The accused was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code, the particulars of the offence are that:
SIMON GITAU KARANJA & DOMINIC OKOTH JONH , On 11 th day of April 2019 at City Garden area Embakasi East Subcounty within Nairobi County murdered VALLARY ATIENO AMENYI .
Mental assessment was done and the accused was found fit to plead. The accused persons later pleaded not guilty to the charges and the prosecution called 10 witnesses in proof of the charges.
THE PROSECUTION EVIDENCE
PW1, Laura Akinyi Odhiambo testified that she resided at City Carton in Embakasi West ward where she runs an Mpesa shop Gikomba. The deceased was her friend and that sometime in 2017 her friend Valeria Atieno requested for her ID card to register her line. The deceased did not have her ID.PW1 called her parent and they went to the Mpesa next to them at City Carton.
They bought a Safaricom line using 100/=, PW1 identified her ID in court 34192024 and was produced as P Exh1.The deceased was registered and they went home. The deceased was their neighbor at City Carton.
That on 11/4/2019 at about 3:00am they were sleeping when the deceased mother knocked their door, they found the deceased being carried by her father and Baba Ben and some neighbors. The deceased was bleeding and she was taken to Mama Lucy hospital while other neighbors remained behind. The deceased’s father called after 30 minutes and told them she had died.
PW1 stated that the deceased was their neighbor for 10 years, her father bought her a kambambe phone her father bought her China phone which was black and shiny, her boyfriend gave her another phone Nokia Lumia black in color.
That on 4/6/2019 PW1 was called by DCI Wanjohi to go to Buruburu police station and was to identify a phone.She found many phones on the table and she was able to identify the deceased’s Nokia Lumia phone .The phone had a cracked screen and she also saw her with it the day before .PW1 identified the phone in court as PMFI- 2 .
She was cross examined by the 1 st accused counsel, she stated that she had been friends with the deceased since childhood, they attended Nairobi River primary school between 2004 and 2011. The deceased was also a class mate, she was born in 2007 while the deceased was born in the year 2000.They also lived at City Carton all their lives.
The deceased asked for her phone to register a line, her mother had travelled and the brother was away. She could not remember the number she registered using her ID, the deceased used it for 3 years.
She was with her sister Marleen on the night of 11/4/2019, they had gone to bed at 6:00pm. She had seen the deceased at 6:00pm at their house and she greeted her and went to their house. The deceased was 4 houses away from their house. Vivian, the deceased’s cousin woke them up she was crying and shouted “ amkeni amkeni Valery amedungwa na kisu …” She was in form 2 .
She did not state who stabbed her, they opened the door and their father went out first. Vallary had a Techno Kabambe phone which she said was given to her by her mother in 2017.She was anxious to use it .Her best friend was called Mariam who stayed at Kiambia and was also her school mate.
That her father bought her Itel phone that was black at the front, she had a sim card at this time, her lover bought her a Nokia Lumia phone. The boyfriend is called Mwanake he was 24-25 years at the time and they started relating in 2018.He would meet her outside the compound and was a neighbor in 2018 for 4 months. The boyfriend’s parents lived in Biafra while he worked as a mechanic in a garage , she did not know the garage.
Mwanake was Kikuyu and was of medium height, medium hair and light skinned. He went back to Biafra after 4 months, but would still come back daily at about 10:00pm. Vallary used to close gate and keep the keys, she was the only one with copies of the keys, the gate would be opened at 5:00am.
Her room was closest to the gate and neighbors would call her to open the gate .It was a mabati gate.PW1 did not know if it remained opened that night.
Further that Mwanake bought the phone in April 2019 and it had a crack but it was working.PW1 had met DCI Wanjohi earlier when he asked her to bring her ID Card since the deceased line was traced and had been registered in her ID number. That she worked in an Mpesa shop and she knew about phone, she also knew how the deceased phone was cracked. It did not have a sim card and she did not know the serial number.She heard from Baba Ben that the deceased phone had been stolen and her bag was found at the gate, she heard this after they came from hospital when he mentioned her bag and a cap.
PW1 did not hear the deceased scream. The padlock of the gate was not broken and it was also possible that the gate had not been locked. The closest police station was 2 km away from the place. The perpetrator had to be someone known to the deceased because the area was safe.
The deceased was in a black trouser and orange top, she had no shoes on. Another padlock was bought by neighbors and Baba Ben kept the keys. The gate is still closed at 10:00pm and is opened at 5:00am .
