1. This matter started as Machakos High Court Criminal Case no. 39 of 2015 Republic vs Winnie Mumbe Kisia. It was part heard by the Hon Lady Justice Nyamweya as she then was . when the High Court at Makueni was established, the file was transferred to this Court where it went through the hands of Hon Justice C Kariuki and Lady Justice Ong’udi. The hearing continued before Hon Justice Dulu. When I took over in 2023, it was pending defence hearing.
2. The accused, Winnie Mumbe Kisia, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 of the Laws of Kenya.
3. The particulars are that on the 8th day of April 2015 at Kasooni Sub-Location, Mbooni East Sub-County within Makueni County, she murdered June Chebuoge alias Ndinda Kisia alias Kavake. At the that time the child was aged 8 years old.
4. The prosecution called eight (8) witnesses in support of its case.
Prosecution’s case
5. PW1 was Dennis Kavoi Mutuku, a minor. His testified that he was a resident of Konza Village and was neither going to school nor working. That he was staying with his grandmother Sabina Mutei. On 08/04/ 2015 he was at Kilawa and he ate lunch at home with Yusuf who had been employed at the house as a shamba boy, Winnie the accused and another boy he did not know and had only seen him on that day. After lunch, they rested outside the home under a tree.
6. At around 1.00pm, the children Jane Chebuoge and Chepkorir returned from school. He did not know whose children they were. They were given lunch and then they went to look out for the squirrels. At 4.00 p.m., he went to graze the goats at the shamba. The children were looking out for squirrels near the gate of the house and he left them there.
7. Dennis testified that he was in the field and around 6.00 p.m. he heard Winnie calling Chebuoge. She then called him and asked if he had seen Chebuoge and he said that he had not seen her. At 7.00 p.m., he took the goats home where he found Winnie, Yussuf, Chepkorir and the other boy. He locked up the goats and Winnie told him that Chebuoge had run away. She used to run away before and would then return. She used to leave in the evening and return the next day at 1.00 p.m. He did not know why she used to run away. They did not look for her. They ate and slept and Chebuoge had not returned.
8. The next day it rained in the morning and he asked Yussuf to assist him to heard and graze the goats. They took them to someone’s field but were asked to leave by the owner. The goats were then dispersed and when he went to look for some of them, he found Chebuoge lying under a tree. He called her and left her there. When he returned, he realized she had been rained on and there was blood on her nose.
9. He told Yusuf that they should carry her home but Yusuf told him to go home and call Winnie. He found Winnie at home with another lady and when they returned, they looked at Chebuoge and said that she was dead. They returned home where Winnie called her mother and informed her of the death. Winnie’s mother told them to report to the police.
10. Yussuf was left at home while he (PW1) together with Winnie and the other lady went to the police and wrote their statements. The police collected the body at about 4.00pm.
11. He stated that they had lived with Chebuoge at the home from August 2014 but he did not know whose child she was. She was about 9 to 10 years. He testified that they were staying with Winnie at the home but she was not looking after the children.
12. He said that the children were looked after well but he did not see anything else they did that day other than look out for the squirrels. He identified Winnie in Court. He said that his grandmother and Winnie’s mother are sisters. Scholastica is Winnie’s mother and his grandmother is called Sabina.
13. Further, he said that there was a day June Chebuoge slept outside and she said she had slept in the field. When he saw her in the field, she did not appear hurt.
14. On cross examination by counsel for the accused, he said that he used to herd goats and there were no cows. They had lunch on that day before the children returned from school. On that day Winnie had a small child she was breastfeeding and the child was not yet able to walk. June Chebuoge was also called Kavake and Chepkorir was older than Chebuoge. When June and Chepkorir arrived, they were served with food by Winnie. The lady who used to work in the home was called Mrs. Mumo and she was there. After lunch, Winnie told the child to go to the shamba and make sure the squirrels did not eat the crops. They used to do that every day after lunch and would come back at 5.00 p.m.
15. On 8th April 2015, Yussuf also went to the shamba on the lower part. It was the same shamba where the children were. When he (PW1) let out the goats, he saw June and Chepkorir near the shamba and passed them. When he last saw June, it was about 4.00 p.m. at the shamba and she was with Chepkorir . When he heard Winnie calling Chebuoge, she was using the name Kavake. He heard her call many times when he was grazing the goats. Winnie called him from the house and asked whether he had seen her and he said that he had not seen Kavake. He said he did not see Yussuf. He said there were trees and one could not see the home from where he was. He did not see Winnie leaving the home.
16. When he went back to the home, he found Winnie, Chepkorir and the one whose name he did not know. Mrs. Mumo had left the home after finishing her work. It was normal for June and Chepkorir to run away and they (PW1 & the rest) did not know where they would sleep. One day when they ran away, they said they had slept under a tree. They did not know why they slept there. He denied any knowledge of what killed June.
17. He confirmed that there was a statement they wrote at Kalawa police station on 14th April 2016. He stated that the second further statement was longer because Winnie told them not to say or tell her mother that there was a man at her house. The man slept at Winnie’s house. They went to the police station with Winnie, Yussuf and the assistant chief. He confirmed that they were arrested the 1st day they went to Kalawa police station on Friday and they stayed there for more than a week.
18. He testified that before being released, the police asked them to write another statement. In the first statement, he did not state that Winnie’s friend was at the house. Yussuf said that they should tell about the man’s presence in the house. He denied any involvement in the murder and said that he did not know how the body of June came to be in the forest. He stated that on the day Winnie was calling Kavake, he did not see Mbula the assistant chief as he never went to their homestead.
19. He stated that there was a mango tree near the assistant chief’s house and June and Chepkorir used to pick mangoes there. That there is a day they stole mangoes from Mbula’s farm and returned with mangoes in a sack. Mbula later cut down the mango tree. He did not know if Mbula took the sack of mangoes. That the man who was with Winnie was arrested. He heard that the man was to be brought to the police station but did not see him and had not seen him since that day. That the man slept in Winnie’s house on the night of 8th to 9th April 2015.
