REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL CASE NUMBER 46 OF 2018
REPUBLIC……………………………………………..……PROSECUTOR
-VERSUS-
ZACHARIA OKOTH OBADO………………………………1 ST ACCUSED
MICHAEL JUMA OYAMO………………………….……2 ND ACCUSED
CASPAL OJWANG OBIERO……………………………3 RD ACCUSED
JUDGMENT
The Information and Background.
1. The three accused persons, Zacharia Okoth Obado; Michael Juma Oyamo and Caspal Ojwang Obiero (hereinafter referred to as the 1 st , 2 nd and 3 rd accused respectively) are charged in two counts with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya.
2. The particulars in the first count are that between 3 rd and 4 th September 2018 at Owade area, Rachuonyo Sub-County within Homa Bay County, the accused persons, jointly with others not before the court, murdered Sharon Belyne Otieno (hereinafter Sharon or the deceased).
3. In the second count, it is alleged that between 3 rd and 4 th September 2018 at Owade area, Rachuonyo Sub-County within Homa Bay County, the accused persons, jointly with others not before the court, murdered Baby Sharon.
4. The court record shows that the accused persons took plea on 8 th October 2018 before Hon. Lady Justice Jessie Lesiit JA and they denied the charges in both counts. The case thereafter proceeded to full trial.
5. It is important to note, at the outset, that the trial in this case has taken a long time to conclude due to several intervening factors. Those factors include the outbreak of the Covid-19 pandemic and the resultant disruptions to court processes.
6. The trial was also punctuated by several pre- trial issues and many interlocutory applications starting with the applications relating to admission of the accused persons to bond pending trial and other applications which were handled by the second trial judge, Hon. Lady Justice Ngenye - Macharia JA which were not concluded until 27 th February 2020. I took over hearing of the case on 5 th July 2021 and in the course of the trial, a significant amount of time was taken in the determination of interlocutory applications. It is noteworthy that in the course of the trial, I heard and determined a record sixteen interlocutory applications.
7. Another reason which contributed to delay in the conclusion of this case was transfer of the trial judge in September 2022 after hearing a total of 25 witnesses. Hearing of the case thereafter stalled and resumed about an year later on 17 th July 2023 after the Hon. Chief Justice directed that I should continue trying the case to conclusion.
Counsels in the Case.
8. Before proceeding further, I think it is necessary to mention the legal team that represented the parties during the trial. When the trial started, the lead prosecution counsel was learned counsel Ms. Catherine Mwaniki assisted by learned counsel Ms. Gikui Gichuhi and learned counsel Ms. Betsy Gikonyo . In the course of the trial, Ms. Gikui Gichuhi took over the role of lead prosecution counsel assisted by learned counsel Ms. Betsy Gikonyo and Mr. Allan Mulama.
9. On the defence side, the first accused was represented by Learned counsel Mr. Kioko Kilukumi SC assisted by Mr. Rodgers Sagana and learned counsel Ms. Mwanzia . The second accused was represented by Prof. Tom Ojienda SC assisted by learned counsel Mr. Oganda Messo and learned counsel Ms. Catherine Msando . The third accused was represented by Learned counsel Mr. Elisha Ongoya and learned counsel Mr. Jack Oronga but learned counsel Mr. Ongoya dropped from the case in the course of the trial leaving Mr. Oronga to continue representation of the 3 rd accused. Lastly, the victims family was represented by learned counsel Mr. Daniel Njoroge and Learned counsel Mr. Hezekial Awour .
The Prosecution Case.
10. In support of its case, the prosecution called forty two (42) witnesses and produced a total of 81 exhibits.
11. The prosecution case is that the 1 st accused was at the material time the Governor of Migori County and he was in an intimate sexual relationship with the deceased, then a second year university student pursuing a diploma in medical health at the Rongo University. The 2 nd accused was his Personal Assistant while the 3 rd accused was a clerical officer employed by the County Government of Migori.
12. The deceased’s mother, Ms. Melinda Auma Rangili (PW30) testified that in the year 2017, she was living with sharon and her three children in her home. In February or March 2017, she realized that Sharon was pregnant and she seemed unhappy. Upon inquiry, Sharon confided in her that the 1 st accused was responsible for her pregnancy and that he had become evasive as he was not picking her calls and had also withdrawn his financial support.
13. PW30 further recalled that between March and May 2017, Sharon told her that she had met the 1 st accused in Nairobi and he had told her that he was not ready for the pregnancy and she should terminate it. He gave her Kshs. 30,000 to terminate the pregnancy and directed her to deal with the 2 nd accused for matters related to the pregnancy. It was PW30’s testimony that upon her advice, Sharon decided to keep the pregnancy.
14. According to the evidence of Mr. Lawrence Obonyo Owour (PW28) who was also referred to as Mr. Mulla , on 20 th July 2018, he was in one of the hotels in Homa Bay Town when Sharon approached him seeking his financial assistance. He promised to give her what he could on the following day. On the following day, they met in the same hotel. He gave Sharon Kshs. 1,500 and as they were having tea, she requested him to recommend a journalist who could assist by publishing her plight in the media to force the 1 st accused to give her the attention she felt she deserved.
15. On 25 th July 2018, PW28 organized a meeting between Sharon and a journalist at Tourist Hotel in Homa Bay. The journalist, PW9, testified as a protected witness under the pseudonym of XYZ. According to PW9, Sharon narrated to him her personal details and confided that she was in an intimate relationship with the 1 st accused who had abandoned her after impregnating her; that she was at the time seven months pregnant and as she was facing financial hardships, she wanted his assistance by having her story published in the newspapers to force the Governor (1 st accused) to reach out to her.
16. PW9 further recalled that he took photographs of the deceased and screen shots of WhatsApp communication between her and the 1 st accused. Sharon also played two audio recordings of conversations between her and the 1 st accused. In first recording, the 1 st accused was pleading with her to stop posting her images on social media especially Facebook particularly photos of hotels they frequented while in the second recording, the 1 st accused was beseeching her to procure an abortion stating that time was running out. They parted company with PW9 requesting Sharon to give him time to look for the 1 st accused to get his side of the story.
17. After a few days, PW9 communicated to the 1 st accused through a mutual friend that he wanted to talk to him about his relationship with Sharon. This prompted the 1 st accused to call him and in the course of their conversation, the 1 st accused invited him together with PW28 to visit him in his home at Rapogi. They both accepted the invitation and went to the 1 st accused’s home the same evening. After sharing a meal, they had a meeting in which the issue of Sharon was discussed.
