1) Eric Mutuma Maingi is charged with murder contrary to section 203 as read with section 204 of the Penal Code.
2) The particulars are that on the night of 6th & 7th December, 2020, in Njoro Subcounty Nakuru County , jointly with others not before court he murdered Eunice Njeri Muthoni.
3) He took plea on 24/3/2021. He pleaded not guilty. The prosecution was represented by Ms. Murunga, and Mr. Mugambi appeared for the accused. The court was told prosecution would call 21 witnesses.
4) PW1 the mother to Eunice Njeri Muthoni (deceased) Elizabeth Muthami Nyawira told the court about the happenings of 6/12/2020. She told the court how Njeri called her on a different phone and requested her to call her on her own phone.
5) She said when she called Njeri’s phone, it was answered by a man who told her that he was waiting for the owner of the phone to call him so that he would tell her where he was. He told her where he was. She said she would not recall now where he said he was but she rang Njeri and told her where that person who had her phone was. She also said she told Njeri to go there.
6) She said she asked Njeri why she had not made the call herself. Njeri told her that at that time she did not have her phone. That she had dropped her phone when she was buying medicine and that the settings on her phone were such that calls would be diverted to her (PW1’s) phone.
7) Shortly afterwards Njeri called her and told her that she had gone and collected her phone from that person and had to pay him Kshs. 200.
8) That Njeri told her she would not come home because they were starting exam’s that Monday.
9) She testified further how on the Tuesday she learnt about Njeri’s death, and she travelled to Nakuru to where Njeri lived. She was taken to the mortuary and later attended the postmortem. She added that Njeri was a student. She was living with her friends one of whom was Diana (PW2) she wondered why Diana did not tell her that Njeri was missing. This is because she learnt about Njeri’s death through phone calls of other persons who were looking for her because she was mteja and had not shown up for her exams.
10) She added that her daughter used to cry a lot. That there was a time she had a boyfriend and they broke up. She asked her whether she was pregnant, and she said no. She testified that she encouraged her not to worry as she would get another person.
11) On cross-examination she told the court she could not remember the name of the person who called her number to speak to Njeri - but she said the police said it was one Tamar . She also said that the person who had found Njeri’s phone was asking for Kshs. 3,000. She said she was calling Njeri with Njeri’s number which she could not recall.
12) She also said that the call she received on 9/12/2020 was from a girl who said she was in Nairobi.
13) She said while Njeri was in college she had some issues and she - PW1 had taken her for counseling. She said she was told it was about her relationship with her boyfriend. She said at the postmortem she was told that her daughter was strangled.
14) There was controversy around the testimony of PW2 - Diana Njeri Githoni. The defence alleged that she was in a marital relationship with the accused and could not be compelled to testify against the accused person. The state submitted that there was no marriage and that the witness had come to testify voluntarily. The objection was overruled because other than the allegation of marriage - nothing was placed before court to prove the same.
15) PW2 Diana Njeri Githoni testified that both the accused and the deceased were known to her. She and the deceased were classmates having met 2018 in Egerton University. She met the accused in 2015 and they began a relationship between 2016 – 2017.
16) She gave the history of these relation relationships and how they were tied to this case. She told the court that when she came to Egerton she was living alone at Jacaranda, and the deceased who she referred to as Eunice was living at the school hostel. She later moved to the block where Diana and her friend Tarmar lived. According to Diana, Eunice moved because she did not have friends where she was living before. When she moved to their block they began to cook together, and to share house chores. At the time Erick the accused would visit her (Diana) once in a while.
17) Diana conceived Eric’s child in early 2020. When Corona came and school stopped, she decided not to go home because she did not want her parents to know she was pregnant. She remained with Njeri. She decided to move to a bigger house to a place called Ngondu. Eric also came because her due date was approaching - so she was now living with Eric. Soon thereafter Eunice also moved from her place in Jacaranda and came to live with her so they were now living together Diana , Eunice and Eric.
18) At some point Eunice moved out into what was a vacant bedsitter apartment at Ngondu where they were living.
19) By 4/12/2020, Diana already had her baby. On that date she was attending her uncle’s funeral in Olkalau. She was to go with Eunice but it is around this time that Eunice had lost her phone and so she opted to remain behind. Diana and Tarmac went for the Funeral.
20) According to Diana when she came back she noted that Eunice was uncomfortable. The next day 5/12/2020 Eunice told her that Eric had made sexual advances to her when she had left for the funeral.
21) On hearing this, Diana decided to call Eric who had left for Nakuru . Apparently, Diana and Eric shared phones and at that time Diana sim’s card was in Eric’s phone so, she borrowed Njeri’s phone and rang Eric. Her testimony was that Eric laughed it off and said he had done nothing like that. Diana who had gone outside the house to call Eric came back inside and told Njeri that they would settle the issue when Eric came back.
22) However, Diana was affected by these allegations and that she told Njeri to cook from her own house. That she would call Njeri to came back as soon as Eric returned because Eric would not deny the issue in her presence.
23) When Eric came back, Diana called Njeri, and asked Eric about the issue. Diana testified that Eric denied the issue saying that those were allegations. He became angry and things almost turned physical. She sent Njeri away telling her that they would settle the issue the later.
24) Diana testified that the 6/12/2020 was her birthday. Tamar collected the cooking gas from Njeri’s house and went to make pancakes. When breakfast was ready Njeri did not come to eat and Diana sent for her. She came, ate breakfast, wished Diana happy birthday and left.
25) Diana told the court that Njeri came for lunch. Tamar was also present. Around this time Eric wanted to leave for Nakuru – but Diana did not want him to leave before they settled the issue. She hid his phone so that he would not leave .
However, Eric took the Kabambe phone and left her in the bedroom. When she saw that he was l, she went to the living room and left Tamar with her baby and followed Eric outside. She said she had heard Eric calling Njeri outside. When she followed them outside, she met Njeri coming back. She told the court, she took Njeri and they went to Eric, and she told Njeri to remind Eric of what he had done. Diana told the court that Njeri told Eric that he knew the truth, that she had spoken her truth. Eric left while she and Njeri went back inside.
