Former Migori Governor Okoth Obado and his co-accused in court /HANDOUT
The High Court's judgment in the Sharon Otieno murder case has thrust an obscure but significant legal doctrine, the "born alive" principle, into the national spotlight.
Justice Cecilia Githua relied on the principle to acquit the three accused persons-former Migori Governor Okoth Obado, his former personal assistant Michael Oyamo, and Caspal Obiero-on the charge relating to the death of Sharon's unborn child, commonly referred to in court as Baby Sharon.
While the court found that the accused had a case to answer over Sharon’s murder, it ruled that the law did not permit them to be tried for the murder of her unborn baby because the child died before birth.
Her body was discovered in a thicket near Kodera Forest in Uriri, Homa Bay County on September 4, 2018.
An autopsy concluded by government pathologist Johansen Oduor established that she had suffered severe physical injuries and had been subjected to torture and sexual violence.
The examination further revealed multiple stab wounds, widely reported as between seven and eight, on her neck, back and abdomen.
The unborn male foetus also sustained a fatal stab wound to the abdomen, according to the pathologist's findings.
What is the 'born alive' principle?
The "born alive" principle is a long-established rule of common law that determines when a child becomes a legal person for purposes of criminal offences such as murder.
In simple terms, the doctrine provides that a child must be born alive before he or she can legally be regarded as the victim of murder.
Although the principle originated in English common law centuries ago, it forms part of Kenyan criminal law through Section 214 of the Penal Code.
The law states that a child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, even if it has not yet breathed independently, developed full blood circulation or had its umbilical cord cut.
In essence, the law requires evidence that the child was born alive before the offence of murder can arise.
Why did it matter in the Sharon Otieno case?
The prosecution charged the accused with two counts of murder, one relating to Sharon Otieno and another relating to her unborn baby.
However, in a ruling delivered on July 23, 2026, Justice Githua held that Baby Sharon died while still in the womb.
As a result, the unborn child did not satisfy the legal definition of a "person" under Sections 203 and 204 of the Penal Code, which define the offence of murder.
“Baby Sharon being a foetus which died in the mother’s womb did not fit in the description of a person within the meaning of Section 204 of the Penal Code which is the provision that creates the offence of murder,” said Justice Githua.
The judge therefore found that the prosecution had failed to establish a case requiring the accused to defend themselves on the second count.
She acquitted all three accused persons on that charge before the trial proceeded on the murder count relating to Sharon.
While delivering the final judgment, Justice Githua revisited that earlier decision, explaining that it was based entirely on the "born alive" principle as recognised under Kenyan law.
Does this mean the law ignores unborn children?
No.
The ruling does not suggest that the death of an unborn child is insignificant or without legal consequence.
Instead, it reflects the way Kenya's Penal Code currently defines the offence of murder.
Under the existing law, murder can only be committed against a legal person.
Since an unborn child who dies before birth is not recognised as a person for purposes of the murder provisions, a murder charge cannot legally stand.
The court therefore applied the law as enacted by Parliament rather than making a moral or medical judgment about the value of unborn life.
The rule provides legal certainty by establishing when criminal liability for murder begins.
Without such a definition, courts would face complex questions about fetal development, viability and when legal personhood starts.
The doctrine therefore creates a clear legal threshold, although it has increasingly been debated as medical science advances and many countries reconsider laws relating to unborn children.