18. During the meeting, the 1 st accused admitted knowledge of sharon’s pregnancy but complained that her expectations of him as narrated by PW9 were unrealistic as she was demanding for provision of a good car, a house in Nairobi and a good job.
19. PW9 further testified that when communicating Sharon’s demands, he had shared with the 1 st accused that he had Sharon’s instructions to publish their illicit love affair in the media if her demands were not me. In his response, the 1 st accused requested PW28 to contain the situation by talking to Sharon and identifying her needs. He also advised that any future communication relating to Sharon’s pregnancy should be channeled through the 2 nd accused.
20. According to PW9, at the end of the visit and as the 1 st accused was bidding them goodbye, the 1 st accused instructed him not to tell anybody about Sharon’s pregnancy. The 2 nd accused also called him a few days later and notified him that sharon’s matter would be resolved amicably.
21. About a week after the Rapogi meeting, PW28 met the 1 st accused alone at the Serena Hotel and later at Heron Hotel in Nairobi. He shared with the 1 st accused information received from Sharon that she required between Kshs. 20,000,000 to Kshs. 25,000,000 to buy a house in Nairobi or Kisumu; a good car and money for her upkeep. The 1 st accused made a counter proposal offering to buy a plot at Homa Bay on which he would construct for her a three bedroomed house.
22. PW28 recalled that he subsequently talked to Sharon and she accepted the 1 st accused’s counter proposal; that when he communicated to the 1 st accused Sharon’s acceptance of his proposal, the 1 st accused promised to avail the money needed for purchase of the plot and construction of the house by end of August 2018.
23. According to the further evidence of PW9, on 23 rd August 2018, he received a call from Sharon informing him that the 1 st accused, through the 2 nd accused, had requested to meet them in Nairobi urgently; that he called the 2 nd accused who confirmed the information and added that the 1 st accused would meet their transportation costs. On the night of 23 rd and 24 th August 2018 at around 3 am, he received Kshs. 22,000 through Mpesa from a lady identified as Veronica Wangechi (PW4).
24. On her part, PW4 testified that she was on duty as a receptionist at Sagret Hotel, Nairobi when on 23 rd August 2018, a man she was unable to identify requested her to send through her Safaricom line Kshs. 22,210 to Mobile Number 0710345489 (PW9’s mobile number) allegedly because he did not have a Safaricom line.
25. The testimony of Mr. Alex Kuya Omamo , the Head of Security at Flight 540 Airline (PW5) supported PW9’s evidence that on 24 th August 2018, PW9 took an early morning flight from Kisumu to Nairobi together with Sharon. PW9 recalled that on arrival, they were met by the 2 nd accused at Capital Centre who later catered for their accommodation as he allegedly made efforts to schedule a meeting for them with the 1 st accused.
26. Unknown to Sharon and PW9, the 2 nd accused had also facilitated the travel of PW28 to Nairobi on the same day ostensibly for the same purpose of having a meeting with the 1 st accused. The promised meeting however failed to materialize and disappointed, they all returned to Homa Bay in the evening of the following day.
27. According to PW9 and PW28, between 27 th and 29 th August 2018, the 2 nd accused called them separately using an Airtel line No.0739473321 informing them that in future, they should only communicate with him using that number. He however gave them different reasons explaining why he had acquired the new Airtel line (number). According to PW9, he claimed that it was because he had lost his Safaricom line while according to PW28, he claimed that his Safaricom line had been blocked by children and he had not had time to unblock it.
28. Through the evidence of Noah Omondi Odoyo (PW26), an Airtel shop attendant in Migori, the prosecution alleged that the above Airtel line was registered on 27 th August 2018 using national identity card number 0639906 issued in the name of Vincent Abonyo (PW8). In his testimony, PW8 recalled that he had lost his identity card while at Kenya Commercial Bank, Migori branch. He denied having registered the aforesaid Airtel line.
29. PW28 further recalled that on 27 th August 2018, the 2 nd accused called him using the newly acquired Airtel line. They subsequently met outside Tausi Hotel at Rodi and during the meeting, the 2 nd accused asked him to keep off Sharon’s affairs as he would henceforth deal with her issues.
30. On being cross-examined by Mr. Awour for the victims family, PW28 recalled having written a statement confirming that in that meeting, the 2 nd accused had asked him how ‘they” could get access to PW9’s and Sharon’s mobile phones since they contained evidence that could “ take” the Governor to the media.
31. According to the evidence of PW9, Sharon called him on 3 rd September 2018 at about 5:00 p.m. informing him that the 2 nd accused had conveyed a request from the 1 st accused that they should meet at Rodikopany, Homa Bay County. They acceded to the request and upon arrival at Rodikopany, Sharon contacted the 2 nd accused who redirected them to Rongo Town. They proceeded to Graca Hotel in Rongo and waited for the 2 nd accused. When he eventually joined them in the Hotel, he informed them that the place was too open for him to communicate the message he had from the 1 st accused. He paid the bill for the drink Sharon had taken and requested that they move to another venue.
32. PW9 further testified that as they exited the hotel, they found a dark vehicle parked outside the hotel entrance which the 2 nd accused asked them to board claiming it belonged to him. On boarding the vehicle, he noted that it already had two occupants- a driver and his co-driver. PW9 sat behind the driver, Sharon sat in the middle while the 2 nd accused sat behind the front passenger seat.
33. The vehicle left the hotel and was first driven towards Rongo Town but subsequently changed direction towards Homabay Town. Along the way, near a petrol station, he saw two people standing by the road side. It was now around 7.30pm. The 2 nd accused ordered the driver to slow down and when the driver complied with his instructions, he exited the vehicle. The two unknown men then entered the vehicle and joined PW9 and Sharon at the vehicle’s rear seat sandwiching them between them.
34. PW9 recalled that although he was able to see the two men seated with them at the rear seat, he was unable to see the driver and the man seated at the co-driver’s seat who appeared to be receiving instructions from somewhere as he was constantly on the phone.
35. As the vehicle was being driven towards Homa Bay, one of the men ordered them to switch off their mobile phones and surrender them together with their other valuables which they did. The same man asked him whether he had a tape recorder and the other man started searching his pockets. The man seated next to Sharon asked her about her relationship with PW9 and how she had met the Governor which she explained. The man seated next to PW9 asked him how he had met Sharon and why he was doing a story about the Governor. And as Sharon got distressed and started crying, one of the men told her to stop crying as they were taking her to the Governor.
