Brian Odhiambo disappearance; separating fact from fiction (Opinion)

By Jackie Adhyambo

For days on end, Brian Odhiambo’s disappearance story has become a permanent fixture in Kenya’s news and especially in social media spaces.

The story has also become a curious fixation among human rights activists. The fact that Brian’s disappearance happened in a season when abductions of pesky provocateurs poking their fingers into the nostrils of the government were taking place has not helped.

The narrative being driven by a brigade of self-styled social justice warriors now seeks to etch in the minds of the public that the government is culpable.

This mind-swaying attempt is being made in spite of a court ruling saying the contrary. While I sympathise with Brian’s family and friends, I am of the opinion that there is a hidden agenda behind the protracted “efforts” to heap blame on a predetermined villain even without cause.

The matter is made worse by the incitement by certain Members of Parliament who found Brian’s case the perfect capital to play politics with against the backdrop of falling out of favour with the electorate after last year’s Gen-Z insurrection.

Aside from the persistent rubble rousing tagged on Brian’s disappearance, let us turn to the legality of the whole matter.

I can assure you that no single individual has dreamt or wished to have their name appear as ‘the petitioner’ on a habeas corpus application.

Nobody whatsoever! Without downplaying the hurt of grieving family and friends over a missing loved one, we unfortunately cannot choose which truths are truer than others.

This truism applies squarely in the Brian Odhiambo disappearance matter.

I have always had my reservations and critiques of the adversarial nature of the Kenyan legal system. On many occasions I have found myself marveling about our application and appreciation of the law in Kenya.

I often ask, “Does the truth really matter if emphasis on formalities is where all importance is placed?” or “Are inquisitorial systems that would allow for less stringent rules relating to admission of evidence the better option?”

But I look at arguments online and in day-to-day conversations with my peers and thank the framers of our Constitution, just as I did for their choice of the words at Article (1) – “The people may…” for Article 165 (3) (a) and (b) which establishes the unlimited jurisdiction of the High Court to determine a question of whether a right or fundamental freedom such as the right to an order of habeas corpus has been denied, infringed or threatened.

Justice Nang’ea’s four page ruling that was handed down on 6th of February 2025 is a personification of one particular thing for me – calling a spade a spade and not a big spoon.

By reminding us at paragraph 7 that the issue of ‘custody’ is critical before a habeas corpus order is made, then taking us at paragraph 8 to the same Court’s 2014 observation that the general burden of proof in these petitions remains with the petitioner, it is clear that despite the fact that we all want to know where Brian is, we cannot establish our own set of facts to that end.

The officer in charge of Lake Nakuru National Park honoured summons, at first instance no less, (yes, fish ought not to be applauded for swimming) and duly informed the Court that although eleven suspected trespassers were arrested on 18th of January, 2025, only ten are in custody as one is said to have fled after seeking consent to respond to nature’s call in a nearby bush.

The officer went on to inform the Court that the reason they did not avail the Subject was simply because he was not in their custody.

Leaving no stone unturned, the DCI Nakuru East conducted an identification parade in an attempt to identify the officers who were said to have arrested the subject but witnesses on the ground failed to pick the officers out.I remain eager as ever to hear encouraging news about Brian.

To the greatest degree, for the sake of the second petitioner, Elizabeth Auma, his mother. In realisation of the same, I believe I owe it to myself to treat online and other outside opinions as just that – opinions, which everyone is entitled to, unlike facts which although hard to swallow, are universal.

Adhyambo is a knowledge management consultant running her own Nakuru-based firm.