20. PW2 was Faustina Mwikali Mbindyo, a resident of Kalawa, Kamine village and a casual laborer. She recalled that on 8th April, 2015 at 12.00 noon, she was at home. She went to Scholastica’s home at 12.00 noon to undertake some work. She found Winnie outside her house on her own and they chatted. While they were talking, a boy called Dennis came running and said that he had seen the child Kavake in a thicket asleep. He said that he tried to call her but she did not respond. She knew Kavake as she would meet her when she came to work at their home but did not know whose child she was.
21. As Dennis was telling them about the incident person she didn’t know came from Winnie’s house. Winnie told them to go and see Kavake and they all went i.e., PW2, Winnie, the man and Dennis. They were led to the thicket by Dennis and she saw the child lying on the ground . She said it was about 2 kilometers from the home.
22. Winnie called her mother Scholastica and informed her. She escorted Winnie to the police station where she made a report and then returned home. She did not know what happened thereafter. She returned to the Police Station on 17th April, 2015 to record her statement. She said that she did not know Kavake very well.
23. She said that she had not worked there many times and would return home before the children arrived from school. She had known Winnie for a short while and they did not have relationship. She identified Winnie in court.
24. On cross- examination, she said that she used to work at the home in the morning and leave at lunch. She used to arrive at 8.00 am and leave at around 12noon. On that day, she had gone with her small child of 1 year and 2 months and had arrived at12 noon because it had rained. On 8th August, 2015 she had also gone there to work but she left early at noon. She saw Winnie on 8th August, 2015. There was also a man that she left there.
25. She testified that the children, June and Chepkorir did not find her on 8th April, 2015. Dennis found her but not the children. That Yusuf was guarding the maize shamba so that the squirrels would not come in. She was also to guard the farm against the squirrels on that day but did not do it.
26. PW3 was Bendetta Kasaku Tanui. She testified that she was a resident of Kericho, a casual labourer and a mother of four children but one is deceased. She named her children are in the order of their birth. In August, 2012 she had 3 children and after differing with her husband, she left Kericho and went to her mother in Kibera. She met a man called Josphat Blakie who introduced her to a woman called Scholastica in September 2012.Scholastica employed her to sell water at a salary of kshs 5,000/= per month. She worked at Scholastica’s shop in Kibera for one month and then Scholastica forced her and the children to go to Kalawa in January 2013. It was Scholastica’s son who took them to country bus and travelled with them to Kalawa. After one-week Scholastica went to Kalawa and she (PW3) told her that she wanted to go back home. She did not have a telephone to contact her relatives when she left for Kalawa. Scholastica insulted her and returned to Nairobi after a week with June, the deceased. Scholastica’s sons Kasee & Kevin started to beat her. She stayed at Kalawa for six months. She reported to the police station. Scholastica did not pay her and she had no fare to go back home. Another child of about 8 years called Diana was brought from Kibera by Scholastica’s daughter called Carol. The child was brought by a daughter of Scholastica called Carol. The child used to cry a lot. Scholastica then called and asked that the child be taken back.
27. She testified that she reported to the police station as she wanted to go back but was being prevented by Scholastica. She sold water and made Kshs. 600/= and went back to her parents in Nairobi in August, 2013. She got a job at a hotel and got a house for her children. Joseph Blakie told her that Scholastica wanted to say hallo to the children. In December, 2015 when she was at work, a child of Josphat Blakie told her Scholastica had taken her two children to buy them shoes. She went to look for her children and found Scholastica’s husband who told her that he did not know anything about the children. She called Scholastica who told her to take her where she wanted. PW3’s father told her to tell the chief and the chief told her to report to the police. She reported at the Police Post at Kenyatta and was then told by the chief to talk to the children officer. They wrote a letter to Scholastica and Scholastica and her husband told her (PW3) that the children had been taken home to Kalawa. They went to Kalawa, where they found Scholastica who took Blakie to her home. She (PW3) went to the police station at 6.00 p.m. and stayed there until morning. The police told her to take the letter to the chief and the chief told her that they could not help her.
28. She went to the home of Scholastica and found the children looking out for squirrels at the farm. She returned to Nairobi and went back to the police station. Scholastica went to the children home and wrote that she would return the children. She (Scholastica) however took the children. She (PW3) was pregnant at the time and she went back to Kericho Police Station and children home and at that point her cousin told her that her child June had died. June was then 8 years old. She identified a clinic card (MFI) showing that June was born on 15th July, 2007.
29. Her cousin called her on 9th April, 2015 and told her that she was wanted in court. She travelled on 10th April, 2015 with her child’s father and went to her cousin’s house at Kibera. Her cousin told her that her child had packed her clothes and was found dead under a tree. She reported to the police at Kenyatta Police Post and then went to Kalawa Police Station on 13th March, 2014 with her cousins, father, uncle, brother, children officer and father of her child. They were nine.
30. She remained at the police station at Kalawa and the children officer and police went and fetched Scholastica, Winnie, Dennis Yusuf, Chepkorir and the chief. She knew them all from when she was working there. They said that the child packed her clothes and left and that they did not see her again. They stayed at the police station on 13th March, 2015 but did not see the child’s body. They went back to Nairobi with Chepkerui.
31. On 14th March, 2015 the DCIO recorded her statement and on 15th March, 2015, they were shown the child’s body. It was decomposed and she could only identity the deceased through a black mark on the forehead. The postmortem was done on 23rd August, 2015 at Machakos Hospital and she identified her child. She saw that the ribs, leg and throat were broken. Chepkorir told her that Winnie sent the deceased for a steel wire of 5 Kshs but the deceased brought a steel wire of 10 Kshs. That Winnie started beating the deceased with a stick. She then took the child to the house and got the chief who told her that the child was dead.
