Three days after the August 2022 General Election, Kimilili MP candidate Didmus Wekesa Barasa went missing, while his main opponent was left mourning the death of his aide Brian Olunga Odinga, who was shot dead.
Mr Olunga was a bodyguard for Mr Bryan Khaemba, the MP's main opponent in the elections.
Three key witnesses on whom the prosecution had relied to nail Mr Barasa gave conflicting evidence to the court, which led to the MP walking scot free.
Family members of the late Brian Olunga Odinga at Kalenda Malava village in Kakamega County on August 20, 2022 during the burial of the late aide to Kimilili DAP-K parliamentary candidate Brian Khaemba.The late was shot dead on August 9, 2022, in Bungoma County.
Photo credit: File | Nation
It is strongly suspected that these contradictions were deliberate, and several court documents seen by Nation.Africa seems to lend credence to this suspicion.
At 5.15 pm, Mr Khaemba, a former magistrate and currently a practising lawyer, walked into Chebukwabi Primary School in Kimilili Constituency.
His closest rival, Mr Barasa, had arrived 15 minutes earlier and was assessing the situation at the polling station.
Mr Joshua Simiyu, the driver who dropped Mr Khaemba and Olunga at the school, said they went to class 8G.
Mr Barasa was in the classroom, and election officials at the time informed the police that the duo did not take long to decide to leave the polling station.
Little did they know that Mr Khaemba's car would be targeted by a lone gunman who ended Olunga's life and led to the murder of Mr Barasa.
"When I went there, I was with the deceased, we had two vehicles, and I went to one of the polling stations. The voting was over, I found the MP there, so I just greeted everyone and left," Mr Khaemba said.
According to him, his vehicles were parked together, and he got into one driven by Mr Simiyu and within an instant, he heard gunshots and a final shot that hit the back of his vehicle.
He also said he noticed that when he left the classroom, Mr Barasa followed him.
“When I was leaving the room, the MP followed me … I didn’t know where he was going, I was minding my business and I thought he was minding his,” Mr Khaemba further said.
It was then that they realised Olunga, who had worked at a local club before his new job as a bodyguard, had been shot dead and he was lying in a pool of blood.
Witnesses who spoke about what they saw that day said that at some point, as Mr Khaemba was trying to leave, the lawmaker tried to stop the motorcade. To this day, it is not known why he tried to stop the motorcade.
Mr Simiyu, Mr Khaemba and Donald Mwema of the National Youth Service (NYS), who were listed as witness number two, agree that they heard two gunshots during the commotion when the motorcade was stopped.
"I heard two shots... yes, it was two," said Mr Khaemba in his interview with the Nation.Africa .
After the fatal shooting, Mr Barasa, who had already been declared the winner of the elections as he retained his seat, went missing.
Kimilili Member of Parliament Didmus Wekesa Barasa before the Departmental Committee on Labour at Parliament buildings Nairobi on Tuesday, November 21, 2023.
Photo credit: File | Nation
However, during the three days he was missing, he was able to post a number of tweets and interact with people. All the while, the police had been under pressure to arrest him.
The lawmaker's disappearance continues to hurt Mr Odinga, the victim's father. He wonders why the MP had to go into hiding if he was innocent.
“There was no doubt who killed my child; people said it was Didmus who fired his gun, and people saw it. If it was not him, why did he disappear for three days?” he posed.
Mr Odinga also said that as the case progressed in court, political allies close to Mr Barasa approached him and told him that the case would not result in anyone being arrested.
On August 12, 2022, the MP was arrested by officers from the Directorate of Criminal Investigations (DCI) before the case was officially opened.
Didmus: I also want to know what killed that young man
Witnesses fumble in court
During the seven-month trial, the Director of Public Prosecutions (DPP) called 21 witnesses who recorded statements. However, they were unable to provide a vivid account of what happened on that fateful day when Olunga died.
However, Mr Simiyu (Khaemba's driver) gave the most unflinching account of what happened in his statement to the police.
In his statement, Mr Barasa was identified as the man who pulled the trigger that ended Olunga's life. He had written a statement in which he described how the lawmaker had walked in front of the vehicle and fired at close range.
He said he sped away when he heard gunshots, but "immediately heard a second shot".
Another witness, Mr Mwema, and prosecution witness Emmanuel Kisilu, who was stationed at the polling station during the voting, also told the court that the MP fired in the air to calm a situation that had arisen at the polling station.
The weakening of the case was evident in the testimonies given in court by Mr Khaemba, Mr Simiyu and Mr Alfred Mbalani - the ballistics expert.
As for Mr Simiyu, he had told the police that he had seen Mr Barasa draw his gun and fire, and that he was close to their vehicle.
