NAIROBI, Kenya- Lawyer Willis Evans Otieno has questioned the consistency of prosecutorial decisions following the conviction of former Migori Governor Okoth Obado and two others over the murder of Sharon Otieno.
In a statement reacting to the High Court judgment, Otieno said the court’s reliance on the doctrine of common intention in finding Obado, Michael Oyamo and Caspal Obiero criminally responsible raised broader questions about how the same legal principles are applied in other high-profile cases.
The High Court, in convicting the three accused persons, found that they acted together in a common design, with each playing a distinct role in the planning, execution and concealment of the murder.
Otieno linked that legal reasoning to the ongoing debate around the death of blogger and teacher Albert Ojwang, questioning why Deputy Inspector General of Police Eliud Lagat was not included among the accused persons.
“If the doctrines of common intention, joint enterprise, aiding and abetting, or principal liability are to be invoked, then it is difficult to reconcile the exclusion of Deputy Inspector General Eliud Lagat from the list of accused persons in the Albert Ojwang matter,” Otieno said.
Ojwang died while in police custody after his arrest following a complaint linked to a social media post concerning Lagat.
Several police officers have since faced charges over the circumstances surrounding his death, while Lagat has not been charged in the matter.
Otieno argued that where prosecutors rely on principles that extend criminal responsibility beyond the person who directly commits an offence, those standards should be applied consistently.
“If the prosecution’s theory is that criminal liability extends beyond the immediate perpetrators to those who initiated, directed, procured, or substantially contributed to the commission of the offence, then the same legal standard must be applied consistently,” he said.
He added that selective application of criminal responsibility risks undermining confidence in the justice system.
“The Constitution guarantees equal protection and equal benefit of the law; selective prosecution offends both the appearance and the administration of justice,” Otieno stated.
The conviction of Obado, Oyamo and Obiero ended one of Kenya’s longest-running and most closely watched murder trials.
Justice Cecilia Githua held that the prosecution had proved its case beyond reasonable doubt and that the three acted with a common intention in Sharon Otieno’s killing.