REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 22 OF 2010

REPUBLIC.........................................................PROSECUTOR

VERSUS

ENNOCK TUIKONG MASAI.....................................ACCUSED

JUDGMENT

1. The accused Enock Tuikong Masai faced two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code. He was initially charged   alongside one Mildred Katunyi in  whose case the  State entered a  nolle prosequi  Mildred Katunyi was later to become PW1.

Particulars of the offence were that on the  21^st day of March, 2010  at  Katome village in Lwandanyi location  within Bungoma  district jointly and unlawfully  murdered  unnamed infants.

2. The accused pleaded not guilty and the matter went to full trial where the State called a total of  9 witness who  testified as follows:-

PW1 Mildred Kitunyi wife of the accused testified that on the 10^th of March, 2010  at around 9.00 a.m. she gave birth to  two  twin boys prematurely which did not go well with the accused.  On  21^st October, 2010 she went to the  river at  about 6.00 p.m to fetch water leaving the  babies in  the company of the accused  and their  4 year old daughter.  On returning back she did not find the children and the accused told her that  in his custom they  did not like  twin boys and that he would either kill one child or himself which made the witness talk to a neighbor one Moses PW2 who in turn spoke to the  accused  and on PW2 asking the accused  the whereabouts of the children  said he had buried the children at  his fathers.  The witness then informed her mother and together they informed the chief who went with the Administration Police and on asking the accused led them to a pit latrine within the shamba. The chief ordered the accused to remove the children and bury each in its separate grave but the accused refused stating that in his custom such children are thrown away.  She further stated that the police  were later to remove the children  from the pit latrine and both the accused and the witness were arrested.

In cross examination the witness said she gave birth at 6 months to premature babies.  She further said that  what the accused said is that he could not keep the twins not that he had killed them.

PW2 Moses Misikhu Nyarami stated that on 21.01.2010 in the  evening he met the village elder  who asked him whether he knew  of the  death of accused twin boys. He went to the  home of the accused and PW1 told him that the babies were  dead but she did not know whether they had been buried.  He went to  the shamba where he  found the  accused who denied that the  children were dead.  The chief of the area later informed him that the accused had  buried the children without  a burial permit.  The chief and his  officers arrested the accused  who was later  released and on 24^th March, 2010. The babies were  retrieved from a pit latrine next to the home and the accused and his wife arrested.

PW3 Lucy Chemtai  a farmer and traditional midwife stated that on  10.3.2010 at about  9 p.m PW1 sent for her she rushed and found PW1 outside the house  struggling to give birth.  She had given birth to  the 1^st  child and the   witness helped her with the  second child.  The two  were twin boys and they  cried at birth.  She  assisted  PW1 to the house and put her on the bed with the babies.  Later  she learnt  that the children had died.

PW4 Janet Kisachi mother of PW1 she learnt that her daughter PW1 had  given birth to twins but a  few days later she learnt that the children had died and had been buried.

PW6  Nancy Mangoli  sister to PW1 she met the accused on her way from school on  14.3.10 at about 6 p.m. he informed  her that Pw1 had given birth  to  twin boys and he was not happy.  The witness informed PW5 that the children had been killed.

PW7 Moses Etyang Emong village elder of Katome village. On 14.3.2010 the deceased informed him that his wife had given birth to twins.  He encouraged accused to register their birth and accused asked for time as he was yet to name them.  10 days later accused informed him that he had buried the children as they had died.  Accused said he had not received a burial permit.  Later he learnt from a neighbor that the babies had been thrown in a pit latrine.  The witness called the chief who came with administration police saw where the child had been thrown and arrested the accused and the wife.  Two days later police came and removed the children.

PW8 Senior Sergent Joseph Githu Ibau Deputy OCS  Lwakhakha police station. He recalled receiving a call from  one Ronald Wanjir chief of Lwandanyi who informed him of the  twins who had been  born  prematurely and had  been buried in a pit at a  construction site.  He went to the scene and met the accused and PW1 whom he arrested for interrogation.  He later released PW1 and charged the accused.  He learnt from the accused that his wife had given birth to premature children one child died within 2 hours and another 4hours and the accused buried them after informing PW7. Accused   assured him that he had buried the children in separate graves however a day later the press called and informed him that the public had exhumed the bodies. He arrested both the accused and his wife.  Post mortem results showed the children were born full term. The two were later charged but the case of PW1 who  was a  2^nd accused was withdrawn.

In cross examination he said he did not believe the accused as the  accused lied about the maturity of the children and  the  circumstances with which  they died and where he had buried them.

PW9 Dr. Mansur Ramizan of Bungoma District Hospital produced a post mortem report on behalf of  Dr. Osundwa whose handwriting and signature he was familiar with.  He gave the following details;

1^st post mortem for infant marked “A” – male child a few days old internal appearance – both lungs collapsed and there was hemothorax.