26) She testified that she went back to the house crying and went directly to her bedroom. That Tamar came to check on her and she told Tamar what was going on. She then took the phone and went outside to call Eric using the line for the phone he had carried with him. She demanded from him that he tell her the truth, or she would tell his mother. She told the court that Eric admitted that he had made some comments to Njeri asking her ‘kama hakuambiwa achunge bwana’ She demanded to know from him why he had been lying - he apologized and told her they would settle later.
27) She went back inside and the three herself, Tamar and Njeri were having lunch. Njeri texted her (Diana) asking that they talk outside. When they went outside Njeri asked Diana whether she had done wrong to report to her what had transpired in her absence. Diana told the court she told her that is what a true friend would do. She also told the court that that was the final exam week That Njeri told her she was feeling overwhelmed because of the situation and that . she wanted to apply for special exams. Diana told the court that she told Njeri there was no need to be stressed and that it was best that she sit her exams and finish school. Njeri left for house as Diana went back inside. Two friends Juliet and Kemunto came to visit. Njeri came later asking for her earphones. Asked where she was going, she simply stated - somewhere. Tamar asked her for her house keys so that she could pick the big sufuria for preparing supper. Njeri handed over her keys and left. They stayed with the friends till 8:00pm. When the two left. She and Tamar discussed the Njeri Eric Issue. Diana testified that she told Tamar that she thought Njeri was speaking the truth and that Eric was defensive.
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29) Diana further told the court that Eric came back home after curfew time - 1000pm and he was drunk. Tamar left. There was still tension. She went to sleep. She gave him back his phone. He stepped out to make a phone call as there was no network on in the house. She said she never heard him come to the bed. That she did not know whether he slept in the house but when she woke up, he was in the bed.
30) She told the court that when she woke up, she began to make breakfast. She called Njeri on phone but it was not going through. She asked Tamar who told her that she had also tried but the call to Njeri’s phone was not going through.
31) Diana testified that she and Eric discussed the issue. He told her that when Njeri was playing with the baby she bent to pick the baby displaying her breasts and that to him was seduction. Diana told the court she told him she did not want to hear the story again.
32) When Njeri did not show up for breakfast or pick her phone she got the keys from Tamar and went to her house – Njeri was not in. She testified that she told Tamar that Njeri had gone home because she Njeri, had told her she wanted to apply for special exams.
33) Diana testified further that on 8/12/2020 they had a group assignment: her, Njeri, Mercy and another. That Njeri and her had been sent the question by the lecturer. She wanted to do the assignment but was alarmed by an alert she found on WhatsApp about a missing student at Egerton. She testified that she went to Tamar and told her that they should call a few of Njeri’s friends and her mum to see if Njeri was at home. She told Tamar to call Njeri’s mother on her ( Tamar’s phone) because she , Diana did not want to raise alarm as it was possible Njeri could be with her friends. When Njeri’s mum was called she said Njeri was not at home. Diana said she called a mutual friend by the name Caleb and told him she did not know where Njeri was. She said Caleb told her that they wait till the next day as they had an exam at 8:00am.
34) Diana told the court that when went to sit her exam on 9/12/2020 Njeri was not there. She told her friends that they needed to report that Njeri was missing .
35) She testified that on her way home from school, near her house she overheard one man and two women talking about a dead body found in the river. She decided to go to check on school face book/WhatsApp groups to see if such a matter had been posted. When she found nothing, she decided to go and ask the man she had overheard talking to the two women. She found the man. She asked him – and he told her it was a lady. She asked him how the lady looked like , he told her that she had black and white braids and that people were saying that the lady had thrown herself into the river.
Diana told the court that she immediately called Eric and told him that Njeri had committed suicide. It was Diana’s further evidence that she called other friends and told them what she had heard about Njeri.
36) When she got to the house the care taker Laban, heard the commotion in their house and he went and told them that the body that had been picked was in grey tights, bluish jumper . That there was a bag and sports shoes on the side.
37) She testified that she sent Eric, Tamar, Emma, Saddam and Caretaker Laban to go and confirm at the Morgue whether it was Njeri, while she remained with her baby in the house.
38) Diana testified further that Eric, Tamar, Emma, Saddam and Caretaker Laban came back an hour later and confirmed that the body that was recovered was that of Njeri. The College security called for Njeri’s documents and told her not to tell Njeri’s mother as the school would call her. She was also called by the school security to go and record a statement. She told the court that Eric told her not to mention the issue of the alleged sexual advances he had made to Njeri . Later police officers from Njoro Police station came and searched their house and told them to go record statements.
She told the court that on 11/12/2020 she learnt from Eric that the postmortem result showed that Njeri had been strangled. On Friday Eric left because he had a VISA Interview.
Diana told the court that she suspected Eric to have done the thing because according to her he was very angry with Njeri over the issue and that on the material night he came home very drunk. - and she even asked Tamar if she thought Eric could do such a thing. She testified that Tamar ‘s response was that she did not think that Eric could do such a thing. She testified that she, Tamar and Eric were arrested in February, 2021 over the death of Njeri and they were held in custody for 14 days. She recorded a further statement on 6/12/2020 regarding her sim card for no. 0700006641 which she had inserted in Eric’s phone make Infinix explaining that she had done so to use the internet. She said Eric had left with the phone that had both their sim cards.
39) On cross-exam by Mr. Mugambi, she told the court that she met Eric towards the end of 2015. That she was in 1st year when Eric was in 4th year and that Tamar joined university the year after her. She said she joined Njeri’s class in 2018. That Eric joined their circle in 2020 . That at the time she met Eric at Eric he did not know Njeri.
40) She testified that she was friends with Njeri and Tamar because they lived in same apartments but separately and shared meals by contributing money for food and cooking together and sharing meals. That Eric joined their circle in July, 2020, and her child was born on 13/9/2020. That her relationship with Eric was good, and her child was named after Eric’s father. She confirmed that they were not formally married.
41) Asked about the events of 4/12/2020 - she said she went to the funeral with Tamar leaving Eric with the baby – but when she came home about 800pm she found Njeri in her house – She said she did not Know when Njeri joined them. She said that Njeri appeared uncomfortable, was not as talkative as she normally was . She did not report anything untoward that evening, and after supper Njeri and Tamar left for their houses. She confirmed that Eric did not go out that day.