36. As the conversation continued, the man seated next to him became violent and started strangling him asking him why he was following the story about the Governor. The unknown man lowered his seat to an inclined position and taking advantage of this development, PW9 wiggled his way from his grasp to the door, opened it and escaped from the moving vehicle.
37. PW9 further recalled that on jumping out of the vehicle, he fell on the tarmac and rolled off the road. The vehicle stopped a distance away and two people started running towards him. He started running away in the direction of lights he was seeing from a distance which led him to a home in which he took refuge.
38. The home belonged to Mr. Kennedy Onyango Kasera who testified as PW27. In his evidence, PW27 narrated how on 3 rd September 2018 at around 8.30pm, a man stormed into his house in a panic and went straight to his bedroom and hid under the bed. He was surprised because the man was a stranger to him. Upon inquiry, the man (obviously referring to PW9) explained how he had been abducted together with Sharon and how he had escaped. He noted that he had fresh injuries on his hands and knees which were bleeding. He drove him to Kadel Police Post where they reported the matter to PC Willy Okoti (PW6).
39. PW6 in his testimony recalled having noted PW9’s injuries on his palms and knees and that his trouser was torn around the knees. He also noted that he was visibly shaken as he was trembling when making his report. He booked the report and also disseminated it to the OCS Kendu Bay Police Station who, accompanied by other police Officers who included PC Ole Tuwai Birgen (PW11) and PC Roimen Leisalel (PW12), went to Kadel Police Post, picked PW9 and escorted him to Kendu Bay Sub-County Hospital for treatment.
40. At the hospital, he was treated by a clinical officer, Mr.Harun Diero Ajwang (PW10). PW10 in his evidence recalled having noted fresh injuries on PW9’s hands and knee joints which were bleeding. He classified the injuries as soft tissue injuries since there was no fracture. He took treatment notes on a notebook on the basis of which he later filled a P3 form which he produced as P Exhibit 16.
41. In the course of his long and detailed testimony which the court recorded for several days, PW9 identified the vehicle in which he was allegedly abducted together with Sharon. It was motor vehicle registration no. KCL 481K, Toyota Fielder grey in colour (PExhibit17) which according to records maintained at the National Transport and Safety Authority (NTSA) was owned by Ms.Olivia Oloo , the 3 rd Accused’s wife. The vehicle was being operated as a taxi and its driver was Mr. Jackson Otieno Gombe who testified as PW38.
42. According to PW38, on 3 rd September 2018, the 3 rd accused’s wife instructed him to take the vehicle for valuation at Invesco Insurance in Migori. The 3 rd accused directed him to the insurance company offices to get the valuers telephone number. After getting in touch with the valuer, he proceeded to Olivia’s house to get a copy of the vehicle’s logbook. On arrival, he found the 2 nd , the 3 rd accused and another person identified as Diki seated together outside the house. He recalled that as he was leaving after giving him a copy the logbook, the 3 rd accused’s wife warned him not to tell anyone what he had seen inside the home.
43. In addition, PW38 testified that later the same day between 4:00 and 5:00 pm, a Police Officer named Elvis (DW3), who was the 1 st accused’s bodyguard, called him instructing him to pick the 2 nd accused at Uriri at 6:00 pm; that the 2 nd accused would thereafter direct him where to go. He knew Elvis as he used to see him with the 1 st and 3 rd accused and he sometimes gave him work such as picking up customers or relaying information to the 3 rd accused or his wife.
44. In his testimony, PW38 recalled that following the above instructions, he drove to Uriri where he found the 2 nd accused in the company of two unknown men. They boarded the vehicle and the 2 nd accused directed him to drive them to Graca Hotel in Rongo Town which he did. At the hotel, the 2 nd accused and the two men alighted. The 2 nd accused went to the hotel alone while the two other men stood behind the vehicle. After about 10-20 minutes, the 2 nd accused came out of the hotel accompanied by a lady who appeared pregnant and another man.
45. According to PW38, all the people who had been in the company of the 2 nd accused boarded the vehicle but the 2 nd accused did not. One of the unidentified men instructed him to drive to a nearby petrol station and park by the road side which he did. Shortly thereafter, the 2 nd accused joined them appearing to have crossed over on foot from Graca Hotel. The 2 nd accused engaged in a discussion with the two men and another who had been standing by the roadside after which the men boarded the vehicle, one on the passenger seat and the other two at the rear seat where the pregnant lady ( Sharon) and the other man ( PW9) had sat.
46. When driving towards Kisumu as directed by one of the unidentified men, he heard the unknown men questioning Sharon and PW9 about their relationship with the 1 st accused. He did not follow the conversation as he increased the volume of music in the vehicle. After driving for a while, he sensed a gush of wind blow into the vehicle as if the rear door or window had been opened. He was at the time driving at a speed of about 60KM per hour. He slowed down and asked what was happening. One of the unknown men seated behind him, in response, remarked, “ wachana na hii fala ,” and he proceeded with the journey.
47. As he continued driving, he was being directed by one of the unidentified men on the roads to follow and he was eventually led to a rough road in a forested area with no homes nearby. He was instructed to stop, switch off the vehicle’s engine as well as lights and wait. This is when he realized that one man was nolonger in the vehicle as only three men and the lady alighted from the vehicle. After about 10–20 minutes, the men returned without the lady. Upon inquiry, he was informed that the lady had been left at their home. He was then directed to drive to Uriri, where the unknown men alighted between 9:00 p.m. and 10:00 p.m. He thereafter drove to his home in Migori.
48. PW38 also recalled that on the morning of the following day, Olivia summoned him to her house for no apparent reason and on arrival, the 3 rd accused took the car keys, left with them and returned them after a short while and without offering any explanation, ordered him to go back to work.
49. The prosecution also tendered evidence that on the same morning (4 th September 2018), PW22 Mr. Justus Muindi, a clinical Officer at Migori County Referral Hospital received a call from a man who identified himself as Caspal Obiero . He knew Caspa l before because of his association with the then Governor of Migori County who as noted earlier was the 1 st accused. He identified Caspal in court as the 3 rd accused.
50. PW22 recalled that after their brief conversation, the 3 rd accused went to see him in the hospital accompanied by the 2 nd accused. The 3 rd accused informed him that they wanted his assistance on an issue related to treatment. The 2 nd accused then explained that he had been attacked by unknown people at Kisii the previous night and was robbed of money belonging to his boss, the 1 st accused; that he needed a medical request form issued by a hospital in Kisii confirming that he had sustained injuries on the previous night in order to protect his job.