Cause of death – cardio pulmonary arrest due to burns most likely due to  infanticide

2^nd post mortem for infant marked “B” – female child a few days old.  Cause of death cardio pulmonary arrest secondary to chemical burns.

In cross examination he stated both babies were  well grown and were identified by J I  and  M M  had well grown scalp, had  been born maturely. That  chemical burns may have been caused by acidic chemical.

3. The court found the accused   to have a case to answer at the close of the prosecution case.   He gave a sworn statement as follows. He is Enock Toikong Masai of katomei.  On the 14^th March, 2010 his wife had a miscarriage. He had left the house at   lunch time and returned at  9 p.m when he heard  children crying he learnt that the wife was 6 months pregnant and   had a miscarriage.  Rushed to get a vehicle 5 km away when his wife called and said the 1^st  child had died and  as he returned she called and said the  2^nd one  had also died.   On returning he  found both his  wife and her  mother who  had wrapped the children in cloth and a blanket in order to  be buried.  They   waited upto to 6 p.m.  He consulted his  father in regard  to customary requirement.  Since there was a pit that had been dug between 91 and 94  he dug  the  walls of the pit and placed  the children and blocked the same with mud and brick as his  father had told him not to  bury the children on the ground as they may  bring a curse to  the clan.   He then informed his father in-law  and quarrel ensued between his clan and that of the  wife as  his father  in-law wanted the  children buried  separately.  His father in-law then reported the matter to the police.  His father had insisted that the children were S and S custom was to be followed.

On 28^th the police returned asked to see the grave, they removed the bodies and arrested him and the wife alleging that his clan did not accept twin boys which is a he as he is a twin. He did not know ever whether the children were boys or not, as they died.

In cross examination he rejected the evidence of PW1 that he was unhappy with the children.  It was his case that on the 21st the children were already buried.  Since the children were born prematurely he did not check on the children but went to get a vehicle.  The wife lied  to the Police so as to testify against him. In their custom when they get twins they do not inform in laws. He has had other twins who are still alive. Further that he did not  register the children as they died.  Neither did he bury the children in a  toilet. Although it is alleged that he  killed the  children because they were boys the post mortem indicates they were a boy and a girl.

4. Having considered the evidence the issue for determination is  whether the prosecution has proved a case of murder as against the accused to  the required standard. The prosecution must prove that the accused killed the children and that  in doing so he had the necessary  mens rea.

5. Did the accused cause the death of the infants?

PW1 in her evidence stated that the day she gave birth the accused was not home.  He  came the following morning. He  enquired if the pregnancy had reached maturity and she answered to the negative. She said  further that he asked  why she had given birth to  twin boys. On 21^st  October , 2010 she went  to  the river at about 6 p.m and on returning  she did not find the children.  That the accused   has said  in their custom  they did not  like twin boys and that he would either kill one of the  children or himself.

In cross examination she said she gave birth after  6 months pregnancy and the children were premature.  PW2 on his part said that the accused wife (PW1) had told him that  the babies had died but could not tell whether they had been buried. He also learnt  from the area chief that the accused had  buried without a permit.

PW3 a traditional mid wife found PW1 had delivered  1 child she helped with the  2^nd and both were twins.

PW7 on his part stated that accused informed him  that his wife had given birth to  twins.  He had not   registered them.  14 days later he  learnt that the twins had died.  He later  learnt that  the children had been thrown in a pit and he informed  the  chief. Police removed the children  with assistance from public.

PW8  stated that he did investigations, he learnt from press the children had been removed from the pit. Post mortem  showed children were full term.  He charged the two.

From the above evidence  PW1 is in  concurrence with the accused that the children were born prematurely at  6 months.  She informed PW2 her children were dead.  She did not witness the accused killing the children.  Although she says that she reported to the chief the  chief did not testify.  PW3 says he reported because accused had no burial permit and he threw the children in a pit latrine in a plot where he ought not to have buried them.

There is no evidence that he killed them.  The  evidence on record suggests otherwise.  The children whose post mortem was   produced were a boy and a girl who were born full term and were burnt.  This report does not support the charge or evidence of the other witnesses.

Indeed there lacks direct evidence linking the accused to the   death of the twins.  No circumstantial evidence was adduced either.

PW5 the doctor was of the view that if the children had been   born prematurely they ought to have been put in a nursery.  Could the children then have died due to this status it is very possible.

Having considered the prosecution evidence I find that the same is full of inconsistencies. I believe more the evidence of the accused which in my view is more consistent and likely to be the truth as compared to the evidence of  PW1.

I therefore find that the prosecution failed to prove its case to the required standard. Consequently the accused is hereby acquitted and set free unless otherwise lawfully held.

DATED and DELIVERED at BUNGOMA this 20^TH OF DECEMBER 2016

ALI-ARONI

JUDGE.