Dr. John Nyamu and two nurses, M. Kibathi and M. Mathai, were charged with murdering an unidentified female fetus and an unidentified male fetus under Sections 203 and 204 of the Kenya Penal Code. The accused argued that the State did not provide any evidence that they committed murder and requested the court to vacate the claim. The lower court declined, noting that while it could be appropriate for a subordinate court to end the case at that stage, a High Court was expected to ensure that the defense accounted for any gaps in the State’s case.
The High Court examined two issues: (1) whether the two fetuses were persons capable of being killed and (2) whether the evidence indicated that any or all the accused persons murdered the fetuses.
Although the State argued that the operative part of Section 214 should be “whether it has breathed or not, and whether it has an independent circulation or not,” the Court found the operative part to be “when it has completely proceeded in a living state from its mother.” The State’s witness who autopsied the fetuses testified that they were “born dead” and had not proceeded in a living state from the womb. This evidence was not contradicted and the Court held that the fetuses were not persons capable of being killed.
On the second issue, the Court looked at the State’s evidence claiming that the accused had dumped human fetuses and incriminating documents from the health clinics where the fetuses were aborted. The Court found that the State had not provided enough evidence because: (i) some of the witnesses were not impartial, (ii) substantial discrepancies were evident in some of their statements, (iii) some were not credible based on the responses they gave during cross examination, and (iv) the veracity of certain documents was uncertain.
The Court also found that the evidence did not show whether any of the accused were on duty at the clinics on the days the alleged murders occurred, or whether the documents that were allegedly recovered from the scene linked Dr. Nyamu to the alleged crime. The Court therefore found that the State’s case contained inexplicable gaps.
The Court concluded that it would have been within its rights to end its analysis after finding that the fetuses were not persons capable of being killed, as defined under Section 214 of the Penal Code. The Court also determined that the accused had not committed murder because the evidence was inadequate and their alleged victims were not capable of being killed.