Michael Oyamo, Caspal Obiero and former Migori Governor Okoth Obado in court during the delivery of judgment in the murder case of the late Sharon Otieno before Justice Cecilia Githua at Milimani High Court, Nairobi on July 23, 3026. /LEAH MUKANGAI
The High Court in Nairobi is currently delivering its judgment in the murder trial of former Migori Governor Zachary Okoth Obado, his former personal assistant Michael Oyamo, and Caspal Obiero.
The three are facing charges over the September 2018 murder of 26-year-old Rongo University student Sharon Otieno.
The prosecution presented 42 witnesses and submitted 81 exhibits, including phone call data records, SMS messages, and forensic DNA evidence establishing that Obado was the father of Sharon's unborn child.
All three accused persons denied the charges.
The defence teams have asked for an acquittal, arguing that the prosecution's case relies entirely on suspicion and circumstantial evidence rather than direct proof linking the accused to the physical execution of the crime.
While delivering her judgment at the Milimani Law Courts, Justice Cecilia Githua said the evidence showed that Sharon and her baby died from excessive haemorrhage occasioned by seven stab wounds to her abdomen.
She said while the three had all been placed on their defence for the murder of the university student, they were all acquitted of the unborn baby's murder.
Justice Githua explained that this is because, at 28 weeks, the foetus did not qualify as a human being to fit the description of murder.
"At the end of the prosecution case, this court, in a ruling delivered on January 30, 2025, determined that the prosecution had established a prima facie case against the three accused persons in count one and put them on their defence," she ruled.
At the onset of the trial, the three faced two counts of murder: the killing of Sharon and, in count two, the killing of her unborn child.
"In respect of count number two, however, the court found that, by virtue of the born-alive principle, which was incorporated into Kenyan law by Section 214 of the Penal Code, baby Sharon, being a foetus which died in its mother's womb, did not fit the description of a person within the meaning of Section 203 of the Penal Code, which creates the offence of murder," the judge said.
Section 203 of the Kenya Penal Code defines the offence of murder as when any person, with malice aforethought, causes the death of another person by an unlawful act or omission.
Section 214 of the Penal Code, Cap 63, dictates when a child is deemed to be a person.
It states that a child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother.
The "born-alive" principle, on the other hand, states that a foetus or unborn child must be completely born alive and exist independently from its mother's body before a charge of homicide or murder can be brought against someone for killing it.
"In the result, this court found that the accused persons did not have a case to answer in count two, and each of them was accordingly acquitted in respect of that count," Justice Githua ruled.