51. PW22 then contacted his colleague at Kisii Teaching and Referral Hospital (KTRH) Mr. Cliff Momanyi who testified as PW20. PW20 recalled that on 4 th September 2018 at around 10.30 am, he received a request from PW22 to assist his friend identified as Mr. Michael Oyamo by issuing him with a medical request form prescribing multiple medical investigations including chest x-rays, MRI and CT scans. Although he did not know or examine the said Michael Oyamo, he fabricated treatment notes and a computer generated outpatient card purportedly issued by KTRH as a favour to his friend PW22. The false medical records were produced in evidence as PExhibit 31 (a) and (b).
52. On the same day at around midday, (4 th September 2018), CPL Philomon Fidel Isiepay (PW23) testified that he was at Uriri Police Station when the 2 nd accused went to the Police Station and reported a case of abduction. He reported that on the evening of 3 rd September 2018, he was at Graca Hotel with a lady known as Sharon and another man and that on leaving the hotel, they were abducted in an undisclosed vehicle; that he found himself in Kisii the following morning having lost Kshs. 270,000 belonging to the 1 st accused.
53. PW24 on his part recalled that upon instructions by PW23, he recorded the 2 nd accused’s abduction report in the stations occurrence book. He produced the OB entry as PExhibit 35. After the 2 nd accused‘s report was recorded, PW23 was made aware of the abduction report made by PW9 the previous evening at Kadel Police Post. He found the 2 nd accused’s report suspicious and arrested him for further investigations.
54. Later the same day at around 3pm, Sharon’s lifeless body and that of her unborn child was discovered in a bush near Owade river by Mr. Moses Onditi Oguta (PW7), a resident of Owade village. He was shepherding his cattle towards his home when he stumbled upon the body. He reported the matter at Oyugis Police Station. He was escorted by Police Officers, namely, Inspector Mary Mogire (PW18) and PC Sammy Mindiki (PW19) to the scene where they found members of the public already gathered. They saw the body which was naked lying face down in a pool of blood.
55. As part of her preliminary investigations, PW18 recovered and prepared an inventory of the items they found at the scene. The items included items of clothing and open shoes belonging to Sharon, two used condoms, 3 sachets of trust condoms, two cover packets of trust condoms and a sachet of Simba Warigi (illicit brew). They collected the body and took it to Rachuonyo District Hospital Mortuary for preservation.
56. On 8 th September 2018, Sharon’s body was identified by Mr. Victor Ochola Onyango (PW29), the deceased’s uncle to the Government Pathologist Dr. Johansen Oduor (PW1) who conducted an autopsy on the body. In his testimony, PW1 recalled that on examining the body, he noted multiple external injuries consisting of two slash wounds under the right and left ear and a total of seven deep stab wounds, one at the deceased’s abdominal area and the others at several areas of her back. He opined that the deceased's cause of death was severe haemorrhage due to penetrating force trauma with features of manual strangulation. He documented his findings in a post-mortem report which he produced as PExhibit 1.
57. In the course of his examination, PW1 also noted that the deceased’s uterus had a dead foetus which was 28 weeks old. The stab wound to Sharon’s abdomen had penetrated to the uterus, gone through the foetus ‘s abdomen and came out through the umbilicus. He also prepared and signed a post- mortem report form in respect of the foetus which he produced as PExhibit 1 (b). Upon cross- examination by Mr. Kilukumi SC for the 1 st accused, PW1 confirmed that with that kind of injury, the foetus did not have a chance of being born.
58. As reports in both the mainstream and social media platforms started circulating on the circumstances in which Sharon and her unborn baby had been found dead and given the public interest the reports had generated, a team of officers from the Directorate of Criminal Investigations Headquarters (DCI Headquaters) in Nairobi was dispatched to Homa Bay to take over investigations into the matter. They included Chief Inspector Nicholas Konara Ole Sena (PW42) who narrated to the court how investigations in this case were undertaken by the investigating team from DCI Headquaters.
59. According to PW42, together with his co - investigators, they arrived in Homa Bay on 6 th September 2018 and commenced investigations. They found the 2 nd accused already under arrest. In the course of their investigations, they recorded and reviewed statements from persons
who testified as prosecution witnesses including PW21, the Health Records and Information Officer at KTRH. He established from PW21 that the medical records obtained by the 2 nd accused from PW20 purportedly issued by KTRH did not emanate from the hospital and they were in fact forgeries. He also claimed that he obtained the forged medical records at Uriri police station where the 2 nd accused had presented them when making a false report about his alleged abduction.
60. PW42 also visited Graca Hotel in an attempt to obtain CCTV footage but was unable to obtain any as the device for storage of CCTV images (DVR) was faulty. His investigations also led to recovery of Motor Vehicle KCL 481K which had been used in the abduction of Sharon and PW9. He produced the vehicle in evidence as PExhibit 17.
61. Further investigations led to analysis of DNA profiles generated from the 1 st accused and Baby Sharon which, according to the Government Analyst Mr. John Kimani Mungai (PW3) revealed that the 1 st accused was the biological father of Baby Sharon. He produced a report documenting his findings dated 11 th March 2020 as PExhibit 11.
62. PW42 also caused forensic examination of mobile phones, including an iPhone belonging to the 1 st accused and a Huawei tablet belonging to the deceased. The phones were produced as P Exhibits 39, 41, 43 and 49 and the cybercrime forensic report showing text messages and images contained in the aforesaid phones was produced as P Exhibit 51 (a). Notably, the report showed that the phone marked D which belonged to the 1 st accused had text messages for two days only- the 12 th and 13 th of September 2018.
63. PW42 also obtained call data records from two service providers namely, Airtel and Safaricom Ltd in respect of mobile numbers used by the deceased, XYZ, PW28, Accused 1, Accused 2, Accused 3 and PW38 together with their Mpesa records. The reports containing the above details were produced as PExhibits 12,63,64, 65,66,67,70,71,72,73 and 74.
64. PW41 from Airtel Ltd produced subscriber details and call data records for Airtel line No. 0739473321 which was being used by the 2 nd accused. The subscriber details showed that the line was registered on 27 th August 2018 under the name of Vincent Abonyo of ID card No. 639906.