She was cross examined by the 2 nd accused counsel, she testified that they were neighbors and 10 houses in between them. The Plot has a common gate, the family occupied 2 houses and 2 houses in between them .4 people slept in the deceased house, Vivian, Whitney, Awino and the deceased.
She did not see the person who stabbed the deceased, Vivian informed them the deceased was stabbed. She did not know the 2 nd accused person and saw him in court for the first time. She did not know if the accused got the Nokia Lumia from a repairer. The DCI did not tell her the people who were found with it, she was told in court that Gitau and Dominic were found with it.
She did not see Mwanake during the funeral gatherings. She stated in re-examination that she did not hear any quarrels between the deceased and Mwanake.
PW2, Dr Charles K Muturi Pathologist based at Mama Lucy Kibaki hospital referred court to the postmortem report done on 16/4/2019 at the hospital. The deceased was 20 years old of good nutritional state and medium physique.
She had a recent injury in form of penetrating stab wound on the left side of the neck which was 5 cm long 1.5 cm width. It severed the neck vessels and fractured the cervical vertebrate, transected through the spinal cord.
The skin had punctured marks on the left elbow signifying drug administration. The cause of death was severed blood loss and cervical spine injury due to sharp force trauma consistent with stab wound.
He also took blood specimen as requested by the police for matching the weapon of assault. The postmortem report was produced as Exhibit 1.
He was cross examined, he stated that the date was 16/4/2019 when he examined the deceased, while the document was filled by the police on 15/4/2019 when it was registered at the station. Attempts to inject medicine was also noted.
On further cross examination by the 2 nd accused, he testified that he was not able to tell medical interventions that would assist in compounding the situation since he did not access her records.
PW3 Fredrick Jesse Ochieng Ouma, also a resident of Carton Buruburu where he did panel beating and spray painting for a living.
He stated that he was at his house on 11/4/2019 and was sleeping when at 3:00am he was woken up by screams from his neighbors’ children. The children slept in the first room next to his gate. The neighbor was called Mama Valerie. He put on the lights and got an iron rod from under the bed, the gate was opened, he headed towards the gate .Mama Valerie was also from the children’s room and she told him to go to the room and help Valerie and remove the knife that was stuck on her neck and take her to hospital.
He found the deceased on the bed and she had a knife on her neck, she was sleeping on one side. The 3 other children were in the room, the knife had a black handle which he removed from her neck and placed it down .He identified it as MFI- 4 .He headed to the gate where he found a black cap and a black handbag, the cap had a mark of 2 guns making an X at the front, he identified it as MFI -5 and the black bag as MF1- 6.
Neighbors came out and entered the plot, they carried her to the road and got a taxi. Her mother and neighbors went with her to hospital while he remained behind. He was called after 1 hour and informed of her death.
He was cross examined, he stated that on 10/4/2019 he returned home at 6:00pm and he found the gate was opened.He lived alone and went to bed at 9:30-pm .He did not know if the gate was still open when he went to sleep but when he woke up and opened the door he noticed that it was open .The gate is locked and is opened from inside though he could not tell if it could be opened from outside.
Aoko also told him about the stabbing but she did not tell him who did it. The deceased was still alive when he went to the room and the mother had switched on the lights and the deceased was on top of the beddings. He assisted in carrying her to the taxi, she was still alive at this time. It took 30 minutes to carry her to the taxi.
On further cross examination by the 2 nd accused, PW3 stated that he had been neighbors with the deceased family for 2 years, the gate must be opened from inside. He never saw the deceased with a man and did not know Mwanake.
The children screamed and were calling their mother to go and help them, he did not hear them mention names. The mother was in panic when he arrived, he did not see the Accused 2.He only saw the deceased’s mother.
He had seen the deceased carry the bag at one time, he does not know if removing the knife caused the death.
PW4 , Samuel Ameli Adiyo also a resident of City Carton Buruburu where he works as a welder testified that at 10:30pm he was at his house with his wife and children. That he heard sounds calling “ mum mum mum..” 3 times .It was at 3:30 am. He lived with his 5 children who slept at a room next to the gate, his house had 4 rooms. He woke his wife up to check on the children, she opened the door and they reappeared while screaming telling Baba Ben to go see saying that a knife was stuck on the neck of Atieno.
He ran and found Baba Ben was already outside, he headed to the room, he found the gate opened and the door to the room was also opened. The deceased was on the bed and lay on her side with a knife stuck on her neck.