32. On cross-examination, she said that she did not report at Kalawa Police Station how Kalee and Kelvin were beating her. Scholastica’s home was near the stage and the assistant chief was a neighbour of Scholastica. She confirmed that she did not make any report to the assistant chief or chief and that she was not being locked up or retrained. She testified that she had gone to Kalawa for her children. That when Joseph told her that Scholastica wanted to say hallo to the children, he is the one who took the children himself.
33. She said she did not go to report to the police when she found that the children had gone to Scholastica’s, that June who was 6 years old then was refusing to go back with her and would cry. She said she gave the letters from the children officer to the police. Scholastica was not charged in court and she (PW3) was also not charged in court. She denied wanting to kill her children and stated that it was Scholastica who told the children officer on 13th January 2014 that she (PW3) wanted to kill her children.
34. She said that she could not take the children there because the children officer and Scholastica were insulting her and were against her. They gave her authority to go home to deliver and Scholastica took the children. She (PW3) took them to Primary School in Kericho. She denied being a drunk or putting her children at risk after differing with her husband. She said she was not communicating with her children. The children were not taken by Winnie. That she left Keronga at the homestead and got to meet Denis at the police station. She did not know him before. That when they went to the Kalawa Station after the death of the child, Scholastica, Mbula, Winnie, Chepkrui and the rest were taken from the home before the OCS. She said that the OCS did not want to tell the truth and was hiding information on how the child (deceased) was beaten and she did not know why. She said that Chepkorir told her Winnie had beaten the child for buying the wrong steel wool. She denied killing her child and said that she used to care for her. She told the court that she had faithfully taken the child to clinic for 9 months according to the clinic card and never abandoned her. She said that her husband was not in court because it was not his case.
35. PW4 was Valentine Chepkorir. After voire dire examination she was found to be of sufficient intelligence to give evidence and to appreciate the importance of telling the truth. The court noted however that she did not understand the effect of an oath and took her unsworn evidence. She testified that Mutheu was not her name; she was 12 years old and in standard three at Thulgul Primary School; stayed with her mother and father and her mother whose name was Bendetta Kasalu. She did not know her father’s name. she named her siblings and stated that her sister June Chebkwogen was no longer with them because she was killed.
36. She could not remember the name of the place they staying with Chebkwogen in 2015 but recalled Dennis, Karoga, Yusuf and Winnie. She identified Winnie in court. She could not remember the date Chepkwogen was killed but told the court that on the day she died, they woke up, washed legs and went to school. Winnie made for them tea in the morning. She could not remember the name of the school they were then. She was then in standard two and June was in standard one. The school was not near the home. There was no other person in the home only Winne. They left school at 1.00 pm and went home. They found Winnie, Dennis, Karoga and Yusuf. Karoga used to look after the cows. There were only two children at the home, her and June.
37. When they got home, they removed their school clothes and put on home clothes. Winnie served them githeri which they ate. Winnie then told them to go look out for the squirrels at the shamba. There was no one else at the shamba. Winnie then called her to go and wash the utensils and when she got to the sufuria, Winnie told her to go to the shop to buy steel wire however Chepkwogen said she would go. Winnie told Chepkwogen to give her a paper and a pen and wrote for her and gave her Kshs. 10 coin.
38. Chepkwogen went to the shop but bought the steel wire of five shillings. Winnie told her to return it as she had been sent the one for Kshs.10. She went back to the shop, returned and told Winnie that the owner of the shop had refused to give her back the money. She had the steel wire of Kshs.5. Winnie then sent her (PW4) to the gate to get a kiboko (cane) which was long and Winnie broke it into two using her leg. She said that Winnie then hit June with one cane and then strangled her with the rope used to tie the cows which was outside the house.
39. . She (PW4) was outside the house with Winnie and June; that Dennis and Yusuf were not there; Dennis was looking after the goats and Karoga was looking after the cows. She said that when Winnie was caning her, June was crying but when Winnie strangled her, she was silent and. Winnie then called Mbula on the phone, who arrived touched June at the chest and said she had died.
40. Winnie then took a gunny bag from the store, she removed the rope from June’s neck and put it where it was and put June in the bag and went to throw her away; that Mbula and Winnie were the ones who carried June to throw her away in the forest where there were many trees that was far from the home; and it was during the day ;that she (PW4) followed them; they removed June from the bag, put her on ground and left her there. ; that they saw her following them. They returned home did not get anyone there. When Yusuf and Dennis returned, no one told them what had happened.
41. That night Winnie cooked food – Ugali and Vegetables and went to sleep. No one asked where June was. In the morning at 7.00 a.m., Winnie made a telephone call to Scholar before she (PW4) went to school. Winnie told Scholar that Chebwogen had died. She was told to go and report to the police. PW4 went to school and left Winnie at the house. When PW4 returned, she found Winnie with another woman whose name she didn’t know. No one told PW4 anything and what was happening. After that, other people arrived with a car to carry Chepbwogen. The people were wearing police uniform.
42. They carried Chepbwogen from the forest below the garden where there are trees. PW4 did not go there when they took Chepbwogen. Scholar arrived the next day. The people did not ask PW4 what happened. PW4 went to the police station on a date she could not remember but the police did not ask her what she saw. It was only the teacher at school who asked her what she saw.
43. She said there was a time she went to the police station alone and it was not far. She told her standard two teacher called Susan. The teacher asked where Chepbwogen was and PW4 told her that she had died. She stated that they had stayed with their mother in that home but Scholar chased her away; that their mother had come for them before Chepbwogen died but Scholar refused.
44. Before Chebwogen died PW4 had gone with her mother and Scholar to the police at Nairobi but PW4 did not know what they went to do at the police. After Chepbwogen died, their mother came that morning and took her away
45. On cross-examination, she said that when they went to look out for squirrels, Yusuf was there chasing the squirrels and they were helping him. Below the shamba was a bush. Karoga was looking after the cows. PW4 could not remember Winnie sending Dennis to buy steel wire. It was Chepbwogen who was sent to buy. When Winnie was beating Chepbwogen, it was only PW4 and Winnie who were there. Dennis and Yusuf were not there. Winnie was the one who called Mbula. When Mbula arrived, he found Chepbwogen on the ground and she was not talking. Mbula and Winnie put Chepbwogen in a gunny bag. PW4 found them but did not tell the police what happened. Dennis and Yusuf were not there when Chepbwogen was put in a gunny bag.
