Former Migori governor Okoth Obado has lost a spirited battle to secure police-recorded statements from his son Dan Achola and four others who the prosecution does not want to call as witnesses in the murder of university student Sharon Otieno.
In dismissing the application by Obado and his co-accused Casper Obiero on Friday July 28, Lady Justice Cecilia Githua said "the application lacks merit".
Justice Githua said the court cannot compel the prosecution to provide the defence with statements of persons it does not wish to call as witnesses.
Justice Githua agreed with the Deputy Director of Public Prosecutions, Ms Gikui Gichuhi, that the prosecution's case would be prejudiced if the defence was allowed to use information contained in the statements of persons who would not be called as witnesses.
The judge therefore refused to compel the investigating officer and the Office of the Director of Public Prosecutions (ODPP) to produce the statements of the four people whose statements were recorded by the police.
Defence lawyers Kioko Kilukumi, Rodgers Sagana and Elisha Ongoya had urged the judge to compel Ms Gichuhi to give them the statements of Dan Achola (Obado's son), Olivia Adhiambo Oloo (wife of murder suspect Casper Obiero), police officer Elvis Omondi, taxi driver Jackson Otieno Gombe and Hellen Adhiambo Odie.
"The five persons are not compellable witnesses and if called they will prejudice the prosecution case as the State will not have a chance to call them to clarify issues in dispute," Justice Githua ruled.
Justice Githua said Article 50 of the Constitution requires the prosecution to provide the defence with the statements of witnesses it intends to call in order to prepare its defence.
The judge said the court could not go against the law by forcing the prosecution to provide the defence with statements from people who are not expected to testify against Obado, his former personal assistant Michael Oyamo and Obiero, who was an employee of Migori County government, whose governor is accused number one (Okoth Obado).
The defence had told the judge that they wanted the statements of the four to enable them to cross-examine a taxi driver, Jackson Otieno Gombe, who testified how he was instructed by Elvis Omondi to pick up Oyamo and three men who later turned out to be the killers of Sharon, Obado's girlfriend.
He had impregnated her and tried to terminate the pregnancy, but the student allegedly refused.
The judge heard that Obado had given her Sh30,000 to terminate the pregnancy, but Sharon's mother refused to let her kill the unborn baby.
Obado, in an application for the recorded statements of proposed witnesses, alleged that the Director of Public Prosecutions (DPP) had orchestrated a ploy to implicate him in Sharon's murder.
The defence lawyers also accused a key witness, Jackson Otieno Gombe, a taxi driver who drove Sharon and the killers to the death site in a forest near Sondu on 3 September 2023.
In his bid to counter the prosecution's key allegation that he was involved in the heinous murder of Sharon, Obado sought to produce police recorded statements from his son Dan Achola, Gombe, Olivia, Elvis Omondi, his former bodyguard Elvis Omondi (a police officer), Odie and the Safaricom call records of Gombe's mobile phone.
Defence lawyers had accused the police and the DPP of "investigative and prosecutorial impropriety".
Testifying before Justice Githua, a former MCA, Lawrence Mullah, said Obado had asked him to ask Sharon if she was also seeing his son Dan.
"Obado asked me to confirm whether my son Dan was also seeing Sharon because it is taboo in the Luo community for a father and son to befriend a girl/woman," Mullah told magistrate Cecilia Githua when he testified for three days last week.
The witness said he called Sharon from a Nairobi hotel when he was in the company of Obado and "she denied befriending the two at the same time".
Mullah told the judge that Sharon took a photo of her pregnancy and sent it to Dan via WhatsApp with a rider: "The boy I am carrying is your brother."
The MCA, who had been asked by Obado to intervene in the acrimonious relationship between her and Sharon, said the deceased girl "categorically denied that she was a friend of Obado".
Obado, Oyamo and Obiero have denied killing Sharon and her unborn baby on the night of 3 September 2018.
The hearing continues on August 2, 2023.