Baba Ben removed the knife from the deceased neck, PW4 took it and hid it in fear that someone could go away with it. The knife was identified in court.
They started seeing how they could take her to Mama Lucy Kibaki hospital, neighbors also gathered they found a vehicle after 30 minutes. He searched Valerie’s room, he said that she had Itel phone he had bought for her at Ksh 2100/= .He produced the receipt as P Exh- 7.
He did not get the deceased’s phones, he went outside the gate and saw a black bag and cap with an X sign of guns. It was next to a tap. He saw the bag and was convinced the phones had been stolen. The deceased used the bag to carry her things.
He headed to hospital but before he reached the gate he heard his wife screaming .He went to hospital and that found she had already died.He made the report at Buruburu police station , he took the police to the scene 2 km and cruisers , he also handed over the exhibits to the police who came to the scene .He identified the body on 14/4/2019 .
On 5/5/2019, he was called by the police, he travelled from home and on the next day the he went to the police station where he found 2 people and he was asked if he knew them. He was also asked about the deceased bag and was asked to identify Valerie’s phone. He identified the Nokia phone with a cracked screen .He also identified the two men in court.
PW4 was cross examined, he stated that he had stayed at Carton for 35 years and he had never seen the 1 st accused in the area. It also has good security and such an incident had not been seen. The plot had 12 rooms though he did not know the total number of residents as each of them had a family.
The gate had 1 padlock and was used by everyone, the key is hung next to the gate for the one who came late. Only residents know this. He locked the gate that night after the children went to sleep.
The deceased had her 2 phones which she had charged in his house, the door to the children room was also closed from the inside with a lock, it does not use a padlock.
He went to watch TV and slept at 11:30 pm. The sounds he heard were like someone struggling to speak out, the room for the girls so he sent his wife to check on them.
When he arrived the door was kicked open but the lock was intact. The deceased was on the bed and was not covered with bedsheets or blanket, she was also alive. Some women also rushed to the room after they heard screams
The children remained dumb for about 1 week, the padlock of the gate and the keys have never been found. He found the bag about 1 hour after she had been taken to hospital.
The cap was on top of the tap which is inside the plot and is next to the wall. Valerie did not have a cap. He suspected the man who stabbed her left the cap and bag behind.
He stated upon further cross examination that he did not know the 2 nd accused person that the place is an informal settlement and the room was next to the gate. The road outside the plot is pubic toad. The door had two locks from inside, he first heard low voices of the deceased and he suspected that they were in danger. The deceased was still alive when they removed the knife, she never uttered anything.
The cap was outside the gate next to the wall. It was not on the road, the gate is also not close to the road. The bag had 2 pieces of paper which were still inside it. The deceased was 19 years old and was training to be a salonist. He did not know any relationship with Mwanake.
That the 2 nd accused had long rasta hair, he was told that the 2 nd accused was arrested at Baba dogo . He had not seen the accused before.
He stated in reexamination that the deceased went to sleep with her phones .The cap was on top of the bag. He had not seen the cap in his house.
PW5 Florence Aoko a resident of Carton City where she works as a fish vendor testified that on 10/4/2019 she was with her children listed as the deceased, Vivian Whitney and Leah together with PW4 who is her husband .That the children left to sleep in the other room at 10:30 pm , their room is separate from theirs. Vivian and deceased slept on one bed, Leah and Whitney slept on the other, she heard screams at 3:00 am coming from Valery calling “.. mum mum mum ..”
She opened her door and went to see, Vivian was at the door and she told her to rush in and see the deceased, the gate and the door to the room was open , she removed the curtain to the room and saw a knife stuck in her neck , it was a black knife .She rushed out and called for help , a young man Ochieng was the first to arrive , they entered where Valery was and he removed the knife from the neck , the deceased never spoke.
She went with the neighbors to Mama Lucy hospital, she was put on oxygen and the doctor said she was 50:50, she passed away after a short while. The knife was identified in court, the black cap, the black bag found at the gate was also identified. They took them to Buruburu police station.
The deceased had 2 phones, Nokia with cracked screen and Itel which was black and shiny, she did not have an ID and her line was registered in the name of Laura Akinyi who was her friend.They did not get her phones that night.
She identified her body on 14/4/2019 at Mama Lucy hospital. she was also called to the station on 4/5/2019 and was told about some phones that had been recovered, she saw the deceased Nokia Lumia phone black in colour with a cracked screen, the deceased used to lend it to her to use it.