46. PW5 was Robert Cheruyiot Tanui from Kericho County. He testified that he is a farmer and is married to Bendetta Kasalu (PW3). They now have four children but had five before among them Chepbwogen the deceased who was born around 2007. Before 2015, he was staying with the children and the mother. That he differed with his wife and she took the children to Nairobi.
47. In April 2015, he witnessed the postmortem of his child June Chepbwogen at Machakos Hospital .He was with the child’s mother and doctor. He identified the body and after the postmortem, the doctor told them that she had been strangled and had injuries on the chest. Before June died, they tried to get the children but Scholastica used to refuse to give the children. He didn’t know where Scholastica took the children. He did not know the accused before June died.
48. On cross- examination, he said that he knew and saw the accused when they went to see the deceased’s body at Kalawa Mortuary and saw her at Kalawa Police Station. He had been called before when the children were taken by Scholastica. He went to the children office at Nairobi at DC’s office but did not get the children.
49. PW6 was Dr. Stephen Musembi of Makueni county referral Hospital. Who testified on behalf of Dr. Waithera whom he worked with at Machakos Hospital. He knew her handwriting and signature. He testified that the report referred to the body of a young female African body which had decomposed skin slippage, lacerations on right neck, suspected strangulation marks on neck with deep muscle compression. No other noted external injuries.
50. On further examination there was fracture on the ribs – 5th – 11 on left side and food particles on airway. Nothing was noted on other systems. The opinion was that cause of death was asphyxia. There were strangulation marks on the side of the neck. The doctor signed and stamped the report in 2015. He produced the post-mortem report as exhibit 2.
51. On cross-examination, he said that the body was decomposed. Decomposition noted was relevant. Depending of the level you may not be able to note some external injuries. Internal injuries will not be affected. There was no indication of what was used to strangle the deceased. No indication if it was hands or a rope. There were no other external injuries other than strangulation and broken ribs. If the mother said leg was broken, he could not go by that as a professional doctor. If the child was whipped all over the body, it may cause death depending on what part of the body was whipped. Dr. Waithera did not indicate whipping on the body. Lacerations were only on the neck. The fracture on the ribs could be caused by a stick depending on the size of the stick. It was only on left side of the ribs. The doctor noted suspected strangulation on the neck, with deep muscle compression.
52. PW7 was Yusuf Machio Idris, born in Matungu and resident of Matungu testified that his work was painting and decorations and was aware of the case before court. He knew the deceased as Kibet but was not sure. He knew the accused as Winnie. He was living with his mother from October 2014. In December 2014 his mother shifted from Githurai to Kibera Laini Saba where he met Winnie. Winnie’s mother employed him to sell water. They got used to each other and she told him that she would employ him at home.
53. Winnie took him to Ukambani in April 2015 where met a young man called Denis and two young girls – Kipkorir and another. Winnie and her young daughter were there. Winnie’s mother told him to work in the farm while Denis herded the goats. After sometime, Winnie’s mother left on 7/4/2015 for Nairobi.
54. After she left, a male visitor arrived whom he did not know. Winnie welcomed him like a special visitor.
55. At 5pm, he decided to go and take a bath near the toilet. He entered to help himself and when he came out, he met Winnie carrying the child who appeared to be unconscious. The child was lying on the shoulder and there appeared to be froth oozing from the mouth and nose. The head of the child was bent. Winnie told him that the child had fainted but did not tell him the cause of the fainting. He then returned into the house where he used to sleep with Denis.
56. After five minutes, Winnie returned and told him that he should keep what had happened secret and she would pay him. After that, she told him to go to the farm and she called the elder sister of deceased from the gate to go and wash utensils. It was around 6pm on 8th. He went to the farm but did not stay there for long and decided to return. He found that Denis had returned. The sister of the deceased was washing utensils. Winnie was not there. Then Winnie called him and Denis loudly and said that her daughter had disappeared the way it had been her habit. They ate dinner and slept.
57. He did not ask Winnie any questions as he was not used to her. He had been there for only 7 days. Winnie went to her house with the visitor and he went to sleep. In the morning at 11am, Denis took the goats to a neighbor’s farm. He was together with Denis but on different sides. That was when Denis noted the body of a child, the deceased.
58. Denis called him and told him that they try to wake up the child. He told Denis not to touch the body and to go call someone from the house . They called Winnie who went with her man and a woman who was weeding maize that day. Winnie’s man said “this is trouble”. Winnie said that they should report to the police. Then Winnie, her man, Denis and the woman left to go to the police. After a short while Winnie, the woman and Denis returned. Winnie’s man did not return. They returned with the police.
59. They put the child in a sack and put the body in the police vehicle. The next day, Winnie’s mother arrived from Nairobi and said that they should all record statements. They proceeded to the police station. He testified that Winnie reminded him not to reveal that he was an employee and to say that his mother was a friend of her mother and that he had gone only to visit. He told her that that was not true. He also said that Winnie told him to say that the child was injured in his presence . Since he did not have any person to explain the situation, he recorded what he was told. He recorded a statement with the police that day. He recorded that the child disappeared in the evening and that in the morning, they found her dead. He conceded that that was not the truth.
60. He stated that could not remember the date he recorded the first statement but that he was arrested together with a neighbor, maybe a subchief, and they were in the cells for 3 days. They were not assaulted by the police That on 18th April, he decided to record his independent statement giving the evidence he tendered in court. That nobody forced him to record the 2nd statement. That in 2015, he was 17 years old. After recording the second statement, the police told him that they would be attending court. The police then took him to Matungu and gave him bond. He never returned to the homestead of the Winnie’s mother again. He was in that homestead for 7 days. He had no grudge with Winnie. He identified Winnie in court.
