The facts of this case were that Georgina Auma had gone to fetch water leaving her three children, aged between 9 1⁄2 years and 1 month, at home. When she returned half an hour later she found her 1-month-old baby missing. She immediately informed her husband, and the father of the missing baby, and they both commenced a search. Their search led them to the road leading to “Rabuor trading centre” where they were informed that two women had been spotted carrying a baby. They soon thereafter encountered two women (Christine Atieno Ochieng and Lilian Akinyi alias Salome, the defandants). They saw them entered a maize plantation only to leave the baby in the plantation. The two women then emerged and walked towards the trading centre, where they were apprehended. The baby was retrieved from the plantation and returned to its parents.
Kenya
1st Instance:
Court: Chief Magistrates Court
Location: Kisumu
Date of decision: 12 July 2006
Reference: Criminal Case Number 537 of 2006
2nd Instance:
Court: High Court at Kisumu
Location: Kisumu
Date of decision: 18 July 2007
Reference: Christine Atieno Ochieng & Another v Republic, Criminal Appeal 139 of 2006 [2007]
At first instance the defendants were convicted on their own plea of guilty and sentenced to serve 7 years imprisonment each.
Legal Reasoning and Appelate Decision as the other defendant.
Section 174(1)(a) of the Penal Code:
Section 174. (1) Any person who, with intent to deprive any parent, guardian or other person who has the lawful care or charge of a child under the age of fourteen years of the possession of the child –
(a) forcibly or fraudulently takes or entices away or detains the child; or
(b) receives or harbours the child, knowing it to have been so taken or enticed away or detained,
is guilty of a felony and is liable to imprisonment for seven years.
(2) It is a defence to a charge of any offences defined in this section to prove that the accused claimed in good faith a right to possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father.
2nd instance:
Court: High Court at Kisumu
Location: Kisumu
Date of decision: 18 July 2007
The defendants appealed the first instance decision on the grounds that there was insufficient evidence to support the conviction and that their guilty plea was involuntary. They also contended that the sentence was “harsh and excessive”. Counsel for the State conceded that the sentence handed down was the maximum available and that the defendants’ admission of guilt and pleas for leniency should have been taken into account. He did note, however, that the defendants were precluded from challenging their convictions.
The Court noted that the “legislature had good reason to provide a maximum sentence of seven years for child thieves” and that child stealing was on the rise and thus deterrence was important. The Court conceded that the sentence was rather successive and thus the appeal succeeded in respect of the sentence only. The term of imprisonment for both defendants was reduced to five years.
Section 174(1)(a) of the Penal Code:
Section 174. (1) Any person who, with intent to deprive any parent, guardian or other person who has the lawful care or charge of a child under the age of fourteen years of the possession of the child –
(a) forcibly or fraudulently takes or entices away or detains the child; or
(b) receives or harbours the child, knowing it to have been so taken or enticed away or detained,
is guilty of a felony and is liable to imprisonment for seven years.
(2) It is a defence to a charge of any offences defined in this section to prove that the accused claimed in good faith a right to possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father.
High Court at Kisumu
2nd Instance: Christine Atieno Ochieng & Another v Republic, Criminal Appeal 139 of 2006 [2007]
Whilst this case, on the limited facts, cannot be strictly categorised as child trafficking (because the intended exploitation was unclear), it is significant because it illustrates the emerging issue of child trafficking in Kenya. The Court relevantly noted, “the offence of child stealing has become prevalent in Kenya in the last few years and that it forms a disturbing feature of the emerging crime wave in our country particularly because of its connection with child trafficking and ritual killings.”