She was cross examined, she testified that she had never seen the 1 st accused in the neighborhood, that the deceased had her phones that night when they were watching TV. The children went to their house and locked the door from inside. It is locked by a ‘ kijubi ’.The deceased was the one who called out and when she went , she found her sister at the door. The gate and the door were also opened.
She could not say if it was her sister who opened it or not, she did not see anyone leave the gate and she did not see the accused at the plot that time. She testified that the Nokia phone had her friend’s line while the Itel one did not have a line. The Itel phone has never been recovered, she has also not been called to identify any other phone .She was also not called to identify any suspect.
The 2 nd accused counsel cross examined the witness, PW5 stated that they rented 2 rooms in the plot which had 10 rooms with one gate .She kept the key so that she could open it in the morning when she leaves, she then leaves the key in the house. She also closes the gate at 11:00pm and keeps the key in her house in the cupboard next to the door
That the deceased slept on the bed that was next to the wall, she lay on her right side with a knife protruding from her neck. There was also blood on the bedsheets but Vivian did not have blood on her.
The key of the gate was hanging, the door and the gate had not been broken. The deceased did not tell her where she got the Nokia phone and never introduced any boyfriend to her. She stated during cross examination that the children went to sleep and closed the door.
PW6 Vivian Atieno testified that she was in Form 2 and schooled at Golden Gate at the time of the incident. On 10/4.2019 she was in the house with Florence Aoko and her cousins Valery Atieno Whitney Anyango ,Leah ,Adina Trizah .They were in the main house and they went to sleep at about 10:30pm .The room is next to the gate , she slept with Vallary in one bed while Whitney and Leah slept on the next.
That she heard Vallary scream at about 3:00am, on waking up everything was all over the floor , the door was open the main gate was also open while Vallary was on the bed and she had a knife on her neck. The lights were on so she could see well. They also slept with the lights on, the other cousins were on the next bed.
That when she heard Vallary scream she asked her what the problem was , she told her to go call her mother , her aunt Florence rushed to their room had found the deceased on the bed with a knife stuck in her neck. Her aunt called their neighbor, Fredrick who came and removed the knife. Vallary’s handbag was also found outside the gate after she was taken to hospital he knew the handbag and could identify it in court.
She also identified the deceased phone at the police station , it had a cracked screen ,the phone and the knife were also identified in court .She did not see the person who stabbed the deceased.
She was cross examined by the 1 st accused, she stated that she had stayed with her aunt from the time she was in class 4 and she was 7 years, the gate would be closed but at times it remained open. The key was kept by Fredrick or her uncle. That they went to buy rice and found it was open, when they came back Vallary closed the gate but did not put the padlock. This was about 10:00pm.
The deceased also closed the door of the room when they went to sleep, it could not be open from outside. She did not see the accused when she woke up and it was also the first time she was seeing him. That the deceased did not say who stabbed him.
She was further cross examined by the 2 nd accused. Her further evidence was that the deceased slept facing the door while she faced the wall. The knife was stuck on the left side of her neck, she also saw clothes scattered all over the floor. She did not hear anything before the deceased screamed. Further, that she had never seen the 2 nd accused before. The deceased got one phone from the father but she did not know where she got the other phone.
PW7 , Margaret Wahu Maina from the Government Chemist in Nairobi attended court and produced the government chemist report signed on 1/7/2020.She testified that she received several items from No. 75845 CPL Joseph Wanjohi of DCI Kamukunji. A knife with a black handle marked A1 , green piece of cloth placed in a khaki envelop A2 , blood samples in a bottle marked A3 belonging to Vallarie Atieno Apiyo. A high vaginal swab in a khaki envelope marked A4.
They also received several items on 7/5/2019, a black cap marked A5, blood sample in a bottle neck Simon Gitau, blood sample in a bottle neck A7 Dominic Okoth.
On examinations, she found that the knife was heavily stained with blood of human origin, the vaginal swab also stained with blood of human origin but did not have semen, the cap did not have blood stains. The green cloth and the cap did not generate DNA.
The DNA profiles were generated from the knife and vaginal swab and matched the deceased’s samples.
She stated during cross examination that the items were received by someone else and the blood samples were already marked when she received them. The blood samples did not match other samples availed. One was marked Simon Gitau Mwaura. What she received was marked Simon Gitau Mwaura, there was also a typographical error indicated was Dickson Gicho…..she did not receive one marked Simon Gitau Keronye.