61. On cross examination, he said that he was born in 1998. He had his identity card in court (ID reflects 1999). He was told by his grandmother that he was born in 1998. He came to know the accused in 2015. He was not employed by accused but her mother. He had lived for a week then he saw a male visitor join them. The mal
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2. The accused, Winnie Mumbe Kisia, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 of the Laws of Kenya.
3. The particulars are that on the 8th day of April 2015 at Kasooni Sub-Location, Mbooni East Sub-County within Makueni County, she murdered June Chebuoge alias Ndinda Kisia alias Kavake. At the that time the child was aged 8 years old.
4. The prosecution called eight (8) witnesses in support of its case.
Prosecution’s case
5. PW1 was Dennis Kavoi Mutuku, a minor. His testified that he was a resident of Konza Village and was neither going to school nor working. That he was staying with his grandmother Sabina Mutei. On 08/04/ 2015 he was at Kilawa and he ate lunch at home with Yusuf who had been employed at the house as a shamba boy, Winnie the accused and another boy he did not know and had only seen him on that day. After lunch, they rested outside the home under a tree.
6. At around 1.00pm, the children Jane Chebuoge and Chepkorir returned from school. He did not know whose children they were. They were given lunch and then they went to look out for the squirrels. At 4.00 p.m., he went to graze the goats at the shamba. The children were looking out for squirrels near the gate of the house and he left them there.
7. Dennis testified that he was in the field and around 6.00 p.m. he heard Winnie calling Chebuoge. She then called him and asked if he had seen Chebuoge and he said that he had not seen her. At 7.00 p.m., he took the goats home where he found Winnie, Yussuf, Chepkorir and the other boy. He locked up the goats and Winnie told him that Chebuoge had run away. She used to run away before and would then return. She used to leave in the evening and return the next day at 1.00 p.m. He did not know why she used to run away. They did not look for her. They ate and slept and Chebuoge had not returned.
8. The next day it rained in the morning and he asked Yussuf to assist him to heard and graze the goats. They took them to someone’s field but were asked to leave by the owner. The goats were then dispersed and when he went to look for some of them, he found Chebuoge lying under a tree. He called her and left her there. When he returned, he realized she had been rained on and there was blood on her nose.
9. He told Yusuf that they should carry her home but Yusuf told him to go home and call Winnie. He found Winnie at home with another lady and when they returned, they looked at Chebuoge and said that she was dead. They returned home where Winnie called her mother and informed her of the death. Winnie’s mother told them to report to the police.
10. Yussuf was left at home while he (PW1) together with Winnie and the other lady went to the police and wrote their statements. The police collected the body at about 4.00pm.
11. He stated that they had lived with Chebuoge at the home from August 2014 but he did not know whose child she was. She was about 9 to 10 years. He testified that they were staying with Winnie at the home but she was not looking after the children.
12. He said that the children were looked after well but he did not see anything else they did that day other than look out for the squirrels. He identified Winnie in Court. He said that his grandmother and Winnie’s mother are sisters. Scholastica is Winnie’s mother and his grandmother is called Sabina.
13. Further, he said that there was a day June Chebuoge slept outside and she said she had slept in the field. When he saw her in the field, she did not appear hurt.
14. On cross examination by counsel for the accused, he said that he used to herd goats and there were no cows. They had lunch on that day before the children returned from school. On that day Winnie had a small child she was breastfeeding and the child was not yet able to walk. June Chebuoge was also called Kavake and Chepkorir was older than Chebuoge. When June and Chepkorir arrived, they were served with food by Winnie. The lady who used to work in the home was called Mrs. Mumo and she was there. After lunch, Winnie told the child to go to the shamba and make sure the squirrels did not eat the crops. They used to do that every day after lunch and would come back at 5.00 p.m.
15. On 8th April 2015, Yussuf also went to the shamba on the lower part. It was the same shamba where the children were. When he (PW1) let out the goats, he saw June and Chepkorir near the shamba and passed them. When he last saw June, it was about 4.00 p.m. at the shamba and she was with Chepkorir . When he heard Winnie calling Chebuoge, she was using the name Kavake. He heard her call many times when he was grazing the goats. Winnie called him from the house and asked whether he had seen her and he said that he had not seen Kavake. He said he did not see Yussuf. He said there were trees and one could not see the home from where he was. He did not see Winnie leaving the home.
16. When he went back to the home, he found Winnie, Chepkorir and the one whose name he did not know. Mrs. Mumo had left the home after finishing her work. It was normal for June and Chepkorir to run away and they (PW1 & the rest) did not know where they would sleep. One day when they ran away, they said they had slept under a tree. They did not know why they slept there. He denied any knowledge of what killed June.
17. He confirmed that there was a statement they wrote at Kalawa police station on 14th April 2016. He stated that the second further statement was longer because Winnie told them not to say or tell her mother that there was a man at her house. The man slept at Winnie’s house. They went to the police station with Winnie, Yussuf and the assistant chief. He confirmed that they were arrested the 1st day they went to Kalawa police station on Friday and they stayed there for more than a week.
18. He testified that before being released, the police asked them to write another statement. In the first statement, he did not state that Winnie’s friend was at the house. Yussuf said that they should tell about the man’s presence in the house. He denied any involvement in the murder and said that he did not know how the body of June came to be in the forest. He stated that on the day Winnie was calling Kavake, he did not see Mbula the assistant chief as he never went to their homestead.
19. He stated that there was a mango tree near the assistant chief’s house and June and Chepkorir used to pick mangoes there. That there is a day they stole mangoes from Mbula’s farm and returned with mangoes in a sack. Mbula later cut down the mango tree. He did not know if Mbula took the sack of mangoes. That the man who was with Winnie was arrested. He heard that the man was to be brought to the police station but did not see him and had not seen him since that day. That the man slept in Winnie’s house on the night of 8th to 9th April 2015.