42) That on 5/12/2020 Njeri had breakfast with them and it is on the afternoon that she told her about the advances Eric had made to her. Diana told the court that Njeri told her that Eric had pulled her towards the bedroom while asking her whether she had not been told to take care of the husband. That she told Eric she did not want that. That she did not tell her how she escaped from Eric’s hands.
That night she cooked dinner at her place and Diana went to collect it from there.
That night Eric came home about 1000 pm drunk- he used to come home late.
43) That on 6/12/2020 Diana had breakfast with Tamar, Njeri was absent and Diana sent for her as she was aware of the issue between Njeri and Eric and Njeri came for breakfast past 1000am. When Njeri came Eric was in the bedroom .Diana said they did not meet. That Njeri left and came later for lunch by which time Eric had left. She stayed and left between 4 and 500pm. She did not say exactly where she was going. She just said she was going. She just said she was going and that is last time she saw Njeri alive.
44) She testified further that Eric had left the house at 2.00pm and lunch was between 3.00-4.00pm. That before Eric left, he called Njeri outside and Diana joined them. That when Njeri it was two hours after Eric had left. She did not know where either of them went
45) Eric came back after 10:00pm. She said this was not unusual. He found her with Tamara who left for her house while she left Eric in the sitting room and went to sleep while in bed, she heard the door being opened but she did not see him leave. She said she fell asleep about 11:00pm and did not hear him get into bed but found him in bed went to her in the morning. That the baby usually slept in the middle . She also said that it is the baby who woke her up between 3- 4.00am and that is when she saw Eric.
46) On further cross-exam she told the court that when Eric stopped out, he was on phone. He was speaking on the Infinix phone. She explained that the Infinix phone had 2 lines - one hers the other Eric’s. That the phone was in her possession the whole day - and when Eric came home after 1000pm , she saw him step out talking on this phone. She said she did not hear who he was talking to. When it was put to her that no calls were made from the Infinix pone that night – she said she did not know.
47) On further cross-exam her statement was put to her and she confirmed that Njeri told her she was stressed and could not concentrate enough to sit the final exams. That Diana told her that it was she who ought to have been stressed, cautioned that Njeri risked going back to depression, and convinced her not postpone sitting the exam.
48) She confirmed that in her statement she told the police that when the story of the missing person broke out, she started scrolling the internet to see whether such a story was tending. She found none. She also stated that when she heard that the body that was found was that of a girl with black and white braids, she concluded that it was Njeri who had committed suicide She confirmed that she was aware that Njeri suffered from depression due to issues related to trauma she suffered from mistreatment by the aunt who had raised her. That she was the one who called the mother of Njeri in 2019 when she noticed that Njeri was crying a lot. Njeri’s mother intervened and Njeri was able to start therapy.
49) Dian further told the court that Njeri was in the process of healing but was still erratic in her behavior, she was moody, and would sometimes keep to herself and even skipped a CAT (Continuous Assessment Test)
50) She told the court that there was no problem between here and Njeri over his boyfriend issue - that she told Njeri to cook in her house because she knew Njeri would be uncomfortable around Eric, that she Diana had no reason to be jealous because Njeri had not shown any interest in Eric. She said she could not tell whether Eric had any reason to hurt Njeri.
51) Tamar Wambora Njeru was PW3. She told the court that she knew Diana 2017, Njeri in in October, 2018 and Eric in 2019.
52) According to her on 4/12/2020 when they left for Diana’s uncle’s funeral, they left Eric and Njeri in the house. That they left Njeri behind because of the baby. When they returned that evening, they had supper together as usual and everything was ok.
53) She told the court that on 5/12/2020 around 12 noon her friends Boaz, Kirimi and Juliet came and they left for the bouncing castles leaving behind Diana Eric and Njeri. at home. They came back around 6.00pm. That day unlike other days Njeri cooked dinner at her place – she found it unusual because they normally cooked and Diana’s place. She said she found this odd.
54) On 6th December 2020 it was Diana’s birthday. She cooked pancakes for Diana. On checking her phone, she saw that Njeri had texted her asking for her milk. She did not take the milk but went to Njeri’s house. She testified that she noticed that Njeri had opened her anxiety pills, something she had not done in a long time. Upon going to Diana’s, she told her about Njeri’s anxiety pills. Njeri joined them for breakfast. Eric was in the bedroom
55) Later in the day Tamara and Njeri went and bought pork for lunch which Tamara cooked. In the process Diana went outside and came back crying. She was out there with Eric. Njeri followed her to the bedroom. They were in there for a while. Njeri came out. Tamara went in and spoke to Diana who told her about what had happened on the 4th December 2020. That Eric had tried to approach Njeri.
56) Tamara said that Eric had a conversation with Njeri outside, and then Eric left. She said Njeri left later at about 4:30pm. She identified the bag that Njeri had when she left.
57) On 9th December 2020 she leant that Njeri had died. She, was in the house with Eric when Diana called and told them about Njeri’s death. She later went to the morgue with the others and confirmed that it was Njeri. She said that after the postmortem Eric told them that Njeri had ben strangled.
58) She told the court that on the 4th of December 2020. She and Diana left the baby with Eric. At that time. Uh, Eunice had lost her phone. That on the 6th of December 2020 she went to fetch Njeri from her house and found that she had opened her anxiety pills bottle .They had breakfast together and Eric was around. But he remained in the bedroom, and Njeri came in at around 10:00 AM. He told the court that she was aware Njeri was having some mental health issues. And that she had been going for therapy from September 2020.
59) He said that around 2:30 PM. Eric left the house. and had a conversation for about 15 minutes outside the house with Njeri. That Diana joined them outside and stayed for about 5 minutes. Eric did not come back to the house. She confirmed that it was her Diana, Kimmie and Juliet who were the last persons to be with Njeri before she died. Confirmed that it was not in her statement that Eric told her that Njeri had been strangled.
