Republic v Leraran & another (Criminal Case E4188 of 2020) [2023] KEMC 16 (KLR)

The court found that the 1st Accused held meetings with the whistleblower and 'Rose', agreed a price of KShs. 300,000 for a baby, and ensured the handover of a baby to a person he knew was not a representative of Imani Children Home. An oral agreement materialized and was acted on, satisfying the ingredient of agreement by more than one person to commit the offence. The three meetings were held without the knowledge of the 2nd Accused, who was not mentioned in any discussion, so she benefited from the doubt.

Relying on the BBC documentary corroborated by PW4's timelines, the court found the 1st Accused abused his position as medical social worker, took advantage of the vulnerability of abandoned babies, fraudulently represented that the recipients were representatives of Imani Children Home, and transferred the three babies for payment. Since the offence is committed by receiving, transferring or transporting a person for exploitation through abuse of power or position of vulnerability, his single acts in the chain sufficed. The 2nd Accused's only proven act - retrieving three files - could not sustain a conviction.

The court emphasized that before relying on video evidence it must be satisfied of its trustworthiness. The certificate of electronic evidence under section 65(a) of the Evidence Act, the producer's detailed testimony on dates and times of the meetings, the 1st Accused's positive identification of himself in the three meetings, and PW4's corroboration that the three babies were released on 12th May 2020 combined to establish the reliability of the recording and its context.

The court weighed the defence explanation that the money discussed was an estimate of adoption costs and that the money he took was for the whistleblower. Taking all circumstances into account, this was 'possible but not probable'. His approbation and reprobation - denying assertions he was clearly heard making, and inconsistent identification of the woman he met - placed him in the category of a doubtful, unreliable witness per Joseph Ndungu Kimanyi v Republic.

As medical social workers, both accused had charge or care of the abandoned children. The 1st Accused sold one baby and fraudulently handed over all three to a stranger, concealing information and forging referral forms. The 2nd Accused, as in-charge of the social worker office, failed to notify the Children's Office, failed to ensure lawful transition to Imani Children Home, and failed in record keeping. The children were thereby rendered victims of human trafficking, satisfying the ingredients of neglect under section 127(1)(b) of the Children Act, 2001 (corresponding to section 152(1)(b) of the Children Act, 2022), the children being 'children in need of care and protection' under section 144(o) as victims of human trafficking.