65. In the course of his investigations, PW42 also recorded the statement of PW39, Ms. Fatma Khalid, an administrator in the car tracking firm known as Qool Point Services which showed that the car tracking system fixe
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL CASE NUMBER 46 OF 2018
REPUBLIC……………………………………………..……PROSECUTOR
-VERSUS-
ZACHARIA OKOTH OBADO………………………………1 ST ACCUSED
MICHAEL JUMA OYAMO………………………….……2 ND ACCUSED
CASPAL OJWANG OBIERO……………………………3 RD ACCUSED
JUDGMENT
The Information and Background.
1. The three accused persons, Zacharia Okoth Obado; Michael Juma Oyamo and Caspal Ojwang Obiero (hereinafter referred to as the 1 st , 2 nd and 3 rd accused respectively) are charged in two counts with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya.
2. The particulars in the first count are that between 3 rd and 4 th September 2018 at Owade area, Rachuonyo Sub-County within Homa Bay County, the accused persons, jointly with others not before the court, murdered Sharon Belyne Otieno (hereinafter Sharon or the deceased).
3. In the second count, it is alleged that between 3 rd and 4 th September 2018 at Owade area, Rachuonyo Sub-County within Homa Bay County, the accused persons, jointly with others not before the court, murdered Baby Sharon.
4. The court record shows that the accused persons took plea on 8 th October 2018 before Hon. Lady Justice Jessie Lesiit JA and they denied the charges in both counts. The case thereafter proceeded to full trial.
5. It is important to note, at the outset, that the trial in this case has taken a long time to conclude due to several intervening factors. Those factors include the outbreak of the Covid-19 pandemic and the resultant disruptions to court processes.
6. The trial was also punctuated by several pre- trial issues and many interlocutory applications starting with the applications relating to admission of the accused persons to bond pending trial and other applications which were handled by the second trial judge, Hon. Lady Justice Ngenye - Macharia JA which were not concluded until 27 th February 2020. I took over hearing of the case on 5 th July 2021 and in the course of the trial, a significant amount of time was taken in the determination of interlocutory applications. It is noteworthy that in the course of the trial, I heard and determined a record sixteen interlocutory applications.
7. Another reason which contributed to delay in the conclusion of this case was transfer of the trial judge in September 2022 after hearing a total of 25 witnesses. Hearing of the case thereafter stalled and resumed about an year later on 17 th July 2023 after the Hon. Chief Justice directed that I should continue trying the case to conclusion.
Counsels in the Case.
8. Before proceeding further, I think it is necessary to mention the legal team that represented the parties during the trial. When the trial started, the lead prosecution counsel was learned counsel Ms. Catherine Mwaniki assisted by learned counsel Ms. Gikui Gichuhi and learned counsel Ms. Betsy Gikonyo . In the course of the trial, Ms. Gikui Gichuhi took over the role of lead prosecution counsel assisted by learned counsel Ms. Betsy Gikonyo and Mr. Allan Mulama.
9. On the defence side, the first accused was represented by Learned counsel Mr. Kioko Kilukumi SC assisted by Mr. Rodgers Sagana and learned counsel Ms. Mwanzia . The second accused was represented by Prof. Tom Ojienda SC assisted by learned counsel Mr. Oganda Messo and learned counsel Ms. Catherine Msando . The third accused was represented by Learned counsel Mr. Elisha Ongoya and learned counsel Mr. Jack Oronga but learned counsel Mr. Ongoya dropped from the case in the course of the trial leaving Mr. Oronga to continue representation of the 3 rd accused. Lastly, the victims family was represented by learned counsel Mr. Daniel Njoroge and Learned counsel Mr. Hezekial Awour .
The Prosecution Case.
10. In support of its case, the prosecution called forty two (42) witnesses and produced a total of 81 exhibits.
11. The prosecution case is that the 1 st accused was at the material time the Governor of Migori County and he was in an intimate sexual relationship with the deceased, then a second year university student pursuing a diploma in medical health at the Rongo University. The 2 nd accused was his Personal Assistant while the 3 rd accused was a clerical officer employed by the County Government of Migori.
12. The deceased’s mother, Ms. Melinda Auma Rangili (PW30) testified that in the year 2017, she was living with sharon and her three children in her home. In February or March 2017, she realized that Sharon was pregnant and she seemed unhappy. Upon inquiry, Sharon confided in her that the 1 st accused was responsible for her pregnancy and that he had become evasive as he was not picking her calls and had also withdrawn his financial support.
13. PW30 further recalled that between March and May 2017, Sharon told her that she had met the 1 st accused in Nairobi and he had told her that he was not ready for the pregnancy and she should terminate it. He gave her Kshs. 30,000 to terminate the pregnancy and directed her to deal with the 2 nd accused for matters related to the pregnancy. It was PW30’s testimony that upon her advice, Sharon decided to keep the pregnancy.
14. According to the evidence of Mr. Lawrence Obonyo Owour (PW28) who was also referred to as Mr. Mulla , on 20 th July 2018, he was in one of the hotels in Homa Bay Town when Sharon approached him seeking his financial assistance. He promised to give her what he could on the following day. On the following day, they met in the same hotel. He gave Sharon Kshs. 1,500 and as they were having tea, she requested him to recommend a journalist who could assist by publishing her plight in the media to force the 1 st accused to give her the attention she felt she deserved.
15. On 25 th July 2018, PW28 organized a meeting between Sharon and a journalist at Tourist Hotel in Homa Bay. The journalist, PW9, testified as a protected witness under the pseudonym of XYZ. According to PW9, Sharon narrated to him her personal details and confided that she was in an intimate relationship with the 1 st accused who had abandoned her after impregnating her; that she was at the time seven months pregnant and as she was facing financial hardships, she wanted his assistance by having her story published in the newspapers to force the Governor (1 st accused) to reach out to her.
16. PW9 further recalled that he took photographs of the deceased and screen shots of WhatsApp communication between her and the 1 st accused. Sharon also played two audio recordings of conversations between her and the 1 st accused. In first recording, the 1 st accused was pleading with her to stop posting her images on social media especially Facebook particularly photos of hotels they frequented while in the second recording, the 1 st accused was beseeching her to procure an abortion stating that time was running out. They parted company with PW9 requesting Sharon to give him time to look for the 1 st accused to get his side of the story.
17. After a few days, PW9 communicated to the 1 st accused through a mutual friend that he wanted to talk to him about his relationship with Sharon. This prompted the 1 st accused to call him and in the course of their conversation, the 1 st accused invited him together with PW28 to visit him in his home at Rapogi. They both accepted the invitation and went to the 1 st accused’s home the same evening. After sharing a meal, they had a meeting in which the issue of Sharon was discussed.
