https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/240

Republic v Akinyi (Criminal Case E157 of 2025) [2026] KEMC 240 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEMC 240 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E157 of 2025 AK Njeru, SRM June 29, 2026 Between Republic Prosecutor and Martha Akinyi Accused Judgment 1.Accused has been charged with the offence of attempted infanticide contrary to section 210 as read with section 388[1] of the Penal Code. Particulars are that on the 8th day of May 2025 at about 0100hrs at Nambengele area in Bunyala Sub County within Busia County, accused unlawfully attempted to cause the death of her infant who was seven hours old by throwing it in a pit latrine. 2.Accused denied the charge and the prosecution presented its evidence as follows: 3.PW1 Anne Juma testified that on the material day around 6.00am, Violet and Sharon who are accused’s mother and sister respectively, knocked on her door and informed them that they could hear the cry of a child from inside their pit latrine. They quickly alerted their grandmother who reported the matter to the police. They all confirmed the cry of a child from inside the pit latrine. The area chief was alerted, police were called to the area, fire extinguisher department was roped in , the child was rescued from the pit latrine and escorted to Port Victoria Sub County Hospital where first Aid was administered. Accused had been married but had returned to live at home. They could not ascertain who was pregnant during that period. Since no one owned up as being the mother, the women in that homestead were all rounded up booked inside the police cells. While at the police station, police officers brought accused who was examined and found to have been the one who had recently birthed a child with no evidence of its whereabout. 4.PW2 Elizabeth Anyango Apinde testified that on the material day, she received a call from her sister Rosemary informing her that they could hear the cries of a baby inside their pit latrine. She reported the matter to the police.in the company of 3 police officers. They headed to the scene and indeed could hear the cries of a child from inside their home pit latrine. Many people were involved and eventually the child was rescued and escorted to Port Victoria Hospital. All the women in that homestead were arrested and escorted to the hospital for examination to determine who had birthed the child. Accused who is her niece had a habit of returning home from her matrimonial home. She could not tell whether at the time she saw her a week earlier, accused was actually pregnant. accused was found to have been the birth mother of the said baby. 5.PW3 Rosemary Anyango testified that on the material date around 6.00am, she was in the house sleeping when accused’s mother informed her that she could hear a baby crying from the inside of their pit latrine. They alerted their relatives and police were called to the scene. The child was later rescued from the pit larine and rushed to Port Victoria Hospital for treatment. at the time of being retrieved from the pit latrine. The child’s umbilical cord was still intact. It was later established tat accused was the one who had birthed the baby. She had seen accused three weeks earlier and could not be sure if accused had been pregnant. Accused often visited their home from her matrimonial home severally. Accused was nowhere to be found when the baby was being retrieved from the pit latrine. She was later arrested by police. 6.PW4 Violet Bwire testified that on the material day around 6.30am, she woke up and headed outside to their pit latrine to relieve herself. That is when she heard a bay crying from inside the latrine. She quickly alerted all her relatives who confirmed the same. police were alerted and rescue operations of the baby commenced. The baby was later rescued from the pit latrine alive and escorted to the hospital. All the women in that homestead were quested of who had birthed the baby and none had admitted. So, they had all been arrested and escorted to the hospital for examination. Later, it emerged accused from the medical examination was the one who had birthed the child. She did not know accused, who is her daughter had been pregnant all along as the same was not visible. Accused sometimes resides in Nairobi and sometimes visits the home. Accused did not inform her of delivery of the first born but only brought the child home later. Even this child found in the pit latrine, accused had not informed her of its delivery. 7.PW5 Sharon Wandera testified that she also woke up around 6.30am on the material day to relieve herself at the pit latrine in their homestead when she heard the baby crying from inside the latrine. They alerted the relatives who in turn called the police. Eventually the baby as rescued from the pit latrine and escorted to the hospital. She later learnt the child belonged to accused herein. Accused is her biological sister but lived elsewhere. 8.PW6 125782 PC Timothy Orenge, a DCI officer initially working at Nambengele Police Post stated that on the material day around 1318hrs, they received a call from one Augustine Swat, the Chief informing them accused was at her homestead. They proceeded to the home where they found accused cleaning the house with fresh blood on the floor and on her feet. They advised her to get sanitary pads to mitigate the bleeding and escorted her to Port Victoria Hospital. He was also part of the team that rescued the child from the pit latrine. 9.PW7 237058 PC David Ngare stated to have received a call from the area Chief Augustine Swat informing him that the suspect of throwing a child inside a pit latrine as reported earlier had been sighted at her home. He and PC Orenge rushed to the home and found accused cleaning her house with clear evidence of blood stains on the floor and on her feet. They took her into custody and escorted her to the Port Victoria Hospital. 10.PW8 Collins Oscar Wesebebe, a clinical officer working at Port Victoria Sub County Hospital testified that on the material day, accused aged 25 years was presented to the facility with a history of birthing a child the same day around 1.00am and throwing the baby in a pit latrine. On examination, there was minimal bleeding with no visible tears. she was treated and discharged. The following day, accused returned in the company of police officers to the hospital with complains of chills and abdominal pains. A diagnosis of puerperal sepsis was diagnosed when was given anti biotics. He filled the treatment book and produced the same as Pex no. 1. 