Here is the statement he never spoke of while testifying in court: “While I was still trying to drive off, I noticed honourable Didmus (Barasa) was signaling me to stop as well as raising his voice that we stop. He passed in front of the vehicle to the left side, still ordering us to stop, by then he had drawn his firearm and shot while in a close distance. Almost immediately, I sped off when I heard a second gunshot, which hit the left screen of the cabin.”
It is worth noting that Olunga was sitting in the left cabin next to Mr Khaemba, and that is exactly where Mr Simiyu told the police that the lawmaker had fired.
As for Mr Khaemba, who eventually came second in the elections, he told the court that Mr Barasa was on the right side of the vehicle, whereas the lawmaker was actually on the left side of the vehicle.
Mr Khaemba further told the court that he did not see who fired any of the shots, including the one that Mr Kisilu and Mr Muema had earlier said was fired by the MP to end some chaos at the station.
The confirmation that he was on the left side of the vehicle was demonstrated by Inspector Alfred Mbalani of the DCI ballistics unit. The same was corroborated by other witnesses, including Mr Simiyu, Mr Khaemba's driver.
The lawyer also informed the court that he never saw Mr Barasa displaying his gun or shooting, but heard gunshots as they drove away.
On the contrary, during Olunga's burial, Mr Khaemba said the lawmaker moved to the left side of the vehicle and shot the deceased in the right nose.
Mr Mbalani, who conducted the tests on the firearms and the bullet fragments lodged in the deceased's head, said his report was inconclusive.
He then forwarded the report to government analyst Dennis Owino Onyango, who, in his testimony, finalised that Didmus Barasa’s gun never fired the fatal shot.
With that, the case had collapsed.
DCI: Talking out of both sides of the mouth
The doubts arise from submissions made by firearms expert Alfred Mbalani, who was presented by the DCI as a ballistics examiner.
But the DCI was talking out of both sides of the mouth because in August 24, 2022, the agency had given a detailed statement indicating that Mr Barasa's gun had killed Mr Olunga.
In fact, part of that statement is still on DCI's social media platforms.
This followed a report issued by its ballistic experts after the investigating team forwarded Mr Barasa’s Glock Pistol, a cartridge retrieved from the scene and bullet fragments to the DCI's lab for forensic analysis.
The DCI that investigated Olunga's murder and the DCI that presented evidence before the High Court in Bungoma clearly could not have been the same.
Khaemba: I blame the ballistics guy
On his part, Mr Khaemba blames the collapse of the case on the ballistics expert.
"The person who made it impossible for justice to be done is none other than the ballistics expert. I went to court, I testified. My driver went to court and gave evidence. Ballistics says the gun did not fire," he said.
“The ballistics expert is the one who collapsed that case. It is unfair for me to say that the judge failed, such a case revolves around ballistics,” he added.
But while Mr Khaemba blames the ballistics expert, Justice Ougo said in her ruling that the prosecution's evidence should have been able to convict Mr Barasa had he chosen to remain silent during the trial.
In this case, Justice Rose Ougo, in her judgment, found that the evidence adduced did not require Mr Barasa to defend himself.
In her ruling, the judge then wonders who shot the deceased, as there was no evidence to show who pulled the trigger that ended Olunga's life.
“The reports on the firearms do not link the accused to be the one who shot the deceased. The only person who could shed light on the same to enable this court to put the accused on his defence is PW1 and PW8,” part of the judgment reads.
Apart from the three, other witnesses also gave conflicting testimonies about what happened on the day Olunga died.
Ms Clara Nyama Wabwire, a presiding officer who was witness number 6, and Ruth Nasimiyu, a clerk who was witness number 7, told the court that they heard more gunshots after the MP had rejoined them in the classroom.
Logically, on the day Olunga died and as per the setup of the environment, there were three firearms at the polling station at the time of his death.
Mr Barasa and Mr Khaemba were armed, and also police constable Emmanuel Kisilu, assigned to the polling station, was also armed.
Mr Khaemba told the Nation.Africa that he understands that there were three guns at the polling station when his security guard died.
“From where I sit, there were several guns, and therefore you could not tell which gun shot at the deceased. I was armed, I had a gun… I never used it… there cannot be that there was any other gun; only the MP and I had a 9mm Glock pistol. …the finding was that my firearm did not fire,” he said.
He regrets that there are no private ballistic experts who would also be engaged to assist in such investigations.
Following the airing of the programme on NTV, Mr Barasa tweeted: “Thank you, NTV, for your investigative work. I’m glad you've discovered courts don't rely on hearsay and propaganda, and that courts rely solely on sworn testimonies presented in court, not on statements made in media or press conferences.”
Back in Samitsi village, Olunga's father told Nation.Africa , " I am waiting for another government to take over and reopen my case because under the current government, justice for my son cannot be found."
This is a text version of Murder Tapes , a programme that unravels real-life murder mysteries. It airs every Thursday at 9:30pm on NTV.
Murder case collapses as key witnesses contradict each other