18. During the meeting, the 1 st accused admitted knowledge of sharon’s pregnancy but complained that her expectations of him as narrated by PW9 were unrealistic as she was demanding for provision of a good car, a house in Nairobi and a good job.
19. PW9 further testified that when communicating Sharon’s demands, he had shared with the 1 st accused that he had Sharon’s instructions to publish their illicit love affair in the media if her demands were not me. In his response, the 1 st accused requested PW28 to contain the situation by talking to Sharon and identifying her needs. He also advised that any future communication relating to Sharon’s pregnancy should be channeled through the 2 nd accused.
20. According to PW9, at the end of the visit and as the 1 st accused was bidding them goodbye, the 1 st accused instructed him not to tell anybody about Sharon’s pregnancy. The 2 nd accused also called him a few days later and notified him that sharon’s matter would be resolved amicably.
21. About a week after the Rapogi meeting, PW28 met the 1 st accused alone at the Serena Hotel and later at Heron Hotel in Nairobi. He shared with the 1 st accused information received from Sharon that she required between Kshs. 20,000,000 to Kshs. 25,000,000 to buy a house in Nairobi or Kisumu; a good car and money for her upkeep. The 1 st accused made a counter proposal offering to buy a plot at Homa Bay on which he would construct for her a three bedroomed house.
22. PW28 recalled that he subsequently talked to Sharon and she accepted the 1 st accused’s counter proposal; that when he communicated to the 1 st accused Sharon’s acceptance of his proposal, the 1 st accused promised to avail the money needed for purchase of the plot and construction of the house by end of August 2018.
23. According to the further evidence of PW9, on 23 rd August 2018, he received a call from Sharon informing him that the 1 st accused, through the 2 nd accused, had requested to meet them in Nairobi urgently; that he called the 2 nd accused who confirmed the information and added that the 1 st accused would meet their transportation costs. On the night of 23 rd and 24 th August 2018 at around 3 am, he received Kshs. 22,000 through Mpesa from a lady identified as Veronica Wangechi (PW4).
24. On her part, PW4 testified that she was on duty as a receptionist at Sagret Hotel, Nairobi when on 23 rd August 2018, a man she was unable to identify requested her to send through her Safaricom line Kshs. 22,210 to Mobile Number 0710345489 (PW9’s mobile number) allegedly because he did not have a Safaricom line.
25. The testimony of Mr. Alex Kuya Omamo , the Head of Security at Flight 540 Airline (PW5) supported PW9’s evidence that on 24 th August 2018, PW9 took an early morning flight from Kisumu to Nairobi together with Sharon. PW9 recalled that on arrival, they were met by the 2 nd accused at Capital Centre who later catered for their accommodation as he allegedly made efforts to schedule a meeting for them with the 1 st accused.
26. Unknown to Sharon and PW9, the 2 nd accused had also facilitated the travel of PW28 to Nairobi on the same day ostensibly for the same purpose of having a meeting with the 1 st accused. The promised meeting however failed to materialize and disappointed, they all returned to Homa Bay in the evening of the following day.
27. According to PW9 and PW28, between 27 th and 29 th August 2018, the 2 nd accused called them separately using an Airtel line No.0739473321 informing them that in future, they should only communicate with him using that number. He however gave them different reasons explaining why he had acquired the new Airtel line (number). According to PW9, he claimed that it was because he had lost his Safaricom line while according to PW28, he claimed that his Safaricom line had been blocked by children and he had not had time to unblock it.
28. Through the evidence of Noah Omondi Odoyo (PW26), an Airtel shop attendant in Migori, the prosecution alleged that the above Airtel line was registered on 27 th August 2018 using national identity card number 0639906 issued in the name of Vincent Abonyo (PW8). In his testimony, PW8 recalled that he had lost his identity card while at Kenya Commercial Bank, Migori branch. He denied having registered the aforesaid Airtel line.
29. PW28 further recalled that on 27 th August 2018, the 2 nd accused called him using the newly acquired Airtel line. They subsequently met outside Tausi Hotel at Rodi and during the meeting, the 2 nd accused asked him to keep off Sharon’s affairs as he would henceforth deal with her issues.
30. On being cross-examined by Mr. Awour for the victims family, PW28 recalled having written a statement confirming that in that meeting, the 2 nd accused had asked him how ‘they” could get access to PW9’s and Sharon’s mobile phones since they contained evidence that could “ take” the Governor to the media.
31. According to the evidence of PW9, Sharon called him on 3 rd September 2018 at about 5:00 p.m. informing him that the 2 nd accused had conveyed a request from the 1 st accused that they should meet at Rodikopany, Homa Bay County. They acceded to the request and upon arrival at Rodikopany, Sharon contacted the 2 nd accused who redirected them to Rongo Town. They proceeded to Graca Hotel in Rongo and waited for the 2 nd accused. When he eventually joined them in the Hotel, he informed them that the place was too open for him to communicate the message he had from the 1 st accused. He paid the bill for the drink Sharon had taken and requested that they move to another venue.
32. PW9 further testified that as they exited the hotel, they found a dark vehicle parked outside the hotel entrance which the 2 nd accused asked them to board claiming it belonged to him. On boarding the vehicle, he noted that it already had two occupants- a driver and his co-driver. PW9 sat behind the driver, Sharon sat in the middle while the 2 nd accused sat behind the front passenger seat.
33. The vehicle left the hotel and was first driven towards Rongo Town but subsequently changed direction towards Homabay Town. Along the way, near a petrol station, he saw two people standing by the road side. It was now around 7.30pm. The 2 nd accused ordered the driver to slow down and when the driver complied with his instructions, he exited the vehicle. The two unknown men then entered the vehicle and joined PW9 and Sharon at the vehicle’s rear seat sandwiching them between them.
34. PW9 recalled that although he was able to see the two men seated with them at the rear seat, he was unable to see the driver and the man seated at the co-driver’s seat who appeared to be receiving instructions from somewhere as he was constantly on the phone.
35. As the vehicle was being driven towards Homa Bay, one of the men ordered them to switch off their mobile phones and surrender them together with their other valuables which they did. The same man asked him whether he had a tape recorder and the other man started searching his pockets. The man seated next to Sharon asked her about her relationship with PW9 and how she had met the Governor which she explained. The man seated next to PW9 asked him how he had met Sharon and why he was doing a story about the Governor. And as Sharon got distressed and started crying, one of the men told her to stop crying as they were taking her to the Governor.
