The case of Sharon Otieno, a Rongo University student, has taken a dramatic turn as her parents pleaded with the court to spare former Migori Governor Okoth Obado a custodial sentence, citing forgiveness and a desire for reconciliation. During mitigation proceedings at the High Court, Sharon's parents asked Justice Cecilia Githua to consider a non-custodial sentence for Obado. However, legal experts argue that this does not necessarily mean Obado can be acquitted or his conviction set aside.
According to Veinna Mongare, an advocate of the High Court of Kenya, a person charged with murder cannot be acquitted simply because the complainant or family requests it. In Kenya, murder is considered a crime against the State, not against the individual or family. The case is therefore controlled by the Office of the Director of Public Prosecutions (ODPP), not by the complainant. This distinction is crucial in understanding the limitations of the family's plea.
Under Kenyan law, murder is not a compoundable offense, meaning it cannot be withdrawn by a complainant. Section 204 of the Criminal Procedure Code allows complainants to withdraw minor cases, but this does not apply to murder charges. The court will not permit withdrawal, even if the family has been compensated or has forgiven the accused. This ensures that justice is served and that the accused is held accountable for their actions.
There are only two ways a murder case can end without a conviction: acquittal by the court if the prosecution fails to prove the case beyond reasonable doubt, or a nolle prosequi by the Director of Public Prosecutions (DPP) in the public interest or due to lack of evidence. In either case, the decision is made by the court or the DPP, not by the complainant or family. This highlights the importance of the DPP's role in determining the course of justice.
If the complainant refuses to testify, the court can still proceed with the case. The prosecution can rely on other witnesses, police testimony, medical reports, and other evidence to build their case. The court can also issue a warrant for a witness who refuses to appear. This ensures that the trial is not unduly delayed or hindered by the actions of the complainant or family.
The complexities of Kenyan law are further highlighted when comparing murder cases to minor offenses like assault or theft. In these cases, the court may allow the complainant to withdraw charges under Section 204 of the Criminal Procedure Code. However, in murder cases, the stakes are higher, and the court's primary concern is ensuring justice is served.
As the case against Okoth Obado continues, it serves as a reminder of the importance of understanding Kenyan law and the role of the court, the DPP, and the complainant in murder cases. The family's plea for a non-custodial sentence and forgiveness, while significant, does not have a direct impact on the outcome of the case. Ultimately, the court's decision will be guided by the evidence presented and the principles of justice.
Key points
- A person charged with murder in Kenya cannot be acquitted simply because the complainant or family requests it.
- Murder is considered a crime against the State in Kenya, not against the individual or family.
- The court will not permit withdrawal of murder charges, even if the family has been compensated or has forgiven the accused.
