Kimilili MP Didmus Barasa has been acquitted of a murder charge over a lack of sufficient evidence.
Justice Rose Ougo, of the High Court Bungoma, said the lawmaker’s pistol which the prosecution presented as the weapon used to fire the killer bullet in the head of Brian Olunga, was not directly linked to the shooting.
“According to eyewitnesses, including his main (political) opponent Brian Khaemba, the accused (Barasa) did not fire any shots. He did not use his pistol. The fragments of ammunition found at the scene of the crime did not match those used by his pistol as per the ballistic report,” said Justice Ougo.
Olunga was an aide of Baraza’s political opponent.
Asking the accused
“I acquit him without calling him to defend himself. Doing so would be asking the accused to fill the gaps left by the investigation,” the judge said after the ten-month murder trial.
The judgment was a blow to the prosecution which had built its case on the ballistic report after testing the MP’s firearm which, alongside his passport, was recalled by the court.
"We forwarded Barasa’s Glock pistol to the National Forensic Laboratory and ballistic findings from their report linked the firearm to the fatal shot that took away Olunga's life,” said the prosecution team that included Peter Kiprop, Robert Oyembo, and Augustine Ayiekha.
"We particularly took cartridge and bullet fragments at the crime scene to the ballistic lab for forensic analysis. The report from the analysis says the recovered cartridge was fired by the Glock pistol issued to Barasa," the prosecution said.
Barasa, who was represented by the law firm of John Khaminwa, poked holes in the report, making the court doubt its authenticity.
Khaemba, another key prosecution witness in the case, testified that his team was witnessing the vote count at the Chebukwabi polling station on August 9 when Olunga was shot after an argument between his team and that of Barasa.
“I headed towards my car but Barasa followed me in the company of four men and ordered them not to allow me to leave. My driver defied Barasa's order and ignited the vehicle which prompted Barasa to shoot Olunga who succumbed to injuries on the way to the hospital,” Khaemba said.
The prosecution also presented a pathologist who said the bullet which killed the 21-year-old man crushed his skull, ending up stuck in his brain.
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A report by Dr Dickson Muchana went unchallenged, confirming the killer bullet which was removed at Bright Mortuary in Kimilili, dealt the fatal blow to the man who was hoping to join university.
"The victim (Brian Olunga) died after profuse bleeding after the bullet hit his right side of the head and stuck in the brain," reads the report.
After the acquittal, the prosecution quickly applied for typed proceedings of the Thursday afternoon judgment saying they would likely appeal against the verdict.
The acquittal becomes Barasa’s second victory in Bungoma courts in a span of less than a year. The first one was when his election victory was upheld in late November last year.
Then his political nemesis Khaemba had petitioned the court to overturn his August 9, 2022 victory as MP-elect for Kimilili over alleged irregularities.
Justice Mary Kasango then observed that Khaemba, who premised his petition on alleged violence witnessed during the poll (which even turned fatal), failed to substantiate how it actually affected the voting and election outcome.
She went ahead to slap Khaemba with a Sh 2.7 million fine for the defective petition.
Barasa who vied on the UDA ticket recaptured his seat after garnering 26,861 votes against DAP-K candidate Khaemba's 9,497.