60) PW4 Duncan Kimani Wambua, told the court that. He was a farmer in Njoro. On the 7th of December 2020 around 9:00 AM. He went to irrigate vegetables using a pump and pipes. he would pump the water from the nearby river. He went into a nearby thicket to relieve himself. Before he could start, he saw the body of a person in the water. He saw hair floating in the water. He immediately decided to go and inform his father, who was a member of Nyumba Kumi. On his way, he met Thuku regret vegetables and drew his attention to what he had seen. His father. Joseph Nthiwa Wambua came to this scene. And PW4 left when his father was calling the chief. He identified the black bag he had seen at the scene. He said his home was about 100 meters from the scene and if anyone had screamed, they would have heard from home. Cross examination, he said the body was in the liver, the face was in the water. And the body was floating. He said the only thing he saw was the bag and did not check the same because he was in shock.
61) PW5 Stephen Mwangi Maina assistant Chief Kikapu sub location, the call from joseph Wambua of Nyumba kumi telling him that there had been an incident at the river near his home. He accompanied Joseph to the scene, which was at River Subuku around 30 meters from the road. He saw a monkey bag, an empty plastic juice .bottle and an empty bottle of Napoleon spirits. There was also one black sports shoe. He rang the officer commanding Station Njoro. 45 minutes later, the police came. The body was removed from the river. But no one from the crowd that had formed was able to identify the person. The police took away the body and on 9th February, the assistant chief recorded his statement
62) PW6. NO. 235224.Chief Inspector Simon Kamore Wahome testified that on the 18th February 2020. He was requested By Inspector Kamau meant a scene at Mwariki in Nakuru, which was the rental House of 1 Eric Maingi Mutuma. He went to the scene and 43 photographs which he summarized into eight sets.
63) These were the general view and entrance to the rental house, the general view inside the house, close up views of 872 Safaricom SIM cards found in the bedroom parked in different packages, 6 phones, one Sony digital camera. Three laptops, close-up close-up Views of identification documents of Eric Maingi Mutuma and Diana Njeri Muthomi, general view of Eric Maingi Mutuma, close up views of the right and left hands of Mr. Eric Maingi Mutuma, close up views of healed wounds at the back of both hands of Mr. Eric Maingi Mutuma. He produced the certificate dated 19th November 2021 and the photographs. He also produced 10 photographs at the request of the investigation officer PC Romana Odour related to the homicide scene in Njoro area.
64) On cross examination, he testified that. Eric's house was treated as a scene of crime. That he took the photos of Eric's hands and the instructions of the investigation officer. He was interested in the scars. And that Eric did not tell him where the scars were from. That he knew the offense facing the accused was Murder. But he did not know whether he had been charged with respect to the SIM cards.
65) Pw7 Laban Miatu Maina told the court that he was the care take o the 51 units of rentals, among his tenants were Diana and Eric in room 8 Njeri lived in a bed sitter . on 7h December 2020 he heard that there was a body in the river. He was among the people who went there . he saw the body, the bottles and the bag. On 10th he heard students saying that Njeri had left on the Sunday and had not returned . when they described how she was dressed when she left and her hair, he told them that the description fitted the person he had seen. He accompanied them to the mortuary, he Sadam, Eric , Tamar and others. They were advised by the mortuary attendant that if the body was that of their friend, they were not to call her parents but to leave it to the dean to whom they were to report. It turned out that the body was Njeri’s . They went to her house retrieved her IDs and reported to the dean. A counsellor came to the plot and spoke to the students. That night he received a call from Njeri’s mother. He took her to Njeri’s house , and to the scene where the body was found. He accompanied her to DCI where they were given two officers who accompanied them to, her mortuary where she identified her daughter’s body. He testified that the postmortem revealed that Njeri had been strangled. The body was released to the mother.
66) On 11th December 2020, Diana told him she was feeling insecure and she moved out. He said Eric had already moved out. On cross examination he said that Diana and Eric moved out but when they were moving her things, she was alone.
67) PW8 no. 110280 PC Stephen Ruto told the court that he learnt about the scene of suspected drowning at Ngondu on 7th December 2020 from the OCS Njoro police station. Accompanied by other officers they went to the scene. He said there was a bridge, and down the bridge there was a body of a young lady in the water, in a pool of water, face down. There were two empty bottles, one of minute maid juice, the other Napoleon spirits, black monkey bag. They took the body out. It had no visible bruises. He took photos with his phone.
68) That it was in February 2021 that he learnt that the scene he had visited was not a drowning scene but a murder scene.
69) On cross examination he told the court that when they recovered the body, he did not see any bruises and concluded that it was a drowning case. That he learnt three months later that it was not a drowning scene but a murder scene. He said that he did not attend the postmortem.
70) PW9 Dr. Wangari Wambugu was the pathologist who conduced the postmortem on 10th December 2020 at Egerton University Mortuary.
71) On external examination the body had bruises on the forehead , hemorrhage into the left eye.
72) Internally she found on the neck intra muscular hemorrhage into the superficial and deep muscles of the neck @ the level of the mid neck around the thyroid bruising of the tissues , muscles around the left upper part of the neck , bleeding into the thyroid gland , bleeding in the muscles around the spine in the neck area; lungs did not have excessive fluid, bruising of inner scalp of the forehead . she formed the opinion that cause of death was neck compression due to blunt force trauma to the neck consistent with strangulation resulting from assault.
73) Pw9 Number 76478 Sergeant Joshua Tobolei told the court that he was assigned to investigate a death incident reported as a drowning incident at Njoro . Police station on 10th of December 2020. he accompanied the mother of the deceased, one Elizabeth Muthoni, to the Egerton University Mortuary where she identified the body of Eunice Njeri. He said the postmortem confirmed that the deceased had died due to strangulation and he decided to revisit the scene where the body was collected from, Ngondu, about 5 kilometers from the Egerton University. His view was that the volume of the water was too low for one to drown
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75) PW9 Edwin Kipkemoi Cheruiyot the Liaison Officer, Safaricom PLC, Rift Valley Region. Told the court that he received a court order. To produce call data records. On behalf of the DCI Njoro for mobile numbers 0716938643 and 0112379006, MPESA statements for 0716938643,0700006641 and 0729851379.