20. PW2 was Faustina Mwikali Mbindyo, a resident of Kalawa, Kamine village and a casual laborer. She recalled that on 8th April, 2015 at 12.00 noon, she was at home. She went to Scholastica’s home at 12.00 noon to undertake some work. She found Winnie outside her house on her own and they chatted. While they were talking, a boy called Dennis came running and said that he had seen the child Kavake in a thicket asleep. He said that he tried to call her but she did not respond. She knew Kavake as she would meet her when she came to work at their home but did not know whose child she was.
21. As Dennis was telling them about the incident person she didn’t know came from Winnie’s house. Winnie told them to go and see Kavake and they all went i.e., PW2, Winnie, the man and Dennis. They were led to the thicket by Dennis and she saw the child lying on the ground . She said it was about 2 kilometers from the home.
22. Winnie called her mother Scholastica and informed her. She escorted Winnie to the police station where she made a report and then returned home. She did not know what happened thereafter. She returned to the Police Station on 17th April, 2015 to record her statement. She said that she did not know Kavake very well.
23. She said that she had not worked there many times and would return home before the children arrived from school. She had known Winnie for a short while and they did not have relationship. She identified Winnie in court.
24. On cross- examination, she said that she used to work at the home in the morning and leave at lunch. She used to arrive at 8.00 am and leave at around 12noon. On that day, she had gone with her small child of 1 year and 2 months and had arrived at12 noon because it had rained. On 8th August, 2015 she had also gone there to work but she left early at noon. She saw Winnie on 8th August, 2015. There was also a man that she left there.
25. She testified that the children, June and Chepkorir did not find her on 8th April, 2015. Dennis found her but not the children. That Yusuf was guarding the maize shamba so that the squirrels would not come in. She was also to guard the farm against the squirrels on that day but did not do it.
26. PW3 was Bendetta Kasaku Tanui. She testified that she was a resident of Kericho, a casual labourer and a mother of four children but one is deceased. She named her children are in the order of their birth. In August, 2012 she had 3 children and after differing with her husband, she left Kericho and went to her mother in Kibera. She met a man called Josphat Blakie who introduced her to a woman called Scholastica in September 2012.Scholastica employed her to sell water at a salary of kshs 5,000/= per month. She worked at Scholastica’s shop in Kibera for one month and then Scholastica forced her and the children to go to Kalawa in January 2013. It was Scholastica’s son who took them to country bus and travelled with them to Kalawa. After one-week Scholastica went to Kalawa and she (PW3) told her that she wanted to go back home. She did not have a telephone to contact her relatives when she left for Kalawa. Scholastica insulted her and returned to Nairobi after a week with June, the deceased. Scholastica’s sons Kasee & Kevin started to beat her. She stayed at Kalawa for six months. She reported to the police station. Scholastica did not pay her and she had no fare to go back home. Another child of about 8 years called Diana was brought from Kibera by Scholastica’s daughter called Carol. The child was brought by a daughter of Scholastica called Carol. The child used to cry a lot. Scholastica then called and asked that the child be taken back.
27. She testified that she reported to the police station as she wanted to go back but was being prevented by Scholastica. She sold water and made Kshs. 600/= and went back to her parents in Nairobi in August, 2013. She got a job at a hotel and got a house for her children. Joseph Blakie told her that Scholastica wanted to say hallo to the children. In December, 2015 when she was at work, a child of Josphat Blakie told her Scholastica had taken her two children to buy them shoes. She went to look for her children and found Scholastica’s husband who told her that he did not know anything about the children. She called Scholastica who told her to take her where she wanted. PW3’s father told her to tell the chief and the chief told her to report to the police. She reported at the Police Post at Kenyatta and was then told by the chief to talk to the children officer. They wrote a letter to Scholastica and Scholastica and her husband told her (PW3) that the children had been taken home to Kalawa. They went to Kalawa, where they found Scholastica who took Blakie to her home. She (PW3) went to the police station at 6.00 p.m. and stayed there until morning. The police told her to take the letter to the chief and the chief told her that they could not help her.
28. She went to the home of Scholastica and found the children looking out for squirrels at the farm. She returned to Nairobi and went back to the police station. Scholastica went to the children home and wrote that she would return the children. She (Scholastica) however took the children. She (PW3) was pregnant at the time and she went back to Kericho Police Station and children home and at that point her cousin told her that her child June had died. June was then 8 years old. She identified a clinic card (MFI) showing that June was born on 15th July, 2007.
29. Her cousin called her on 9th April, 2015 and told her that she was wanted in court. She travelled on 10th April, 2015 with her child’s father and went to her cousin’s house at Kibera. Her cousin told her that her child had packed her clothes and was found dead under a tree. She reported to the police at Kenyatta Police Post and then went to Kalawa Police Station on 13th March, 2014 with her cousins, father, uncle, brother, children officer and father of her child. They were nine.
30. She remained at the police station at Kalawa and the children officer and police went and fetched Scholastica, Winnie, Dennis Yusuf, Chepkorir and the chief. She knew them all from when she was working there. They said that the child packed her clothes and left and that they did not see her again. They stayed at the police station on 13th March, 2015 but did not see the child’s body. They went back to Nairobi with Chepkerui.
31. On 14th March, 2015 the DCIO recorded her statement and on 15th March, 2015, they were shown the child’s body. It was decomposed and she could only identity the deceased through a black mark on the forehead. The postmortem was done on 23rd August, 2015 at Machakos Hospital and she identified her child. She saw that the ribs, leg and throat were broken. Chepkorir told her that Winnie sent the deceased for a steel wire of 5 Kshs but the deceased brought a steel wire of 10 Kshs. That Winnie started beating the deceased with a stick. She then took the child to the house and got the chief who told her that the child was dead.
32. On cross-examination, she said that she did not report at Kalawa Police Station how Kalee and Kelvin were beating her. Scholastica’s home was near the stage and the assistant chief was a neighbour of Scholastica. She confirmed that she did not make any report to the assistant chief or chief and that she was not being locked up or retrained. She testified that she had gone to Kalawa for her children. That when Joseph told her that Scholastica wanted to say hallo to the children, he is the one who took the children himself.