She was also cross examined by the 2 nd accused, she stated that from items received the one marked A7 did not matched a DNA profile .
On re-examination , she said that her colleagues Ruth Katho and Elizabeth Oyengo , A6 already came marked as Simon Gitau Mwaura and the deceased name appeared as Vallery Atieno Atieno. This was a typographical error. It did not affect the tabulation and conclusions.
PW8 No 235250 IP Michael Njenga from the Scene of Crime office of Buruburu Directorate of Criminal Investigations testified on 11/10/2021. He has been in the profession since 2015 and holds a Bachelor in Biomedical scientific technology. He was gazetted on 31/7/2015 and his duties entails processing a crime scene which he explained to court.
He stated that in this case, he accompanied CPL Wanjohi to Mama Lucy Kibaki hospital mortuary where they saw the body of Valarie Otieno. That she was allegedly pronounced dead on 11/4/2019 upon arrival after being stabbed at their sitting room at their home. He took 11 photographs but the quality was poor. He referred to 4 photographs, the general view of the body the closer view and the general view of the house where the deceased was allegedly stabbed and Photo 4 a closer view of the blood -stained house.
He produced the photographs as P Exh 10 a 1-4 and the certificate of the electronic evidence as exhibit 10 b.
He was cross examined, he said that he was in the company of CPL Joseph Wanjohi who also identified the body and led him to the house where the deceased was alleged to have been stabbed. That the case was investigated by another officer he found at the scene.
He further stated that the description of the device was not in his report, he did not mention how he extracted the photos from the device but the report reads that the negatives / memory card was inserted into the gadget
Lastly, his evidence was that it was not necessary to mention the gadget used to produce the photographs.
The provisions of Section 200 were read out on 17/3/2023 and directions taken respectively. The accused persons both stated that the case proceeds from where they left it.
PW9 Ambrose Munyoki from Safaricom PLC and a data analyst within law enforcement department testified. He stated that he worked with Safaricom for 8 years. He received a letter dated 14/4/2019 identified as MFI- 11 from DCI Buruburu police station requesting for data of the following phone numbers :-
0704654486 ,
0795188835
The letter required the serial numbers of the phones used to call the numbers for the period between 2/3/2019 and 14/4/2019, the names and ID numbers of the owners were also required.
He found that phone number 0795188835 belonged to Laura Akinyi Odhiambo of ID No 34192024. investigations revealed some extracted data from IMEI phone which were found on another phone number seen on the same hand set –this was number 0710765245 of ID 25530253 belonging to Dominic Owiti used on 12/4/2019 He produced the report on IMEI identification of handset Laura Akinyi Odhiambo as PEXh 12 (a) , the data record PEXh 12 (b) and certificate under Section 106 (A) & (B) of the Evidence Act signed on 9/11/2022 .He did not know the accused .
He was cross examined by the 1 st accused , he testified that his duties entail data extraction and that the data is system generated .The documents produced are in the original form bearing the original stamp of the company .They printed , certified and handed them to the police. He could not tell if Valarie Atieno used the phone number 0795188835 in any manner, he gave original documents to the investigating officer He stated that of the owners for the phones that used the numbers
He was also cross examined by the 2 nd accused , he further stated that on 12/4/2019 phone number 0710765245 was used by Dominic Owiti, the line was inserted in the handset.That there was communication through incoming calls recorded in the data made on 12/4/2019 at 8:15 hrs. The location of the 2 nd accused was Babadogo Kasebuni.
Short message SMS from Laura Akinyi Odhiambo sent on 11/4/2019 at 0339pm -3:39 am and location was Nairobi Calvary Temp. He stated in reexamination that the documents were generated from their system at Safaricom Ltd .
Pw10, No 75854 PC Joseph Wanjohi testified that he was posted at DCI Buruburu police station where he was tasked with general investigations.
He testified that he was on duty on 11/4/2019 and was assigned a case where one Valerie Atieno a resident of City Carton within Buruburu police station area.The report was made by the deceased father who narrated what happened .He visited the scene on 12/4/2019.
He got into the room at plot. The plot had 7 houses on one side and 7 on the other side and 1 main gate.This particular room was on the right side as one gets into the gate and was the 1 st house and a single room.