76) Formed that mobile number 0729851379 was registered under Eric Maingi. That on the 6th December 2020 at 2101 hours the location was a
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2) The particulars are that on the night of 6th & 7th December, 2020, in Njoro Subcounty Nakuru County , jointly with others not before court he murdered Eunice Njeri Muthoni.
3) He took plea on 24/3/2021. He pleaded not guilty. The prosecution was represented by Ms. Murunga, and Mr. Mugambi appeared for the accused. The court was told prosecution would call 21 witnesses.
4) PW1 the mother to Eunice Njeri Muthoni (deceased) Elizabeth Muthami Nyawira told the court about the happenings of 6/12/2020. She told the court how Njeri called her on a different phone and requested her to call her on her own phone.
5) She said when she called Njeri’s phone, it was answered by a man who told her that he was waiting for the owner of the phone to call him so that he would tell her where he was. He told her where he was. She said she would not recall now where he said he was but she rang Njeri and told her where that person who had her phone was. She also said she told Njeri to go there.
6) She said she asked Njeri why she had not made the call herself. Njeri told her that at that time she did not have her phone. That she had dropped her phone when she was buying medicine and that the settings on her phone were such that calls would be diverted to her (PW1’s) phone.
7) Shortly afterwards Njeri called her and told her that she had gone and collected her phone from that person and had to pay him Kshs. 200.
8) That Njeri told her she would not come home because they were starting exam’s that Monday.
9) She testified further how on the Tuesday she learnt about Njeri’s death, and she travelled to Nakuru to where Njeri lived. She was taken to the mortuary and later attended the postmortem. She added that Njeri was a student. She was living with her friends one of whom was Diana (PW2) she wondered why Diana did not tell her that Njeri was missing. This is because she learnt about Njeri’s death through phone calls of other persons who were looking for her because she was mteja and had not shown up for her exams.
10) She added that her daughter used to cry a lot. That there was a time she had a boyfriend and they broke up. She asked her whether she was pregnant, and she said no. She testified that she encouraged her not to worry as she would get another person.
11) On cross-examination she told the court she could not remember the name of the person who called her number to speak to Njeri - but she said the police said it was one Tamar . She also said that the person who had found Njeri’s phone was asking for Kshs. 3,000. She said she was calling Njeri with Njeri’s number which she could not recall.
12) She also said that the call she received on 9/12/2020 was from a girl who said she was in Nairobi.
13) She said while Njeri was in college she had some issues and she - PW1 had taken her for counseling. She said she was told it was about her relationship with her boyfriend. She said at the postmortem she was told that her daughter was strangled.
14) There was controversy around the testimony of PW2 - Diana Njeri Githoni. The defence alleged that she was in a marital relationship with the accused and could not be compelled to testify against the accused person. The state submitted that there was no marriage and that the witness had come to testify voluntarily. The objection was overruled because other than the allegation of marriage - nothing was placed before court to prove the same.
15) PW2 Diana Njeri Githoni testified that both the accused and the deceased were known to her. She and the deceased were classmates having met 2018 in Egerton University. She met the accused in 2015 and they began a relationship between 2016 – 2017.
16) She gave the history of these relation relationships and how they were tied to this case. She told the court that when she came to Egerton she was living alone at Jacaranda, and the deceased who she referred to as Eunice was living at the school hostel. She later moved to the block where Diana and her friend Tarmar lived. According to Diana, Eunice moved because she did not have friends where she was living before. When she moved to their block they began to cook together, and to share house chores. At the time Erick the accused would visit her (Diana) once in a while.
17) Diana conceived Eric’s child in early 2020. When Corona came and school stopped, she decided not to go home because she did not want her parents to know she was pregnant. She remained with Njeri. She decided to move to a bigger house to a place called Ngondu. Eric also came because her due date was approaching - so she was now living with Eric. Soon thereafter Eunice also moved from her place in Jacaranda and came to live with her so they were now living together Diana , Eunice and Eric.
18) At some point Eunice moved out into what was a vacant bedsitter apartment at Ngondu where they were living.
19) By 4/12/2020, Diana already had her baby. On that date she was attending her uncle’s funeral in Olkalau. She was to go with Eunice but it is around this time that Eunice had lost her phone and so she opted to remain behind. Diana and Tarmac went for the Funeral.
20) According to Diana when she came back she noted that Eunice was uncomfortable. The next day 5/12/2020 Eunice told her that Eric had made sexual advances to her when she had left for the funeral.
21) On hearing this, Diana decided to call Eric who had left for Nakuru . Apparently, Diana and Eric shared phones and at that time Diana sim’s card was in Eric’s phone so, she borrowed Njeri’s phone and rang Eric. Her testimony was that Eric laughed it off and said he had done nothing like that. Diana who had gone outside the house to call Eric came back inside and told Njeri that they would settle the issue when Eric came back.
22) However, Diana was affected by these allegations and that she told Njeri to cook from her own house. That she would call Njeri to came back as soon as Eric returned because Eric would not deny the issue in her presence.
23) When Eric came back, Diana called Njeri, and asked Eric about the issue. Diana testified that Eric denied the issue saying that those were allegations. He became angry and things almost turned physical. She sent Njeri away telling her that they would settle the issue the later.
24) Diana testified that the 6/12/2020 was her birthday. Tamar collected the cooking gas from Njeri’s house and went to make pancakes. When breakfast was ready Njeri did not come to eat and Diana sent for her. She came, ate breakfast, wished Diana happy birthday and left.
25) Diana told the court that Njeri came for lunch. Tamar was also present. Around this time Eric wanted to leave for Nakuru – but Diana did not want him to leave before they settled the issue. She hid his phone so that he would not leave .
However, Eric took the Kabambe phone and left her in the bedroom. When she saw that he was l, she went to the living room and left Tamar with her baby and followed Eric outside. She said she had heard Eric calling Njeri outside. When she followed them outside, she met Njeri coming back. She told the court, she took Njeri and they went to Eric, and she told Njeri to remind Eric of what he had done. Diana told the court that Njeri told Eric that he knew the truth, that she had spoken her truth. Eric left while she and Njeri went back inside.
