person.
It also stated that on June 6, 2019, the trial court reviewed its orders and allowed the appellant to look for the accused person. However, upon being released, he neither brought any report nor presented himself.
However, the High Court in Kisumu found that having failed to produce the accused person, the trial court should have asked the appellant to pay a penalty or show cause why it should not be paid.
The other option, the High Court stated was that the trial court should have ordered for attachment of the appellant’s property under Section 131(2) of Criminal Procedure Code.
In this case, Omulo had produced his pay slip as security, hence the court should have ordered its forfeiture.
“The trial court could only have exercised the last option to imprison the appellant for six months if the forfeiture could not be realized from the attachment of his property. The trial court also had the option of ordering that the appellant remit a portion of the penalty aforementioned and enforce payment in part only,” read the judgement.
Having considered the proceedings, the court came to the firm conclusion that the appellant was not given a fair hearing as provided under the law and consequently, the orders granted were inappropriate and hence illegal.
“The trial court went for the last option instead of giving the appellant the opportunity to show cause why the security could not be forfeited or to forfeit the security by way of attachment. The process of enforcing the penalty was clearly irregular and unlawful,” read part of the judgment.
According to the judge, the fact that the appellant had stood surety for the accused person in several cases did not negate the fact that the maximum sentence he ought to have served was six months in the event he did not present the accused person before the Trial Court.
The court was in agreement with the appellant that the trial court erred when it failed to expressly order that the sentences run concurrently.
The sentences ran consecutively thus contravening the provisions of Section 131 (4) of the Criminal Procedure Code that the appellant could only have served imprisonment for a term not exceeding six months.
“Having been released from prison on March 3, 2021, any time after the six months stipulated by the law was clearly illegal, unlawful and had no legal basis. The effect of this is that the orders that were made by the learned magistrate on October 1, 2019 and confirmed on October 31, 2019 be and are hereby set aside for having been illegal and having no basis in law whatsoever," the judgement read.
For the foregoing reasons, the upshot of the court’s decision was that the former police officer’s appeal was successful.
Omulo was to complete his sentence on November 1, 2021, but was released on March 3, 2021 due to revision of his term having exhibited good conduct in prison.
Although the High Court declared the sentence illegal and unlawful, this was three months after he had served the sentence to term.
"This court is alive to the fact that the appellant has already served the full term of the sentence that was imposed on him by the trial court, having been released on March 3, 2021. Despite this having been a very unfortunate case, this court is unable to pronounce itself further on this issue as the same was not subject matter of the appeal herein," the judgement concluded.
Omulo is now seeking compensation for what he went through and is demanding reinstatement to recover the five years he lost because of the case.
As he continues doing odd jobs in construction and car wash in Moscow Estate in Kisumu, where he is currently living with his mother, Omulo vowed to seek justice by approaching his former employer directly, or through legal redress.