11.PW9 243939 PC Eliakim Andete, the investigating officer testified to receiving a call on the material date that a child had been thrown inside a pit latrine. In the company of other police officer, they rushed to the scene and found many people gathered in the homestead. They confirmed hearing the cries of a baby inside the pit latrine. They sought the help of members of the public and managed to gain access into the pit latrine where the baby was rescued alive. The baby was escorted to the Port Victoria Sub County Hospital and later referred to Busia County Referral Hospital. Around 2.00pm the same day, police officers from Nambengele Police post availed accused whom they suspected of having birthed the child. She appeared weak and was still bleeding. Villagers had suspected her after seeing her pregnant and now not pregnant with no evidence of the whereabouts of the pregnancy. They escorted accused to the hospital she was examined and found to have recently birthed a child yet she had none to prove the same. he had taken photographs of the scene during the rescue mission he produced the photographs as Pex no. 2(a) to (d). he also produced certificate thereto as Pex no. 3. Some of the images are of the child with feaces covered all over his body. 12.PW10 Maryline Auma Kundu in her sworn testimony stated that she understood the charges she was facing. That on the material day around 9.30am she received a call from her area chief one Augustine Swat enquiring from her how many women were pregnant in her jurisdiction as the area community health volunteer. She only responded tow home, one the hoe of Flava Omedo and that of Titus Ojwang. The chief asked her to visit the home of Flavia which she did and found that a child had been thrown inside a pit latrine. Rescue operations were ongoing and eventually the child was retrieved from the latrine. She administered first Aid to the child by wiping him with a piece of cloth to remove the maggots that had been began eating up his umbilical cord. The child was rushed to Port Victoria Hospital for treatment and later escorted to Busia Referral Hospital for further treatment. she later discovered accused as the ne who had thrown the child into the latrine after delivery as she was still bleeding from the post delivery 13.Accused was found with a case to answer and placed on her defence. 14.DW1 Martha Akinyi in her sworn testimony stated to understand the charges she faced. That on the material day she arrived from Nairobi after a fall out with her husband and arrived at around 10.00pm she then got an urge to go for a long call which she attended to in their pit latrine. It is then that she lost strength and the baby fell inside the pit latrine. She tried saving the baby on vain. It had rained heavily. She did not tell anyone. She was under so much stress. She did not expect to deliver the child at the time since her due date was on 10/6/2025. She prayed for forgiveness. 15.Based on the evidence on record, the key issues for determination are:a.Whether the infant found in the pit latrine was the child of the accused.b.Whether the accused unlawfully attempted to cause the death of the infant.c.Whether the defence offered by the accused raises a reasonable doubt. Analysis 16.The prosecution evidence is largely consistent. PW1, PW2, PW3, PW4, PW5, PW9 and PW10 all testified that on the morning of 8th May 2025 cries of a baby were heard emanating from a pit latrine in the accused's family homestead. The child was eventually rescued alive from the pit latrine. The evidence further shows that the baby had a fresh umbilical cord and was covered in faecal matter. PW10 testified that maggots had already begun feeding on the umbilical cord. 17.The evidence of PW6, PW7, PW8 and PW9 established that later the same day the accused was found at her home with fresh blood on the floor and on her feet. Upon medical examination at Port Victoria Sub County Hospital, PW8 confirmed that she had recently delivered a child. There was no evidence of any other woman in the homestead having recently given birth. The court is therefore satisfied beyond reasonable doubt that the rescued infant was the child of the accused. 18.The next issue is whether the accused attempted to cause the death of the child.The child was only a few hours old. The evidence shows that he was thrown into a pit latrine and left there for several hours until members of the public heard his cries. The pit latrine was filled with human waste and the child was recovered covered in faeces. Had the cries not been heard and rescue efforts mounted, the child would almost certainly have died from suffocation, drowning in the waste, infection, exposure or starvation. 19.The act of placing a helpless newborn infant into a pit latrine and abandoning him there is, in the court's view, a deliberate act from which an intention to cause death or knowledge that death would probably result can safely be inferred. The fact that the child survived was purely due to the intervention of third parties and not because of any action taken by the accused. 20.In her defence, the accused admitted that the child fell into the pit latrine while she was answering a call of nature and unexpectedly went into labour. She stated that she attempted to save the child but was unable to do so because she had lost strength and that she did not tell anyone because she was under stress. 21.The court has carefully considered this explanation. If indeed the incident was accidental, the natural reaction of any mother whose newborn child had fallen into a pit latrine would have been to immediately raise an alarm and seek assistance. The accused did neither. Instead, she left the child inside the pit latrine and went away without informing anyone. The child was only rescued several hours later after relatives independently heard his cries. The accused was not present during the rescue operation and only surfaced later when traced by police officers. 22.Her conduct after the incident is inconsistent with that of a person involved in an unfortunate accident and is more consistent with an intention to abandon the child to his fate. The defence is therefore not credible and does not raise any reasonable doubt in the prosecution case. Determination 23.The court finds that the prosecution has proved beyond reasonable doubt that the infant rescued from the pit latrine was the child of the accused. The accused intentionally placed or caused the infant to be placed in the pit latrine and abandoned him there. By so doing, she performed an act which was more than merely preparatory to causing the death of the infant and therefore attempted to commit the offence of infanticide. 24.The defence of accidental delivery and unintended fall is an afterthought and is rejected. 25.Accordingly, the court finds the accused, Martha Akinyi, Guilty of the offence of attempted infanticide contrary to section 210 as read with section 388(1) of the Penal Code and convicts her under section 215 of the Criminal Procedure Code. 26.It is so ordered. DATED SIGNED AND DELIVERED AT PORT VICTORIA THIS 29TH DAY OF JUNE 2026HON. ANNE NJERUSRM