26) She testified that she went back to the house crying and went directly to her bedroom. That Tamar came to check on her and she told Tamar what was going on. She then took the phone and went outside to call Eric using the line for the phone he had carried with him. She demanded from him that he tell her the truth, or she would tell his mother. She told the court that Eric admitted that he had made some comments to Njeri asking her ‘kama hakuambiwa achunge bwana’ She demanded to know from him why he had been lying - he apologized and told her they would settle later.
27) She went back inside and the three herself, Tamar and Njeri were having lunch. Njeri texted her (Diana) asking that they talk outside. When they went outside Njeri asked Diana whether she had done wrong to report to her what had transpired in her absence. Diana told the court she told her that is what a true friend would do. She also told the court that that was the final exam week That Njeri told her she was feeling overwhelmed because of the situation and that . she wanted to apply for special exams. Diana told the court that she told Njeri there was no need to be stressed and that it was best that she sit her exams and finish school. Njeri left for house as Diana went back inside. Two friends Juliet and Kemunto came to visit. Njeri came later asking for her earphones. Asked where she was going, she simply stated - somewhere. Tamar asked her for her house keys so that she could pick the big sufuria for preparing supper. Njeri handed over her keys and left. They stayed with the friends till 8:00pm. When the two left. She and Tamar discussed the Njeri Eric Issue. Diana testified that she told Tamar that she thought Njeri was speaking the truth and that Eric was defensive.
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29) Diana further told the court that Eric came back home after curfew time - 1000pm and he was drunk. Tamar left. There was still tension. She went to sleep. She gave him back his phone. He stepped out to make a phone call as there was no network on in the house. She said she never heard him come to the bed. That she did not know whether he slept in the house but when she woke up, he was in the bed.
30) She told the court that when she woke up, she began to make breakfast. She called Njeri on phone but it was not going through. She asked Tamar who told her that she had also tried but the call to Njeri’s phone was not going through.
31) Diana testified that she and Eric discussed the issue. He told her that when Njeri was playing with the baby she bent to pick the baby displaying her breasts and that to him was seduction. Diana told the court she told him she did not want to hear the story again.
32) When Njeri did not show up for breakfast or pick her phone she got the keys from Tamar and went to her house – Njeri was not in. She testified that she told Tamar that Njeri had gone home because she Njeri, had told her she wanted to apply for special exams.
33) Diana testified further that on 8/12/2020 they had a group assignment: her, Njeri, Mercy and another. That Njeri and her had been sent the question by the lecturer. She wanted to do the assignment but was alarmed by an alert she found on WhatsApp about a missing student at Egerton. She testified that she went to Tamar and told her that they should call a few of Njeri’s friends and her mum to see if Njeri was at home. She told Tamar to call Njeri’s mother on her ( Tamar’s phone) because she , Diana did not want to raise alarm as it was possible Njeri could be with her friends. When Njeri’s mum was called she said Njeri was not at home. Diana said she called a mutual friend by the name Caleb and told him she did not know where Njeri was. She said Caleb told her that they wait till the next day as they had an exam at 8:00am.
34) Diana told the court that when went to sit her exam on 9/12/2020 Njeri was not there. She told her friends that they needed to report that Njeri was missing .
35) She testified that on her way home from school, near her house she overheard one man and two women talking about a dead body found in the river. She decided to go to check on school face book/WhatsApp groups to see if such a matter had been posted. When she found nothing, she decided to go and ask the man she had overheard talking to the two women. She found the man. She asked him – and he told her it was a lady. She asked him how the lady looked like , he told her that she had black and white braids and that people were saying that the lady had thrown herself into the river.
Diana told the court that she immediately called Eric and told him that Njeri had committed suicide. It was Diana’s further evidence that she called other friends and told them what she had heard about Njeri.
36) When she got to the house the care taker Laban, heard the commotion in their house and he went and told them that the body that had been picked was in grey tights, bluish jumper . That there was a bag and sports shoes on the side.
37) She testified that she sent Eric, Tamar, Emma, Saddam and Caretaker Laban to go and confirm at the Morgue whether it was Njeri, while she remained with her baby in the house.
38) Diana testified further that Eric, Tamar, Emma, Saddam and Caretaker Laban came back an hour later and confirmed that the body that was recovered was that of Njeri. The College security called for Njeri’s documents and told her not to tell Njeri’s mother as the school would call her. She was also called by the school security to go and record a statement. She told the court that Eric told her not to mention the issue of the alleged sexual advances he had made to Njeri . Later police officers from Njoro Police station came and searched their house and told them to go record statements.
She told the court that on 11/12/2020 she learnt from Eric that the postmortem result showed that Njeri had been strangled. On Friday Eric left because he had a VISA Interview.
Diana told the court that she suspected Eric to have done the thing because according to her he was very angry with Njeri over the issue and that on the material night he came home very drunk. - and she even asked Tamar if she thought Eric could do such a thing. She testified that Tamar ‘s response was that she did not think that Eric could do such a thing. She testified that she, Tamar and Eric were arrested in February, 2021 over the death of Njeri and they were held in custody for 14 days. She recorded a further statement on 6/12/2020 regarding her sim card for no. 0700006641 which she had inserted in Eric’s phone make Infinix explaining that she had done so to use the internet. She said Eric had left with the phone that had both their sim cards.
39) On cross-exam by Mr. Mugambi, she told the court that she met Eric towards the end of 2015. That she was in 1st year when Eric was in 4th year and that Tamar joined university the year after her. She said she joined Njeri’s class in 2018. That Eric joined their circle in 2020 . That at the time she met Eric at Eric he did not know Njeri.
40) She testified that she was friends with Njeri and Tamar because they lived in same apartments but separately and shared meals by contributing money for food and cooking together and sharing meals. That Eric joined their circle in July, 2020, and her child was born on 13/9/2020. That her relationship with Eric was good, and her child was named after Eric’s father. She confirmed that they were not formally married.
41) Asked about the events of 4/12/2020 - she said she went to the funeral with Tamar leaving Eric with the baby – but when she came home about 800pm she found Njeri in her house – She said she did not Know when Njeri joined them. She said that Njeri appeared uncomfortable, was not as talkative as she normally was . She did not report anything untoward that evening, and after supper Njeri and Tamar left for their houses. She confirmed that Eric did not go out that day.
