A man has been found guilty of murdering a six-year-old girl after DNA evidence linked him to seminal material recovered from the child’s clothing and anal swab, with the High Court ruling that the forensic findings connected him to the sexual assault that preceded her death.
Justice Alexander Muasya Muteti of the Milimani High Court found David Lemoiya Saningoi guilty of murdering Vivian Bisieri Omwenga, whose body was discovered near New Light Bridge in the Nyando area of Njiru Sub-County, Nairobi, on August 13, 2022.
The court heard that Vivian disappeared the previous day after leaving home at about 11am to buy biscuits with Sh5 given to her by her father, Dancan Omwenga Oteri. When she failed to return, her father searched for her and reported her disappearance to the police and local administration. The following morning, the family learnt that a child’s body had been found near the bridge, about 500 metres from their home. Her father identified her through the clothes she had worn the previous day.
The body was partly inside a sack, her pink underwear lay separately on the ground, and her grey skin-tight clothing had been removed. Oteri told the court that he knew Saningoi, a neighbour who sold charcoal, and recalled seeing him entering his house on the night Vivian disappeared. However, during cross-examination, he admitted that neither of his statements to police identified Saningoi as a suspect or placed him among the people he encountered while searching for his daughter.
Vivian’s mother, Christine Nyabei Anyona, also testified that she joined the search on the evening of August 12, 2022, before identifying her daughter’s body the following morning. She told the court that she knew Saningoi as a maize, charcoal and pancake vendor who had moved into a neighbouring plot about six months before the incident. Anyona said Vivian knew Saningoi and sometimes asked him for money to buy maize. She, however, denied having a sexual relationship with him after the accused claimed they had been secretly involved.
Saningoi relied on the alleged relationship to explain how his DNA could have ended up on the child’s clothing, suggesting that biological material might have been transferred when the mother washed her clothes together with those of Vivian.
The prosecution’s case was strengthened by DNA analysis conducted by Government Analyst Henry Kiptoo Sang, who examined the child’s clothing and biological samples alongside a buccal swab obtained from Saningoi. The analyst detected slight seminal stains on Vivian’s grey skin-tight clothing and an anal swab. DNA analysis produced mixed profiles, one matching the child and the other matching Saningoi.
The judge rejected the accused’s explanation that the DNA could have been transferred through the washing of clothes, noting that the theory did not account for the presence of the biological material on the anal swab.
“I therefore find that the DNA evidence establishes a strong and direct biological connection between the accused and the sexual assault suffered by Vivian,” Justice Muteti ruled.
The victim’s family, through lawyer Oscar Anyona, urged the court to convict Saningoi, arguing that the DNA evidence, medical findings and surrounding circumstances established his guilt beyond reasonable doubt. The family maintained that the accused’s claim of a relationship with the six-year-old mother was an afterthought that could not explain the presence of his DNA on the child’s clothing and anal swab. It also argued that the evidence formed a complete chain pointing to his guilt.
Defence counsel Isoe challenged the prosecution’s reliance on circumstantial evidence, arguing that the DNA findings did not establish when or how the biological material was deposited or prove that it resulted from sexual contact between Saningoi and the child. The defence also pointed to investigative gaps, including the failure to obtain available mobile-phone data, interview people who could verify the accused’s movements and investigate alternative explanations. Counsel argued that the prosecution had failed to prove beyond reasonable doubt that Saningoi caused the death with malice aforethought.
Justice Muteti acknowledged the investigating officer’s failure to verify the accused’s movements on the day six-year-old Vivian disappeared but ruled that the omission was not fatal to the prosecution’s case. The judge found that the DNA evidence, medical findings and surrounding circumstances formed a chain of evidence pointing to Saningoi’s guilt. He also rejected the defence’s explanation of the DNA evidence, finding that it did not account for the biological material recovered from the child’s anal swab.
A post-mortem examination conducted by Dr David Ongechi Atandi revealed five abrasions on Vivian’s neck, multiple tears and lacerations around the vaginal opening, a perforated hymen and bruising of the anal canal. The pathologist concluded that the child died from asphyxia, with findings consistent with sexual assault and water immersion.
Justice Muteti ruled that the sexual assault followed by the killing demonstrated malice aforethought, an essential element of murder.
“By sexually assaulting the deceased before killing her the accused acted with malice aforethought and is therefore found to be guilty of murder,” the judge ruled.
Saningoi was consequently found guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code.
