From Kodera Forest to Milimani: Retracing the Procedural Integrity of the Road to Republic v Obado & 2 Others
MLR Special Edition
Draw a triangle on a map of South Nyanza and my ancestral home sits almost exactly at its centre. One corner is Rodi-Kopany (the local dub for originally “Road Company”), where Sharon Otieno hailed from. Another is Rongo’s Graca Hotel and Migori town, the seat from which Obado governed. The third is Kodera forest, where her body was found. Each corner sits roughly 12 to 15 kilometres from my ancestral home; close enough that anyone standing there could walk to any edge of that triangle within an hour, or drive it in 20 to 30 minutes tops. This case never felt like a Nairobi story projected into rural Kenya; it all happened on all three sides of a triangle my people could cross before lunch. When the story broke in September 2018, my family and neighbours back home didn’t discuss it as news. They discussed it the way you discuss something that happened two matatu stages from your gate. I have read every ruling in Criminal Case No. 46 of 2018 since, not out of professional habit, but because the file never stopped being local to where I’m from.
That’s the disclosure. Now the law.
Determination
Justice Cecilia Githua convicted Zacharia Okoth Obado, Michael Juma Oyamo, and Caspal Ojwang Obiero of Sharon Belyne Otieno’s murder on 23rd July 2026, closing a file that went through three trial judges, Covid-19 disruption, and sixteen interlocutory applications [5–7]. The story this file closes started in the dense, murky undergrowth of Kodera forest, specifically in the Owade area just adjacent to the forest, where a 26-year-old woman and her unborn child were left for a man herding cattle to find [1–3]. It ended, seven years later, under fluorescent light in a Milimani courtroom, decided in the register of section 111(1) and common intention. A former governor’s motorcade could not outrun that distance, and it showed on the day: Obado arrived for judgment in his SUV and left a few hours later in a prison lorry bound for remand. One relative of Sharon’s broke down in tears the moment the judge read the conviction. The cameras found the faces of her parents and held there long enough for the country to see what looked like a very heavy weight finally lifting off two people’s shoulders. In that moment, I summed up the message elsewhere as follows: political power in Kenya can buy you an entourage to cheer you at the courthouse gate. It cannot buy you out of a forest as dense as Kodera.
Count 2, the murder of “Baby Sharon”, had already been struck at the prima facie stage in the court’s January 2025 ruling, where the learned judge held that a 28-week foetus killed in utero does not meet the born-alive threshold under section 214 of the Penal Code and cannot be a murder victim under section 203 [25–28]. That finding was correct in January and stays correct now, for the reason that the offence that fits those facts is section 228 (killing an unborn child), and nobody was charged under it [28]. Nothing new to say there. Count 1 is where the judgment earns a proper read.
The Court is upfront that this is a fully circumstantial case: forty-two witnesses, none of whom placed any accused at the killing itself [117]. It states the governing test correctly; that the court of appeal in Sawe v Republic requires inculpatory facts incompatible with innocence and incapable of any competing reasonable explanation [123]. Fine so far and I harbour no qualms with the reasoning until this point. The trouble starts in how the Court fills the gaps in that chain of events.
Section 111(1) is not meant to fill evidentiary holes for the prosecution
At [211]–[214], the Court has a record of five phone calls between Obado and Obiero across 2nd and 3rd September 2018, which are the two days bracketting the killing, and no direct evidence of what was said on them. Rather than treating that gap as an evidentiary gap, Githua J invokes section 111(1) of the Evidence Act, the provision shifting the burden onto an accused to prove facts bringing his case “within any exception or exemption from, or qualification to” the offence charged. The court then proceeds to hold that since the content of the calls was “especially within the knowledge” of the two men, they bore the burden of explaining them. The accused having offered no explanation, the calls became proof of coordinated planning [212–214].
I submit that, at that point, the court’s reasoning does something section 111(1) was never built to do. Read the text again: it is an exception-and-defence provision dealing with alibi corroboration, statutory authorisation, insanity, that genus. It was never meant to convert an evidentiary silence about the content of a phone call into a persuasive burden on an element of murder. The judgment spends thirty paragraphs earlier reciting Lord Denning in the case of Miller v. Minister of Pensions [1947] 2 ALL ER 372 and the presumption of innocence under Article 50(2)(a) [103]–[107] before turning around and asking two accused men to prove their own innocence out of a phone log. Any advocate conducting a circumstantial murder defence from here on should read [211]–[214] as the paragraphs to distinguish, not follow, and any prosecutor should recognise it for the gift it is, because it will not survive a first appeal untouched if properly argued.
Common intention superseding an alibi the Court itself accepted
Obado’s alibi, that he was in Nairobi, not Migori, on the night Sharon was killed, is accepted as “supported by the evidence on record” [217]. He is convicted anyway, on the doctrine of common intention under sections 20 and 21 of the Penal Code: he supplied “motive, instigation and funds,” Oyamo “operationalised,” Obiero handled “logistical support and concealment” [216]. Doctrinally unremarkable, though, is that Njoroge v Republic confirms common intention needs no express pact and can be read off conduct. What should trouble a careful reader is how the court built the motive limb. Its premise rests almost entirely on the Court disbelieving Obado’s account of his own state of mind: that his continued support for Sharon during the pregnancy “was actually not sincere and was not true” [138], that his professed indifference to the story going public was a performance [142–151]. Collectively, to my mind, all these are inferences piled on inferences, with not one witness testifying to an instruction to kill. That may still clear the cumulative bar the Court sets for itself at [218]. Still, I argue that the judgment fails to ask whether the same scrutiny applied to reading Obado’s absent state of mind as applied against the two men who were physically present at Rongo’s Graca Hotel handing Sharon to her killers.
The contradiction the Court dismisses too quickly
PW9 and PW38 give irreconcilable accounts of whether Oyamo really boarded the vehicle at Graca Hotel before it drove toward Homa Bay [176–177]. The Court calls this peripheral and “not fundamental to the key issues in this case”, effectively citing the settled rule that minor inconsistencies don’t sink a prosecution case [185–189]. I concur that the rule is correctly stated. But this isn’t a peripheral detail in a case built on direct eyewitness testimony; rather, it’s a peripheral detail in a case built entirely on inference. Whether Oyamo was in the vehicle at the exact moment of handover of the deceased is about as close to the root of a circumstantial murder case as a fact can get, and the judgment waves it off too quickly with a confidence the underlying doctrine doesn’t quite permit if subjected to doctrinal and analytical rigour.
Conclusion
I end where I started. Unclothed of its Rodi-Kopany, Rongo’s Graca Hotel and Kodera Forest geographical triangle, the public will remember this case for the theatre that it was: Obado arriving for judgment in his SUV, and a few hours later leaving in a prison lorry bound for remand; a relative of Sharon’s breaking down in tears the moment the judge read out the conviction of the three accused; the cameras finding the faces of Sharon’s parents in the courtroom and holding there long enough for the country to see what looked like a very heavy burden finally lifting off their shoulders. That is the case as Kenya will carry it in memory, and it deserves to be carried that way.
But, more crucially, for a defence advocate handling the next circumstantial murder file, the key lesson is narrower and more useful: [211]–[214] is now the paragraph to cite if you’re prosecuting a case with a relatively limited evidentiary buffer, and the paragraph to attack if you’re defending one. That’s the only doctrine this file exports for practitioners. Everything else, the SUV, the lorry, the tears, the relief on two parents’ faces after seven years, is Migori and Homa Bay’s business, settled at last.
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.