42) That on 5/12/2020 Njeri had breakfast with them and it is on the afternoon that she told her about the advances Eric had made to her. Diana told the court that Njeri told her that Eric had pulled her towards the bedroom while asking her whether she had not been told to take care of the husband. That she told Eric she did not want that. That she did not tell her how she escaped from Eric’s hands.
That night she cooked dinner at her place and Diana went to collect it from there.
That night Eric came home about 1000 pm drunk- he used to come home late.
43) That on 6/12/2020 Diana had breakfast with Tamar, Njeri was absent and Diana sent for her as she was aware of the issue between Njeri and Eric and Njeri came for breakfast past 1000am. When Njeri came Eric was in the bedroom .Diana said they did not meet. That Njeri left and came later for lunch by which time Eric had left. She stayed and left between 4 and 500pm. She did not say exactly where she was going. She just said she was going. She just said she was going and that is last time she saw Njeri alive.
44) She testified further that Eric had left the house at 2.00pm and lunch was between 3.00-4.00pm. That before Eric left, he called Njeri outside and Diana joined them. That when Njeri it was two hours after Eric had left. She did not know where either of them went
45) Eric came back after 10:00pm. She said this was not unusual. He found her with Tamara who left for her house while she left Eric in the sitting room and went to sleep while in bed, she heard the door being opened but she did not see him leave. She said she fell asleep about 11:00pm and did not hear him get into bed but found him in bed went to her in the morning. That the baby usually slept in the middle . She also said that it is the baby who woke her up between 3- 4.00am and that is when she saw Eric.
46) On further cross-exam she told the court that when Eric stopped out, he was on phone. He was speaking on the Infinix phone. She explained that the Infinix phone had 2 lines - one hers the other Eric’s. That the phone was in her possession the whole day - and when Eric came home after 1000pm , she saw him step out talking on this phone. She said she did not hear who he was talking to. When it was put to her that no calls were made from the Infinix pone that night – she said she did not know.
47) On further cross-exam her statement was put to her and she confirmed that Njeri told her she was stressed and could not concentrate enough to sit the final exams. That Diana told her that it was she who ought to have been stressed, cautioned that Njeri risked going back to depression, and convinced her not postpone sitting the exam.
48) She confirmed that in her statement she told the police that when the story of the missing person broke out, she started scrolling the internet to see whether such a story was tending. She found none. She also stated that when she heard that the body that was found was that of a girl with black and white braids, she concluded that it was Njeri who had committed suicide She confirmed that she was aware that Njeri suffered from depression due to issues related to trauma she suffered from mistreatment by the aunt who had raised her. That she was the one who called the mother of Njeri in 2019 when she noticed that Njeri was crying a lot. Njeri’s mother intervened and Njeri was able to start therapy.
49) Dian further told the court that Njeri was in the process of healing but was still erratic in her behavior, she was moody, and would sometimes keep to herself and even skipped a CAT (Continuous Assessment Test)
50) She told the court that there was no problem between here and Njeri over his boyfriend issue - that she told Njeri to cook in her house because she knew Njeri would be uncomfortable around Eric, that she Diana had no reason to be jealous because Njeri had not shown any interest in Eric. She said she could not tell whether Eric had any reason to hurt Njeri.
51) Tamar Wambora Njeru was PW3. She told the court that she knew Diana 2017, Njeri in in October, 2018 and Eric in 2019.
52) According to her on 4/12/2020 when they left for Diana’s uncle’s funeral, they left Eric and Njeri in the house. That they left Njeri behind because of the baby. When they returned that evening, they had supper together as usual and everything was ok.
53) She told the court that on 5/12/2020 around 12 noon her friends Boaz, Kirimi and Juliet came and they left for the bouncing castles leaving behind Diana Eric and Njeri. at home. They came back around 6.00pm. That day unlike other days Njeri cooked dinner at her place – she found it unusual because they normally cooked and Diana’s place. She said she found this odd.
54) On 6th December 2020 it was Diana’s birthday. She cooked pancakes for Diana. On checking her phone, she saw that Njeri had texted her asking for her milk. She did not take the milk but went to Njeri’s house. She testified that she noticed that Njeri had opened her anxiety pills, something she had not done in a long time. Upon going to Diana’s, she told her about Njeri’s anxiety pills. Njeri joined them for breakfast. Eric was in the bedroom
55) Later in the day Tamara and Njeri went and bought pork for lunch which Tamara cooked. In the process Diana went outside and came back crying. She was out there with Eric. Njeri followed her to the bedroom. They were in there for a while. Njeri came out. Tamara went in and spoke to Diana who told her about what had happened on the 4th December 2020. That Eric had tried to approach Njeri.
56) Tamara said that Eric had a conversation with Njeri outside, and then Eric left. She said Njeri left later at about 4:30pm. She identified the bag that Njeri had when she left.
57) On 9th December 2020 she leant that Njeri had died. She, was in the house with Eric when Diana called and told them about Njeri’s death. She later went to the morgue with the others and confirmed that it was Njeri. She said that after the postmortem Eric told them that Njeri had ben strangled.
58) She told the court that on the 4th of December 2020. She and Diana left the baby with Eric. At that time. Uh, Eunice had lost her phone. That on the 6th of December 2020 she went to fetch Njeri from her house and found that she had opened her anxiety pills bottle .They had breakfast together and Eric was around. But he remained in the bedroom, and Njeri came in at around 10:00 AM. He told the court that she was aware Njeri was having some mental health issues. And that she had been going for therapy from September 2020.
59) He said that around 2:30 PM. Eric left the house. and had a conversation for about 15 minutes outside the house with Njeri. That Diana joined them outside and stayed for about 5 minutes. Eric did not come back to the house. She confirmed that it was her Diana, Kimmie and Juliet who were the last persons to be with Njeri before she died. Confirmed that it was not in her statement that Eric told her that Njeri had been strangled.