33. She said she did not go to report to the police when she found that the children had gone to Scholastica’s, that June who was 6 years old then was refusing to go back with her and would cry. She said she gave the letters from the children officer to the police. Scholastica was not charged in court and she (PW3) was also not charged in court. She denied wanting to kill her children and stated that it was Scholastica who told the children officer on 13th January 2014 that she (PW3) wanted to kill her children.
34. She said that she could not take the children there because the children officer and Scholastica were insulting her and were against her. They gave her authority to go home to deliver and Scholastica took the children. She (PW3) took them to Primary School in Kericho. She denied being a drunk or putting her children at risk after differing with her husband. She said she was not communicating with her children. The children were not taken by Winnie. That she left Keronga at the homestead and got to meet Denis at the police station. She did not know him before. That when they went to the Kalawa Station after the death of the child, Scholastica, Mbula, Winnie, Chepkrui and the rest were taken from the home before the OCS. She said that the OCS did not want to tell the truth and was hiding information on how the child (deceased) was beaten and she did not know why. She said that Chepkorir told her Winnie had beaten the child for buying the wrong steel wool. She denied killing her child and said that she used to care for her. She told the court that she had faithfully taken the child to clinic for 9 months according to the clinic card and never abandoned her. She said that her husband was not in court because it was not his case.
35. PW4 was Valentine Chepkorir. After voire dire examination she was found to be of sufficient intelligence to give evidence and to appreciate the importance of telling the truth. The court noted however that she did not understand the effect of an oath and took her unsworn evidence. She testified that Mutheu was not her name; she was 12 years old and in standard three at Thulgul Primary School; stayed with her mother and father and her mother whose name was Bendetta Kasalu. She did not know her father’s name. she named her siblings and stated that her sister June Chebkwogen was no longer with them because she was killed.
36. She could not remember the name of the place they staying with Chebkwogen in 2015 but recalled Dennis, Karoga, Yusuf and Winnie. She identified Winnie in court. She could not remember the date Chepkwogen was killed but told the court that on the day she died, they woke up, washed legs and went to school. Winnie made for them tea in the morning. She could not remember the name of the school they were then. She was then in standard two and June was in standard one. The school was not near the home. There was no other person in the home only Winne. They left school at 1.00 pm and went home. They found Winnie, Dennis, Karoga and Yusuf. Karoga used to look after the cows. There were only two children at the home, her and June.
37. When they got home, they removed their school clothes and put on home clothes. Winnie served them githeri which they ate. Winnie then told them to go look out for the squirrels at the shamba. There was no one else at the shamba. Winnie then called her to go and wash the utensils and when she got to the sufuria, Winnie told her to go to the shop to buy steel wire however Chepkwogen said she would go. Winnie told Chepkwogen to give her a paper and a pen and wrote for her and gave her Kshs. 10 coin.
38. Chepkwogen went to the shop but bought the steel wire of five shillings. Winnie told her to return it as she had been sent the one for Kshs.10. She went back to the shop, returned and told Winnie that the owner of the shop had refused to give her back the money. She had the steel wire of Kshs.5. Winnie then sent her (PW4) to the gate to get a kiboko (cane) which was long and Winnie broke it into two using her leg. She said that Winnie then hit June with one cane and then strangled her with the rope used to tie the cows which was outside the house.
39. . She (PW4) was outside the house with Winnie and June; that Dennis and Yusuf were not there; Dennis was looking after the goats and Karoga was looking after the cows. She said that when Winnie was caning her, June was crying but when Winnie strangled her, she was silent and. Winnie then called Mbula on the phone, who arrived touched June at the chest and said she had died.
40. Winnie then took a gunny bag from the store, she removed the rope from June’s neck and put it where it was and put June in the bag and went to throw her away; that Mbula and Winnie were the ones who carried June to throw her away in the forest where there were many trees that was far from the home; and it was during the day ;that she (PW4) followed them; they removed June from the bag, put her on ground and left her there. ; that they saw her following them. They returned home did not get anyone there. When Yusuf and Dennis returned, no one told them what had happened.
41. That night Winnie cooked food – Ugali and Vegetables and went to sleep. No one asked where June was. In the morning at 7.00 a.m., Winnie made a telephone call to Scholar before she (PW4) went to school. Winnie told Scholar that Chebwogen had died. She was told to go and report to the police. PW4 went to school and left Winnie at the house. When PW4 returned, she found Winnie with another woman whose name she didn’t know. No one told PW4 anything and what was happening. After that, other people arrived with a car to carry Chepbwogen. The people were wearing police uniform.
42. They carried Chepbwogen from the forest below the garden where there are trees. PW4 did not go there when they took Chepbwogen. Scholar arrived the next day. The people did not ask PW4 what happened. PW4 went to the police station on a date she could not remember but the police did not ask her what she saw. It was only the teacher at school who asked her what she saw.
43. She said there was a time she went to the police station alone and it was not far. She told her standard two teacher called Susan. The teacher asked where Chepbwogen was and PW4 told her that she had died. She stated that they had stayed with their mother in that home but Scholar chased her away; that their mother had come for them before Chepbwogen died but Scholar refused.
44. Before Chebwogen died PW4 had gone with her mother and Scholar to the police at Nairobi but PW4 did not know what they went to do at the police. After Chepbwogen died, their mother came that morning and took her away
45. On cross-examination, she said that when they went to look out for squirrels, Yusuf was there chasing the squirrels and they were helping him. Below the shamba was a bush. Karoga was looking after the cows. PW4 could not remember Winnie sending Dennis to buy steel wire. It was Chepbwogen who was sent to buy. When Winnie was beating Chepbwogen, it was only PW4 and Winnie who were there. Dennis and Yusuf were not there. Winnie was the one who called Mbula. When Mbula arrived, he found Chepbwogen on the ground and she was not talking. Mbula and Winnie put Chepbwogen in a gunny bag. PW4 found them but did not tell the police what happened. Dennis and Yusuf were not there when Chepbwogen was put in a gunny bag.
