Last week, former Migori Governor Okoth Obado and two of his aides were found to have a case to answer in Sharon Otieno’s death but were all acquitted of the murder of her unborn baby and here is why.
Justice Cecilia Githua in her ruling explained the reason for acquitting the three saying they ought not to have been charged with murder.
Justice Githua said this is because at the time of the alleged murder, the baby was not a person capable of being killed or murdered under section 203 of the Penal Code that provides the offence of murder.
“A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not and whether it has an independent circulation or not…” the judgement reads.
Justice Githua agreed with Lawyer Kioko Kilukumi who had defended Obado arguing that the offence of murder can only be committed against a person and not an unborn child.
Kilukumi had argued that by virtue of the born alive principle, an unborn child or fetus was actually not a person for the purpose of section 203 of the Penal Code hence the prosecution erred in law by charging the accused persons with the offence of murdering Baby Sharon.
The judge concurred with Kilukumi, ruling that Sharon’s baby had not completely proceeded in a living state from the body of its mother.
The judge said that although there was undisputed evidence that at the time Sharon Otieno met her death, she was pregnant and the fetus was 28 weeks old, the government pathologist confirmed that the Baby was killed while inside her mother’s womb.
“From the above uncontested evidence, it is clear that Baby Sharon was a fetus which had not proceeded from its mother’s body and did not therefore fit the definition of a person capable of being killed…” the court ruled.
The judge faulted the state for charging them with murder instead of the offense of killing an unborn child which carried a life imprisonment if convicted.
“I find it difficult to understand why the prosecution who obviously had possession of the evidence and must have analyzed it before making the decision to charge chose to charge the accused persons with murder in count 2 knowing full well the evidence in their possession supported a different offence. Each accused person is accordingly acquitted of the charge of murder in respect to count 2” the judge ruled.
Obado will now have to defend himself and convince the court that he did not kill the late Sharon.
