State lawyers have urged the high court to reject Sainabou Mbye and Co application to be freed.

Sainabou Mbye, Cherno Mbye and Kimbly Dambelly have all asked the court to be freed as they made a ‘no case to answer’. 

They said the prosecution failed to prove their crime as alleged.

However, the prosecution said it has proven beyond reasonable doubt that the three accused persons had committed an unlawful offence over the death of baby Muhammad. 

In proving whether or not Sainabou, Cherno and Kibily committed an unlawful act or omission, the prosecution said evidence is led to show that the deceased child (Baby Muhammed) was in the same vehicle with the three accused persons together with Sainabou’s two daughters.

In the vehicle, the prosecution said evidence is led to show Sainabou and Cherno sat in the front seats of the vehicle while Kibily was with the deceased child and two of Sainabou’s daughters at the back seat. 

The prosecution said evidence was led to show that the vehicle belongs to Sainabou Mbye. Also, the prosecution said evidence is led to show that Cherno Mbye was the driver of the vehicle.

Prosecution stated that evidence is lead that all of the accused persons alighted from the vehicle to assist the mini-truck to offload the household materials and move them into the new apartment, adding that these pieces of evidence are contained in the cautionary statements of the Accused Persons which are marked as Exhibits P1, P3 and P5.

The prosecution also stated that it is clear from the evidence that all three children including the Deceased (Baby Muhammed) were in the charge and under the care of Sainabou Mbye and Cherno Mbye. 

The prosecution stated that Sainabou Mbye indicated in her cautionary statement to the police said that the deceased child was always with Cherno Mbye and that she alighted from the vehicle with the impression that the Deceased was with Cherno. 

The prosecution submitted tha Sainabou’s two daughters were at the rear of the vehicle with the deceased and Kibily Dembelly. 

The deceased was also her nephew. The prosecution held that the deceased child was under the care of Sainabou Mbye and at the material time she was aware that the deceased was in her car with her two daughters. 

It is the position of the prosecution that both Sainabou and Cherno stood in the position of parent to the deceased at the time. 

The prosecution pointed out that both Sainabou and Cherno admitted to this responsibility in their respective cautionary statements.

In connection to Kibily Dembelly, the prosecution submitted that he was also in charge of the deceased. 

The evidence showed that he was in the vehicle to assist Sainabou and Cherno to offload their house materials from the mini-truck to their new residence in Brusubi. 

He (Kibily) was sitting at the back of the vehicle together with the deceased and the daughters of Sainabou Mbye

The prosecution submitted that the accused persons were under a duty to ensure that the life or health of the three children including the deceased was protected. 

The prosecution further submitted that the accused persons were under obligation to ensure that they checked and make sure that the deceased and the other children had alighted from the vehicle safely because they (the three accused persons) alighted from the vehicle. 

The prosecution held that the accused persons ought to have averted their minds that the deceased was a two-year-old who could barely take care of himself or alight from the vehicle without the assistance of an adult. 

It was the submission of the prosecution that the three accused persons breached that duty by failing to ensure the deceased, a two-year-old, had been taken from the vehicle before closing the doors. 

The prosecution held that this was a clear omission on the part of Sainabou Mbye and Cherno Mbye. 

The prosecution submitted that it is certainly foreseeable that leaving a child of tender age in a vehicle that has its windows closed could cause serious injury or health hazards or even death. 

The prosecution said it is noted that a reasonable person would have also known that leaving a child of two years would need the assistance of an adult to alight from a vehicle.

The prosecution in their brief stated that prosecution witness six Fatou Ngone Mbye, who is the mother of the deceased, revealed that the deceased is dead. 

Her evidence, according to the prosecution, is consistent to the extent that it has not been controverted, discredited or challenged by the defence under cross-examination. 

The prosecution said there were no inconsistencies in her statement in court and at the police station. 

The prosecution stated that all the accused persons in their cautionary statements confirm the death of the deceased child. 

The prosecution held that it is an indisputable fact that the deceased had died. 

The prosecution held that the cause of death has already been established as a prima facie case is made out. 

It is the position of the prosecution that the evidence clearly showed that the deceased died as a result of being locked in a vehicle which caused him to suffer from a lack of oxygen.

They urged the court to refuse the application of the accused persons.

Reporting by Adama Makasuba