46. PW5 was Robert Cheruyiot Tanui from Kericho County. He testified that he is a farmer and is married to Bendetta Kasalu (PW3). They now have four children but had five before among them Chepbwogen the deceased who was born around 2007. Before 2015, he was staying with the children and the mother. That he differed with his wife and she took the children to Nairobi.
47. In April 2015, he witnessed the postmortem of his child June Chepbwogen at Machakos Hospital .He was with the child’s mother and doctor. He identified the body and after the postmortem, the doctor told them that she had been strangled and had injuries on the chest. Before June died, they tried to get the children but Scholastica used to refuse to give the children. He didn’t know where Scholastica took the children. He did not know the accused before June died.
48. On cross- examination, he said that he knew and saw the accused when they went to see the deceased’s body at Kalawa Mortuary and saw her at Kalawa Police Station. He had been called before when the children were taken by Scholastica. He went to the children office at Nairobi at DC’s office but did not get the children.
49. PW6 was Dr. Stephen Musembi of Makueni county referral Hospital. Who testified on behalf of Dr. Waithera whom he worked with at Machakos Hospital. He knew her handwriting and signature. He testified that the report referred to the body of a young female African body which had decomposed skin slippage, lacerations on right neck, suspected strangulation marks on neck with deep muscle compression. No other noted external injuries.
50. On further examination there was fracture on the ribs – 5th – 11 on left side and food particles on airway. Nothing was noted on other systems. The opinion was that cause of death was asphyxia. There were strangulation marks on the side of the neck. The doctor signed and stamped the report in 2015. He produced the post-mortem report as exhibit 2.
51. On cross-examination, he said that the body was decomposed. Decomposition noted was relevant. Depending of the level you may not be able to note some external injuries. Internal injuries will not be affected. There was no indication of what was used to strangle the deceased. No indication if it was hands or a rope. There were no other external injuries other than strangulation and broken ribs. If the mother said leg was broken, he could not go by that as a professional doctor. If the child was whipped all over the body, it may cause death depending on what part of the body was whipped. Dr. Waithera did not indicate whipping on the body. Lacerations were only on the neck. The fracture on the ribs could be caused by a stick depending on the size of the stick. It was only on left side of the ribs. The doctor noted suspected strangulation on the neck, with deep muscle compression.
52. PW7 was Yusuf Machio Idris, born in Matungu and resident of Matungu testified that his work was painting and decorations and was aware of the case before court. He knew the deceased as Kibet but was not sure. He knew the accused as Winnie. He was living with his mother from October 2014. In December 2014 his mother shifted from Githurai to Kibera Laini Saba where he met Winnie. Winnie’s mother employed him to sell water. They got used to each other and she told him that she would employ him at home.
53. Winnie took him to Ukambani in April 2015 where met a young man called Denis and two young girls – Kipkorir and another. Winnie and her young daughter were there. Winnie’s mother told him to work in the farm while Denis herded the goats. After sometime, Winnie’s mother left on 7/4/2015 for Nairobi.
54. After she left, a male visitor arrived whom he did not know. Winnie welcomed him like a special visitor.
55. At 5pm, he decided to go and take a bath near the toilet. He entered to help himself and when he came out, he met Winnie carrying the child who appeared to be unconscious. The child was lying on the shoulder and there appeared to be froth oozing from the mouth and nose. The head of the child was bent. Winnie told him that the child had fainted but did not tell him the cause of the fainting. He then returned into the house where he used to sleep with Denis.
56. After five minutes, Winnie returned and told him that he should keep what had happened secret and she would pay him. After that, she told him to go to the farm and she called the elder sister of deceased from the gate to go and wash utensils. It was around 6pm on 8th. He went to the farm but did not stay there for long and decided to return. He found that Denis had returned. The sister of the deceased was washing utensils. Winnie was not there. Then Winnie called him and Denis loudly and said that her daughter had disappeared the way it had been her habit. They ate dinner and slept.
57. He did not ask Winnie any questions as he was not used to her. He had been there for only 7 days. Winnie went to her house with the visitor and he went to sleep. In the morning at 11am, Denis took the goats to a neighbor’s farm. He was together with Denis but on different sides. That was when Denis noted the body of a child, the deceased.
58. Denis called him and told him that they try to wake up the child. He told Denis not to touch the body and to go call someone from the house . They called Winnie who went with her man and a woman who was weeding maize that day. Winnie’s man said “this is trouble”. Winnie said that they should report to the police. Then Winnie, her man, Denis and the woman left to go to the police. After a short while Winnie, the woman and Denis returned. Winnie’s man did not return. They returned with the police.
59. They put the child in a sack and put the body in the police vehicle. The next day, Winnie’s mother arrived from Nairobi and said that they should all record statements. They proceeded to the police station. He testified that Winnie reminded him not to reveal that he was an employee and to say that his mother was a friend of her mother and that he had gone only to visit. He told her that that was not true. He also said that Winnie told him to say that the child was injured in his presence . Since he did not have any person to explain the situation, he recorded what he was told. He recorded a statement with the police that day. He recorded that the child disappeared in the evening and that in the morning, they found her dead. He conceded that that was not the truth.
60. He stated that could not remember the date he recorded the first statement but that he was arrested together with a neighbor, maybe a subchief, and they were in the cells for 3 days. They were not assaulted by the police That on 18th April, he decided to record his independent statement giving the evidence he tendered in court. That nobody forced him to record the 2nd statement. That in 2015, he was 17 years old. After recording the second statement, the police told him that they would be attending court. The police then took him to Matungu and gave him bond. He never returned to the homestead of the Winnie’s mother again. He was in that homestead for 7 days. He had no grudge with Winnie. He identified Winnie in court.
61. On cross examination, he said that he was born in 1998. He had his identity card in court (ID reflects 1999). He was told by his grandmother that he was born in 1998. He came to know the accused in 2015. He was not employed by accused but her mother. He had lived for a week then he saw a male visitor join them. The mal
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