60) PW4 Duncan Kimani Wambua, told the court that. He was a farmer in Njoro. On the 7th of December 2020 around 9:00 AM. He went to irrigate vegetables using a pump and pipes. he would pump the water from the nearby river. He went into a nearby thicket to relieve himself. Before he could start, he saw the body of a person in the water. He saw hair floating in the water. He immediately decided to go and inform his father, who was a member of Nyumba Kumi. On his way, he met Thuku regret vegetables and drew his attention to what he had seen. His father. Joseph Nthiwa Wambua came to this scene. And PW4 left when his father was calling the chief. He identified the black bag he had seen at the scene. He said his home was about 100 meters from the scene and if anyone had screamed, they would have heard from home. Cross examination, he said the body was in the liver, the face was in the water. And the body was floating. He said the only thing he saw was the bag and did not check the same because he was in shock.
61) PW5 Stephen Mwangi Maina assistant Chief Kikapu sub location, the call from joseph Wambua of Nyumba kumi telling him that there had been an incident at the river near his home. He accompanied Joseph to the scene, which was at River Subuku around 30 meters from the road. He saw a monkey bag, an empty plastic juice .bottle and an empty bottle of Napoleon spirits. There was also one black sports shoe. He rang the officer commanding Station Njoro. 45 minutes later, the police came. The body was removed from the river. But no one from the crowd that had formed was able to identify the person. The police took away the body and on 9th February, the assistant chief recorded his statement
62) PW6. NO. 235224.Chief Inspector Simon Kamore Wahome testified that on the 18th February 2020. He was requested By Inspector Kamau meant a scene at Mwariki in Nakuru, which was the rental House of 1 Eric Maingi Mutuma. He went to the scene and 43 photographs which he summarized into eight sets.
63) These were the general view and entrance to the rental house, the general view inside the house, close up views of 872 Safaricom SIM cards found in the bedroom parked in different packages, 6 phones, one Sony digital camera. Three laptops, close-up close-up Views of identification documents of Eric Maingi Mutuma and Diana Njeri Muthomi, general view of Eric Maingi Mutuma, close up views of the right and left hands of Mr. Eric Maingi Mutuma, close up views of healed wounds at the back of both hands of Mr. Eric Maingi Mutuma. He produced the certificate dated 19th November 2021 and the photographs. He also produced 10 photographs at the request of the investigation officer PC Romana Odour related to the homicide scene in Njoro area.
64) On cross examination, he testified that. Eric's house was treated as a scene of crime. That he took the photos of Eric's hands and the instructions of the investigation officer. He was interested in the scars. And that Eric did not tell him where the scars were from. That he knew the offense facing the accused was Murder. But he did not know whether he had been charged with respect to the SIM cards.
65) Pw7 Laban Miatu Maina told the court that he was the care take o the 51 units of rentals, among his tenants were Diana and Eric in room 8 Njeri lived in a bed sitter . on 7h December 2020 he heard that there was a body in the river. He was among the people who went there . he saw the body, the bottles and the bag. On 10th he heard students saying that Njeri had left on the Sunday and had not returned . when they described how she was dressed when she left and her hair, he told them that the description fitted the person he had seen. He accompanied them to the mortuary, he Sadam, Eric , Tamar and others. They were advised by the mortuary attendant that if the body was that of their friend, they were not to call her parents but to leave it to the dean to whom they were to report. It turned out that the body was Njeri’s . They went to her house retrieved her IDs and reported to the dean. A counsellor came to the plot and spoke to the students. That night he received a call from Njeri’s mother. He took her to Njeri’s house , and to the scene where the body was found. He accompanied her to DCI where they were given two officers who accompanied them to, her mortuary where she identified her daughter’s body. He testified that the postmortem revealed that Njeri had been strangled. The body was released to the mother.
66) On 11th December 2020, Diana told him she was feeling insecure and she moved out. He said Eric had already moved out. On cross examination he said that Diana and Eric moved out but when they were moving her things, she was alone.
67) PW8 no. 110280 PC Stephen Ruto told the court that he learnt about the scene of suspected drowning at Ngondu on 7th December 2020 from the OCS Njoro police station. Accompanied by other officers they went to the scene. He said there was a bridge, and down the bridge there was a body of a young lady in the water, in a pool of water, face down. There were two empty bottles, one of minute maid juice, the other Napoleon spirits, black monkey bag. They took the body out. It had no visible bruises. He took photos with his phone.
68) That it was in February 2021 that he learnt that the scene he had visited was not a drowning scene but a murder scene.
69) On cross examination he told the court that when they recovered the body, he did not see any bruises and concluded that it was a drowning case. That he learnt three months later that it was not a drowning scene but a murder scene. He said that he did not attend the postmortem.
70) PW9 Dr. Wangari Wambugu was the pathologist who conduced the postmortem on 10th December 2020 at Egerton University Mortuary.
71) On external examination the body had bruises on the forehead , hemorrhage into the left eye.
72) Internally she found on the neck intra muscular hemorrhage into the superficial and deep muscles of the neck @ the level of the mid neck around the thyroid bruising of the tissues , muscles around the left upper part of the neck , bleeding into the thyroid gland , bleeding in the muscles around the spine in the neck area; lungs did not have excessive fluid, bruising of inner scalp of the forehead . she formed the opinion that cause of death was neck compression due to blunt force trauma to the neck consistent with strangulation resulting from assault.
73) Pw9 Number 76478 Sergeant Joshua Tobolei told the court that he was assigned to investigate a death incident reported as a drowning incident at Njoro . Police station on 10th of December 2020. he accompanied the mother of the deceased, one Elizabeth Muthoni, to the Egerton University Mortuary where she identified the body of Eunice Njeri. He said the postmortem confirmed that the deceased had died due to strangulation and he decided to revisit the scene where the body was collected from, Ngondu, about 5 kilometers from the Egerton University. His view was that the volume of the water was too low for one to drown
74)
75) PW9 Edwin Kipkemoi Cheruiyot the Liaison Officer, Safaricom PLC, Rift Valley Region. Told the court that he received a court order. To produce call data records. On behalf of the DCI Njoro for mobile numbers 0716938643 and 0112379006, MPESA statements for 0716938643,0700006641 and 0729851379.
76) Formed that mobile number 0729851379 was registered under Eric Maingi. That on the 6th December 2020 at 2101 hours the location was a
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