Reflections from the Sharon Otieno murder Judgment

Former Migori Governor Zachary Okoth Obado and his former aides Michael Juma Oyamo and Caspal Obiero before the Milimani Law Courts in Nairobi on July 23, 2027. [David Gichuru, Standard]

I was there.

I was there on July 23, 2026, inside High Court Criminal Division Court 1 at the Milimani Law Courts when Justice Cecilia Gathua delivered judgment in one of Kenya's most closely watched murder trials. Before the court stood former Migori Governor Zachary Okoth Obado, his former Personal Assistant Michael Juma Oyamo, and Caspal Obiero, a former clerical officer with the County Government of Migori. Nearly eight years after the murder of Sharon Otieno, the trial had reached its defining moment.

Court 1 was filled to capacity long before the Judge entered. Every seat had been occupied, forcing many of us to remain standing throughout the proceedings. Television cameras lined the courtroom. Journalists occupied every available space. Representatives of human rights organisations, women's rights groups and civil society observed the proceedings closely. Security was noticeably tight both inside the courtroom and throughout the Milimani Law Courts.

Outside, two contrasting groups waited anxiously. On one side were sympathisers of Sharon Otieno's family, hoping that years of waiting would finally culminate in justice. On the other were supporters of Zachary Okoth Obado, a leader whose political influence remained considerable after serving two terms as Governor of Migori County. Having twice won the governorship on the ticket of a party other than ODM in one of the country's strongest ODM political strongholds, he continued to command significant public support.

When Justice Gathua entered the courtroom, conversation immediately ceased. Without preliminary remarks, she began reading a detailed judgment. She first explained that the case had taken almost eight years to conclude because of fourteen interlocutory applications filed by the defence before embarking on a comprehensive analysis of the evidence, the submissions by counsel and the applicable law.

The judgment reflected careful judicial reasoning. The court evaluated the credibility of witnesses, examined the consistency of their testimony and assessed the probative value of the evidence presented. Particular reliance was placed on the testimony of PW9, PW38, PW28, PW4 and PW42. By connecting separate strands of evidence, Justice Gathua demonstrated how they formed one complete chain of circumstantial evidence pointing irresistibly to the guilt of the accused.

The court also revisited the law relating to the burden of proof. Under sections 107, 108 and 109 of the Evidence Act, the legal burden remained throughout on the prosecution to prove every ingredient of the offence beyond reasonable doubt. The court also applied section 111 of the Evidence Act, explaining that where an accused raises facts especially within his or her own knowledge, an evidential burden rests upon that person to place material before the court in support of that assertion. The legal burden never shifts from the prosecution, but the evidential burden may shift in relation to facts peculiarly within the knowledge of the accused. That principle featured prominently in the court's assessment of the defence case.

The ratio decidendi of the judgment was equally clear. Although there was no eyewitness to the actual killing, the prosecution established a complete chain of circumstantial evidence that excluded every reasonable hypothesis except the guilt of the accused. Applying section 20 of the Penal Code, the court reaffirmed that criminal responsibility extends not only to the person who physically commits an offence but also to anyone who aids, abets, counsels, procures or acts in concert with the principal offender. Physical presence at the scene of a murder is therefore not a prerequisite for conviction where participation is established beyond reasonable doubt through credible evidence.

One aspect of the judgment particularly stood out. In explaining the court's duty to search for the truth through lawful evidence, Justice Gathua invoked the words of Lord Denning. It was a reaffirmation that criminal trials are not contests of popularity, political influence or public sentiment. They are judicial inquiries in which facts are tested against the law and measured against the standard of proof beyond reasonable doubt.

The defence also discharged its constitutional role with diligence. Counsel challenged the prosecution's evidence, tested the credibility of witnesses and advanced what many observers regarded as a credible alibi for the first accused. Their responsibility was to ensure that the prosecution discharged its burden of proof and that the constitutional rights of the accused were fully protected.

Having analysed the evidence in its entirety, the court found that Sharon Otieno's death had been proved, that it was unlawful and that it was accompanied by malice aforethought within the meaning of sections 203 and 206 of the Penal Code. The cumulative evidence also established motive and common intention. Justice Gathua consequently convicted Zachary Okoth Obado, Michael Juma Oyamo and Caspal Obiero of the murder of Sharon Otieno.

The court, however, reached a different conclusion on the second count relating to Sharon Otieno's unborn child. Justice Gathua acquitted all three accused on that count, holding that the foetus did not meet the legal definition of a "person" for purposes of the offence of murder under the Penal Code. The court observed that the more appropriate charge would have been child destruction under section 228 of the Penal Code, which creates the offence of unlawfully causing the death of a child capable of being born alive before it has an independent existence. The finding illustrated the importance of framing criminal charges within the precise requirements of the law.

Immediately after delivering judgment, Justice Gathua cancelled the bond and bail previously granted to Zachary Okoth Obado, Michael Juma Oyamo and Caspal Obiero and ordered that they remain in custody pending sentencing. The court further directed that Victim Impact Assessment Reports and Pre Sentence Probation Reports be prepared. Through the Probation and Aftercare Service, the court will receive information from the victim's family, the offenders' families, members of the community and other relevant persons before determining an appropriate sentence. Sentencing is a distinct judicial process that requires the court to consider the gravity of the offence, the impact upon the victims, the circumstances of the offenders, mitigation and the wider interests of justice before imposing sentence.

As the convictions were announced, Court 1 fell into complete silence. The silence lasted only a few moments before it was broken by the emotional wail of a man inside the courtroom. Those around me said he had benefited from Zachary Okoth Obado's political mentorship and support, although I could not independently verify that assertion. What I witnessed was an emotional reaction that illustrated how criminal proceedings affect not only victims and accused persons but also families, friends, supporters and entire communities.

The proceedings also highlighted a principle that is frequently misunderstood outside the legal profession. A defence advocate is not engaged to secure an acquittal at all costs. An advocate is first an officer of the court, owing an overriding duty to the administration of justice while fearlessly protecting the constitutional rights of the accused. Where the prosecution fails to prove its case, an acquittal is the only lawful outcome. Where guilt is proved beyond reasonable doubt, a conviction is the consequence of a fair trial conducted in accordance with the Constitution, the Penal Code and the Evidence Act.

As I left Court 1 that afternoon, I reflected on what I had witnessed. The proceedings affirmed that courts do not determine criminal responsibility on emotion, political influence or public opinion. They determine it on evidence, legal principle and the disciplined application of the law. In the end, the loudest voice in the courtroom was neither the media nor the crowd. It was the quiet authority of the law.