A court on Thursday released pastor Ezekiel Odero from police custody, saying the State failed to give sufficient reason to extend his stay there.
The court in Mombasa County said the state failed to prove how Mr Odero's freedom would interfere with the collection of evidence, including DNA samples from the bodies of victims of the Shakahola massacre.
Shanzu Senior Principal Magistrate Joe Omido also said the State failed to give an update on the probe, such as on whether witness statements had been recorded.
He released the televangelist on a Sh3 million bond, with a surety of the same amount, or Sh1.5million cash bail.
“The bond or bail terms … shall subsist until the respondent is formally charged and or until the investigations are completed” he said
Pastor Odero was ordered to report to the police once a week and was barred from commenting on the Shakahola case. The magistrate issued orders stating that the televangelist shall not address a gathering, make comments or discuss in public any matters concerning events relating to the Shakahola tragedy.
“The respondent shall report to the investigating officer once a week on a day of the week or time of the day to be agreed upon by the State counsel and the defense counsel. Parties to the case will be at liberty to apply for the closure of this once investigations are complete,” he said.
Pastor Ezekiel Odero at the Shanzu Law Courts in Mombasa County in this photo taken on May 2, 2023.
Photo credit: Kevin Odit | Nation Media Group
In the court's view, the State should have made use of the seven days granted to record statements from key witnesses and at least tabled sufficient materials to demonstrate steps taken to collect these statements.
“It cannot be sufficient to generally state that the respondent will interfere with witnesses. The question that is unanswered is how the respondent’s liberty hampers or impedes DNA testing. The State has not provided an answer to this question. I am persuaded that the State has not acted in good faith in seeking to continue detaining the respondent,” the magistrate stated.
The court also noted that from the new affidavit filed in court on Thursday, it was clear that the State had zeroed in on the offence of murder against the respondent but it was not persuaded that the offence being investigated was under the Prevention of Terrorism Act that allows the detention of suspects for up to 360 days.
The court was told that the detective intended to collect DNA samples from the relatives of people who died at the New Life Prayer Centre and Church for matching with bodies exhumed from mass graves in Shakahola.
Pius Muiru speaks on his relationship with pastor Ezekiel Odero
Pastor Odero and fellow televangelist Paul Mackenzie are under investigation for the Shakahola tragedy in Kilifi County, that has seen more than a hundred people die from starvation, under Mackenzie's instructions.
Mr Odero is being investigated for murder, aiding suicide, abduction, radicalisation, genocide, crimes against humanity, child cruelty, fraud, money laundering and being an accessory to crimes.
In an affidavit filed before the Shanzu court, the State said plans were underway for the medical procedure before a decision could be made on whether or not to charge Mr Odero.
"The investigators need to conduct DNA tests linking the bodies exhumed from Shakahola to relatives who buried their kin who died at the New Life Prayer Centre and Church in Mavueni," said investigator George Muriuki.
"Once the deaths that occurred at Pastor Ezekiel's church are linked to the bodies exhumed at Shakahola, a murder charge will be preferred against him.”
The State said that so far, there is evidence that deaths occurred within the church's precincts which were then recorded in the police occurrence book.
"These deaths were reported to the police but at the time of reporting, there was no reason to suspect that the causes were criminal in nature," the officer said in the affidavit.
The pastor, through his lawyers, earlier admitted that 15 people have died while seeking spiritual interventions in his New Life Prayer Centre and Church, in the one year and a month it has been operational.
Through his advocates Cliff Ombeta , Danstan Omari and Shadrack Wamboi, Mr Odero said the 15 sought his help while in critical conditions.
Prosecutors further told the Mombasa court that they had new information on the Shakahola cult deaths.
The prosecution said post-mortems on some bodies exhumed in Shakahola revealed that some victims, mostly children, died due to strangulation. The State termed this “new information” and said it amounted to “changed circumstances”.
Members of pastor Ezekiel Odero's New Life Prayer Centre and Church, sing and praise outside the Shanzu Law Courts in Mombasa County on May 2, 2023, when he was arraigned on several criminal charges.
Photo credit: Kevin Odit | Nation Media Group
The police also said that so far, investigations have established that these bodies were buried in Shakahola, a site which is a subject of ongoing investigations.
While trying to convince the court to allow them more days to continue detaining pastor Odero, the State said it had obtained new information that was not in its possession when the respondent was first arraigned.
State counsels led by Peter Kiprop and Anthony Musyoka said the new information was obtained from postmortems that showed that some of the Shakahola victims died of strangulation while others had signs of the application of force to their bodies.
"These grounds would warrant the court to extend the custodial days as there has been a substantial change of circumstances," said Mr Kiprop.
The State also noted that from the autopsies conducted so far, it was evident murder and other heinous crimes were committed against the deceased persons.
"These are new compelling reasons which were not available initially, when the State moved the court to detain the respondent for 30 days. This new information was not submitted. They warrant the extension of custodial days," said Mr Musyoka.
Mr Musyoka also submitted that the accused is an influential person who commands a huge following of thousands of believers.
"The respondent, if released, is likely to interfere with witnesses, especially those yet to give their DNA samples," said Mr Musyoka.
What the defence team said
Defence lawyers comprising Jared Magolo, Cliff Ombeta, Danstan Omari and Shadrack Wamboi opposed the continued detention of their client, saying the State had no case against him.
"We are completely opposed to the State's tactics to continue holding the respondent. Let the respondent go home or a charge sheet be produced," said Mr Ombeta
Mr Magolo asked the court to close the file and set their client free, arguing that was the only logical decision to make.
"A struggle has been made to explain the alleged changed circumstances but they are not coming forth. The autopsy result is not something new. It was a procedure that was expected. The result of the autopsy is not a change in itself. There seems to be no intention to charge the respondent ," he said
Mr Omari wondered how Mr Oderowould interfere with the collection of DNA samples and the entire medical procedure that is to be conducted by the government.
“DNA collection will be done by the government, to his exclusion. They intend to charge him with murder. He will be available. He doesn't need to be in custody,” he said, adding the police affidavit did not provide compelling reasons for their client to be denied bail.
"There is no compelling reason to keep him in custody. We ask for bail on reasonable terms, with conditions for him to comply with. The question of influencing witnesses does not arise. He is being persecuted for refusing to take a particular political position.”
Mr Wamboi asked the court to compare the post-arrest treatment of pastor Odero with that of cult leader Mackenzie.
"Mr Mackenzie's house was torched after his arrest while in pastor Ezekiel's case, congregants have been flocking the courts and singing all day long," he said, adding that the State did not give sufficient reason to warrant their client’s continued detention.
