• What the court knows: Couple fought over love messages from another man on wife's phone; the two went to Odhiambo's home.
• No evidence on where the children spent the night; no postmortem report on second body, if there was any.
A man accused of killing his two sons after a fight with his wife over an affair has been found not guilty.
The court ruled one of Philip Wandera's sons is alive and the prosecution did not prove its case against him.
Wandera quarrelled with his wife after he found love messages from another man on her phone.
Justice Kiarie Waweru said the prosecution failed to call some material witnesses, it would appear deliberately, even after the court issued summonses.
He said there was no evidence that the prosecution even made an attempt to avail the witnesses.
Waweru said the court was treated to childish antics by the prosecution. When the court declined to allow an adjournment, the prosecution counsel sat down in a huff and purported to leave the case to the court, he said.
“I need not say any more but this is rudeness not expected from a learned counsel," Justice Waweru ruled.
"From the foregoing analysis of the evidence on record, I find that the prosecution has failed to prove its case against the accused in count one as well.
"I acquit him on both counts and set him free unless if otherwise lawfully held.”
Wandera was accused of killing his sons in August 2014 in Muramia village, Busia county.
The prosecution said the accused clashed with his wife after he found love messages on her phone, and killed their two children.
The court said the genesis of the case was the effect of modern technology, where a spouse can cheat on the partner, even where they are living together.
The court heard that Wandera and his wife had travelled home from Nairobi, where they stay. He borrowed his wife’s phone to send some money. When he was deleting the M-Pesa messages of the transactions he had made, he stumbled on some love messages between his wife and another man.
A quarrel broke out and the two went to the house of Agnes Odhiambo, who calmed them down. Wandera, however, refused to go back to his house with his wife.
Justice Waweru said these facts were undisputed by both the defence and the prosecution.
Odhiambo testified that she agreed to let Wandera's wife spend the night at her house and the accused went home alone.
The prosecution alleged that one Dennis, who followed Wandera, was told that the accused would take the couple's children to spend the night at their grandmother’s.
“This evidence is inadmissible hearsay. Dennis was not called to testify,” Waweru said.
Odhiambo testified that at about 11 pm, Wandera called her on the phone and told her that he had completed his mission with the children and the one left was his. He told her they would find his trousers, wallet and two phones along Suo River.
Justice Waweru said the inference to be drawn from this evidence was that Wandera had killed his children and was about to commit suicide.
Wandera conceded that there was a disagreement with his wife over the love messages. He said the wife went away with the children and denied killing them.
Wandera said after he fought with his wife, he went and told Odhiambo what had happened. His wife left with the children, he said.
The judge observed that there was no independent evidence to show where the children spent that night.
From Odhiambo's evidence, we are aware that one of the accused’s son is alive, Justice Waweru ruled. In any case, no postmortem report in his respect was produced, he said.
The judge said the question that crosses one’s mind is what prompted the investigating officer and the Office of the Director of Public Prosecutions to charge the accused with an offence of murder in respect of a person who was alive.
“Odhiambo testified that one son was taken home the following day by a neighbour. If this is not a case of malicious prosecution then this is recklessness of the highest order. I accordingly acquit the accused in count two,” Waweru ruled.
The court asked why the investigating officer did not probe Odhiambo's allegations further.
It noted that the onus of proving every allegation which the prosecution intends the court to rely on is on the prosecution.
The court cannot be left to speculate. I would have expected evidence from the service provider of the network allegedly used by the accused to call Odhiambo. This was however not forthcoming from the prosecution, Waweru ruled.
Dr Dickson Muchana testified that Norbert Okoth died of asphyxia secondary to drowning. Apart from the cause of the death, there was no evidence that connected the accused to the offence other than what the prosecution expected the court to speculate, Justice Waweru ruled.
Edited by Josephine M. Mayuya