The room was shared by 4 children who were under the care of Samuel Amenyi their father, the scene was disturbed items were scattered all over, the beddings were not in order and physically it looked like looking for something. The parents narrated that they lived in the next room which was also the sitting room and bedroom .It was in the far end corner of the gate , the next one was near the gate on the left side where the 4 children lived . The parents heard screams from the children bedroom at 3:00am, the mother was the first to move quickly to come to the children room to find out what was happening.
That she realized Valerie Atieno had been stabbed, she called the children father and responders came to the scene and took Valerie to the hospital and was pronounced dead on arrival.
He learnt that the deceased had 2 phones Nokia Lumia 520 , Kytell Kiio MFI2 and MF7.That 0795188835 was the number used with Nokia Lumia phone .He was handed other exhibits recovered outside the plot where the deceased lived :small black bag handbag , black cap crossed with guns design .The mother identified the handbag as belonging to the deceased.
A cream cloth with dried blood stains, blood stained knife found inside the room where the deceased was stabbed.
He undertook further investigations from subscriber of Safaricom Ltd , he wrote to Safaricom Ltd as per letter marked MFI 11.He got response which was that on 12/4/2019 the gadget was inserted with the line Number 0710765245 registered in the name of Dominic Owiti and ID 25530253 .The earlier number was registered in the name of Laura Akinyi ID 34192024.
That the phones had not been recovered from the scene .The investigations showed that Dominic Owiti inserted a line in the Nokia Lumia phone initially used by the deceased. The phone had a broken screen.
That the Dominic Owiti was arrested on 3/5/2019 in his house at Kuria Dudu Ruaraka area, they also found a bag of phones where they recovered the Nokia Lumia among various phones. They prepared an inventory which was signed by his colleague the accused and he also signed it. The accused told them that Simon Mwaura sold to him the Nokia Lumia phone at Ksh 800/= , they went to Simon Mwaura who worked as a phone technician .He admitted that he sold the phone to the 2 nd accused .
They tried to find out how he got the phone, he told them he bought it for Ksh 200/= and that he did not know the name of the person but he could identify the person physically. The two were escorted to Buruburu police station, they did not trace the person who sold the phone to Simon Mwaura. The accused was detained at the police station through a court order.
The witness produced the Nokia Lumia phone, exhibit 2, black handle knife as exhibit 4 and 14 black cap exhibit 5, black bag exhibit 6 receipt for Kytel phone exhibit 7 , exhibit memos dated 23//4/2019 and 7/5/2019 as exhibit 8 (a) and (b) , a cream cloth as exhibit 13 and the inventory as exhibit 15.
He identified the accused in court, he also witnessed the postmortem and the cause of death was stab wound excessive bleeding .The girls sharing the room were between 6 and 10 years old, he could not tell exact date of birth but they were below 15 years old.
He was cross examined, he stated that he recommended the charges to be brought against the suspects in court .The complaint was by PW3 who said his daughter was stabbed at City Carton area .He did not file a report on theft of mobile phone. The 1 st accused was not at the crime scene, a kitchen knife black bag and black cap were lying on the said room and the complainant was there.
He agreed that the gover
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SIMON GITAU KARANJA & DOMINIC OKOTH JONH , On 11 th day of April 2019 at City Garden area Embakasi East Subcounty within Nairobi County murdered VALLARY ATIENO AMENYI .
Mental assessment was done and the accused was found fit to plead. The accused persons later pleaded not guilty to the charges and the prosecution called 10 witnesses in proof of the charges.
THE PROSECUTION EVIDENCE
PW1, Laura Akinyi Odhiambo testified that she resided at City Carton in Embakasi West ward where she runs an Mpesa shop Gikomba. The deceased was her friend and that sometime in 2017 her friend Valeria Atieno requested for her ID card to register her line. The deceased did not have her ID.PW1 called her parent and they went to the Mpesa next to them at City Carton.
They bought a Safaricom line using 100/=, PW1 identified her ID in court 34192024 and was produced as P Exh1.The deceased was registered and they went home. The deceased was their neighbor at City Carton.
That on 11/4/2019 at about 3:00am they were sleeping when the deceased mother knocked their door, they found the deceased being carried by her father and Baba Ben and some neighbors. The deceased was bleeding and she was taken to Mama Lucy hospital while other neighbors remained behind. The deceased’s father called after 30 minutes and told them she had died.
PW1 stated that the deceased was their neighbor for 10 years, her father bought her a kambambe phone her father bought her China phone which was black and shiny, her boyfriend gave her another phone Nokia Lumia black in color.