36. As the conversation continued, the man seated next to him became violent and started strangling him asking him why he was following the story about the Governor. The unknown man lowered his seat to an inclined position and taking advantage of this development, PW9 wiggled his way from his grasp to the door, opened it and escaped from the moving vehicle.
37. PW9 further recalled that on jumping out of the vehicle, he fell on the tarmac and rolled off the road. The vehicle stopped a distance away and two people started running towards him. He started running away in the direction of lights he was seeing from a distance which led him to a home in which he took refuge.
38. The home belonged to Mr. Kennedy Onyango Kasera who testified as PW27. In his evidence, PW27 narrated how on 3 rd September 2018 at around 8.30pm, a man stormed into his house in a panic and went straight to his bedroom and hid under the bed. He was surprised because the man was a stranger to him. Upon inquiry, the man (obviously referring to PW9) explained how he had been abducted together with Sharon and how he had escaped. He noted that he had fresh injuries on his hands and knees which were bleeding. He drove him to Kadel Police Post where they reported the matter to PC Willy Okoti (PW6).
39. PW6 in his testimony recalled having noted PW9’s injuries on his palms and knees and that his trouser was torn around the knees. He also noted that he was visibly shaken as he was trembling when making his report. He booked the report and also disseminated it to the OCS Kendu Bay Police Station who, accompanied by other police Officers who included PC Ole Tuwai Birgen (PW11) and PC Roimen Leisalel (PW12), went to Kadel Police Post, picked PW9 and escorted him to Kendu Bay Sub-County Hospital for treatment.
40. At the hospital, he was treated by a clinical officer, Mr.Harun Diero Ajwang (PW10). PW10 in his evidence recalled having noted fresh injuries on PW9’s hands and knee joints which were bleeding. He classified the injuries as soft tissue injuries since there was no fracture. He took treatment notes on a notebook on the basis of which he later filled a P3 form which he produced as P Exhibit 16.
41. In the course of his long and detailed testimony which the court recorded for several days, PW9 identified the vehicle in which he was allegedly abducted together with Sharon. It was motor vehicle registration no. KCL 481K, Toyota Fielder grey in colour (PExhibit17) which according to records maintained at the National Transport and Safety Authority (NTSA) was owned by Ms.Olivia Oloo , the 3 rd Accused’s wife. The vehicle was being operated as a taxi and its driver was Mr. Jackson Otieno Gombe who testified as PW38.
42. According to PW38, on 3 rd September 2018, the 3 rd accused’s wife instructed him to take the vehicle for valuation at Invesco Insurance in Migori. The 3 rd accused directed him to the insurance company offices to get the valuers telephone number. After getting in touch with the valuer, he proceeded to Olivia’s house to get a copy of the vehicle’s logbook. On arrival, he found the 2 nd , the 3 rd accused and another person identified as Diki seated together outside the house. He recalled that as he was leaving after giving him a copy the logbook, the 3 rd accused’s wife warned him not to tell anyone what he had seen inside the home.
43. In addition, PW38 testified that later the same day between 4:00 and 5:00 pm, a Police Officer named Elvis (DW3), who was the 1 st accused’s bodyguard, called him instructing him to pick the 2 nd accused at Uriri at 6:00 pm; that the 2 nd accused would thereafter direct him where to go. He knew Elvis as he used to see him with the 1 st and 3 rd accused and he sometimes gave him work such as picking up customers or relaying information to the 3 rd accused or his wife.
44. In his testimony, PW38 recalled that following the above instructions, he drove to Uriri where he found the 2 nd accused in the company of two unknown men. They boarded the vehicle and the 2 nd accused directed him to drive them to Graca Hotel in Rongo Town which he did. At the hotel, the 2 nd accused and the two men alighted. The 2 nd accused went to the hotel alone while the two other men stood behind the vehicle. After about 10-20 minutes, the 2 nd accused came out of the hotel accompanied by a lady who appeared pregnant and another man.
45. According to PW38, all the people who had been in the company of the 2 nd accused boarded the vehicle but the 2 nd accused did not. One of the unidentified men instructed him to drive to a nearby petrol station and park by the road side which he did. Shortly thereafter, the 2 nd accused joined them appearing to have crossed over on foot from Graca Hotel. The 2 nd accused engaged in a discussion with the two men and another who had been standing by the roadside after which the men boarded the vehicle, one on the passenger seat and the other two at the rear seat where the pregnant lady ( Sharon) and the other man ( PW9) had sat.
46. When driving towards Kisumu as directed by one of the unidentified men, he heard the unknown men questioning Sharon and PW9 about their relationship with the 1 st accused. He did not follow the conversation as he increased the volume of music in the vehicle. After driving for a while, he sensed a gush of wind blow into the vehicle as if the rear door or window had been opened. He was at the time driving at a speed of about 60KM per hour. He slowed down and asked what was happening. One of the unknown men seated behind him, in response, remarked, “ wachana na hii fala ,” and he proceeded with the journey.
47. As he continued driving, he was being directed by one of the unidentified men on the roads to follow and he was eventually led to a rough road in a forested area with no homes nearby. He was instructed to stop, switch off the vehicle’s engine as well as lights and wait. This is when he realized that one man was nolonger in the vehicle as only three men and the lady alighted from the vehicle. After about 10–20 minutes, the men returned without the lady. Upon inquiry, he was informed that the lady had been left at their home. He was then directed to drive to Uriri, where the unknown men alighted between 9:00 p.m. and 10:00 p.m. He thereafter drove to his home in Migori.
48. PW38 also recalled that on the morning of the following day, Olivia summoned him to her house for no apparent reason and on arrival, the 3 rd accused took the car keys, left with them and returned them after a short while and without offering any explanation, ordered him to go back to work.
49. The prosecution also tendered evidence that on the same morning (4 th September 2018), PW22 Mr. Justus Muindi, a clinical Officer at Migori County Referral Hospital received a call from a man who identified himself as Caspal Obiero . He knew Caspa l before because of his association with the then Governor of Migori County who as noted earlier was the 1 st accused. He identified Caspal in court as the 3 rd accused.
50. PW22 recalled that after their brief conversation, the 3 rd accused went to see him in the hospital accompanied by the 2 nd accused. The 3 rd accused informed him that they wanted his assistance on an issue related to treatment. The 2 nd accused then explained that he had been attacked by unknown people at Kisii the previous night and was robbed of money belonging to his boss, the 1 st accused; that he needed a medical request form issued by a hospital in Kisii confirming that he had sustained injuries on the previous night in order to protect his job.
51. PW22 then contacted his colleague at Kisii Teaching and Referral Hospital (KTRH) Mr. Cliff Momanyi who testified as PW20. PW20 recalled that on 4 th September 2018 at around 10.30 am, he received a request from PW22 to assist his friend identified as Mr. Michael Oyamo by issuing him with a medical request form prescribing multiple medical investigations including chest x-rays, MRI and CT scans. Although he did not know or examine the said Michael Oyamo, he fabricated treatment notes and a computer generated outpatient card purportedly issued by KTRH as a favour to his friend PW22. The false medical records were produced in evidence as PExhibit 31 (a) and (b).
52. On the same day at around midday, (4 th September 2018), CPL Philomon Fidel Isiepay (PW23) testified that he was at Uriri Police Station when the 2 nd accused went to the Police Station and reported a case of abduction. He reported that on the evening of 3 rd September 2018, he was at Graca Hotel with a lady known as Sharon and another man and that on leaving the hotel, they were abducted in an undisclosed vehicle; that he found himself in Kisii the following morning having lost Kshs. 270,000 belonging to the 1 st accused.
53. PW24 on his part recalled that upon instructions by PW23, he recorded the 2 nd accused’s abduction report in the stations occurrence book. He produced the OB entry as PExhibit 35. After the 2 nd accused‘s report was recorded, PW23 was made aware of the abduction report made by PW9 the previous evening at Kadel Police Post. He found the 2 nd accused’s report suspicious and arrested him for further investigations.
54. Later the same day at around 3pm, Sharon’s lifeless body and that of her unborn child was discovered in a bush near Owade river by Mr. Moses Onditi Oguta (PW7), a resident of Owade village. He was shepherding his cattle towards his home when he stumbled upon the body. He reported the matter at Oyugis Police Station. He was escorted by Police Officers, namely, Inspector Mary Mogire (PW18) and PC Sammy Mindiki (PW19) to the scene where they found members of the public already gathered. They saw the body which was naked lying face down in a pool of blood.
55. As part of her preliminary investigations, PW18 recovered and prepared an inventory of the items they found at the scene. The items included items of clothing and open shoes belonging to Sharon, two used condoms, 3 sachets of trust condoms, two cover packets of trust condoms and a sachet of Simba Warigi (illicit brew). They collected the body and took it to Rachuonyo District Hospital Mortuary for preservation.
56. On 8 th September 2018, Sharon’s body was identified by Mr. Victor Ochola Onyango (PW29), the deceased’s uncle to the Government Pathologist Dr. Johansen Oduor (PW1) who conducted an autopsy on the body. In his testimony, PW1 recalled that on examining the body, he noted multiple external injuries consisting of two slash wounds under the right and left ear and a total of seven deep stab wounds, one at the deceased’s abdominal area and the others at several areas of her back. He opined that the deceased's cause of death was severe haemorrhage due to penetrating force trauma with features of manual strangulation. He documented his findings in a post-mortem report which he produced as PExhibit 1.
57. In the course of his examination, PW1 also noted that the deceased’s uterus had a dead foetus which was 28 weeks old. The stab wound to Sharon’s abdomen had penetrated to the uterus, gone through the foetus ‘s abdomen and came out through the umbilicus. He also prepared and signed a post- mortem report form in respect of the foetus which he produced as PExhibit 1 (b). Upon cross- examination by Mr. Kilukumi SC for the 1 st accused, PW1 confirmed that with that kind of injury, the foetus did not have a chance of being born.
58. As reports in both the mainstream and social media platforms started circulating on the circumstances in which Sharon and her unborn baby had been found dead and given the public interest the reports had generated, a team of officers from the Directorate of Criminal Investigations Headquarters (DCI Headquaters) in Nairobi was dispatched to Homa Bay to take over investigations into the matter. They included Chief Inspector Nicholas Konara Ole Sena (PW42) who narrated to the court how investigations in this case were undertaken by the investigating team from DCI Headquaters.
59. According to PW42, together with his co - investigators, they arrived in Homa Bay on 6 th September 2018 and commenced investigations. They found the 2 nd accused already under arrest. In the course of their investigations, they recorded and reviewed statements from persons
who testified as prosecution witnesses including PW21, the Health Records and Information Officer at KTRH. He established from PW21 that the medical records obtained by the 2 nd accused from PW20 purportedly issued by KTRH did not emanate from the hospital and they were in fact forgeries. He also claimed that he obtained the forged medical records at Uriri police station where the 2 nd accused had presented them when making a false report about his alleged abduction.
60. PW42 also visited Graca Hotel in an attempt to obtain CCTV footage but was unable to obtain any as the device for storage of CCTV images (DVR) was faulty. His investigations also led to recovery of Motor Vehicle KCL 481K which had been used in the abduction of Sharon and PW9. He produced the vehicle in evidence as PExhibit 17.
61. Further investigations led to analysis of DNA profiles generated from the 1 st accused and Baby Sharon which, according to the Government Analyst Mr. John Kimani Mungai (PW3) revealed that the 1 st accused was the biological father of Baby Sharon. He produced a report documenting his findings dated 11 th March 2020 as PExhibit 11.
62. PW42 also caused forensic examination of mobile phones, including an iPhone belonging to the 1 st accused and a Huawei tablet belonging to the deceased. The phones were produced as P Exhibits 39, 41, 43 and 49 and the cybercrime forensic report showing text messages and images contained in the aforesaid phones was produced as P Exhibit 51 (a). Notably, the report showed that the phone marked D which belonged to the 1 st accused had text messages for two days only- the 12 th and 13 th of September 2018.
63. PW42 also obtained call data records from two service providers namely, Airtel and Safaricom Ltd in respect of mobile numbers used by the deceased, XYZ, PW28, Accused 1, Accused 2, Accused 3 and PW38 together with their Mpesa records. The reports containing the above details were produced as PExhibits 12,63,64, 65,66,67,70,71,72,73 and 74.
64. PW41 from Airtel Ltd produced subscriber details and call data records for Airtel line No. 0739473321 which was being used by the 2 nd accused. The subscriber details showed that the line was registered on 27 th August 2018 under the name of Vincent Abonyo of ID card No. 639906.
65. In the course of his investigations, PW42 also recorded the statement of PW39, Ms. Fatma Khalid, an administrator in the car tracking firm known as Qool Point Services which showed that the car tracking system fixe
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