That on 4/6/2019 PW1 was called by DCI Wanjohi to go to Buruburu police station and was to identify a phone.She found many phones on the table and she was able to identify the deceased’s Nokia Lumia phone .The phone had a cracked screen and she also saw her with it the day before .PW1 identified the phone in court as PMFI- 2 .
She was cross examined by the 1 st accused counsel, she stated that she had been friends with the deceased since childhood, they attended Nairobi River primary school between 2004 and 2011. The deceased was also a class mate, she was born in 2007 while the deceased was born in the year 2000.They also lived at City Carton all their lives.
The deceased asked for her phone to register a line, her mother had travelled and the brother was away. She could not remember the number she registered using her ID, the deceased used it for 3 years.
She was with her sister Marleen on the night of 11/4/2019, they had gone to bed at 6:00pm. She had seen the deceased at 6:00pm at their house and she greeted her and went to their house. The deceased was 4 houses away from their house. Vivian, the deceased’s cousin woke them up she was crying and shouted “ amkeni amkeni Valery amedungwa na kisu …” She was in form 2 .
She did not state who stabbed her, they opened the door and their father went out first. Vallary had a Techno Kabambe phone which she said was given to her by her mother in 2017.She was anxious to use it .Her best friend was called Mariam who stayed at Kiambia and was also her school mate.
That her father bought her Itel phone that was black at the front, she had a sim card at this time, her lover bought her a Nokia Lumia phone. The boyfriend is called Mwanake he was 24-25 years at the time and they started relating in 2018.He would meet her outside the compound and was a neighbor in 2018 for 4 months. The boyfriend’s parents lived in Biafra while he worked as a mechanic in a garage , she did not know the garage.
Mwanake was Kikuyu and was of medium height, medium hair and light skinned. He went back to Biafra after 4 months, but would still come back daily at about 10:00pm. Vallary used to close gate and keep the keys, she was the only one with copies of the keys, the gate would be opened at 5:00am.
Her room was closest to the gate and neighbors would call her to open the gate .It was a mabati gate.PW1 did not know if it remained opened that night.
Further that Mwanake bought the phone in April 2019 and it had a crack but it was working.PW1 had met DCI Wanjohi earlier when he asked her to bring her ID Card since the deceased line was traced and had been registered in her ID number. That she worked in an Mpesa shop and she knew about phone, she also knew how the deceased phone was cracked. It did not have a sim card and she did not know the serial number.She heard from Baba Ben that the deceased phone had been stolen and her bag was found at the gate, she heard this after they came from hospital when he mentioned her bag and a cap.
PW1 did not hear the deceased scream. The padlock of the gate was not broken and it was also possible that the gate had not been locked. The closest police station was 2 km away from the place. The perpetrator had to be someone known to the deceased because the area was safe.
The deceased was in a black trouser and orange top, she had no shoes on. Another padlock was bought by neighbors and Baba Ben kept the keys. The gate is still closed at 10:00pm and is opened at 5:00am .
She was cross examined by the 2 nd accused counsel, she testified that they were neighbors and 10 houses in between them. The Plot has a common gate, the family occupied 2 houses and 2 houses in between them .4 people slept in the deceased house, Vivian, Whitney, Awino and the deceased.
She did not see the person who stabbed the deceased, Vivian informed them the deceased was stabbed. She did not know the 2 nd accused person and saw him in court for the first time. She did not know if the accused got the Nokia Lumia from a repairer. The DCI did not tell her the people who were found with it, she was told in court that Gitau and Dominic were found with it.
She did not see Mwanake during the funeral gatherings. She stated in re-examination that she did not hear any quarrels between the deceased and Mwanake.
PW2, Dr Charles K Muturi Pathologist based at Mama Lucy Kibaki hospital referred court to the postmortem report done on 16/4/2019 at the hospital. The deceased was 20 years old of good nutritional state and medium physique.
She had a recent injury in form of penetrating stab wound on the left side of the neck which was 5 cm long 1.5 cm width. It severed the neck vessels and fractured the cervical vertebrate, transected through the spinal cord.
The skin had punctured marks on the left elbow signifying drug administration. The cause of death was severed blood loss and cervical spine injury due to sharp force trauma consistent with stab wound.
He also took blood specimen as requested by the police for matching the weapon of assault. The postmortem report was produced as Exhibit 1.
He was cross examined, he stated that the date was 16/4/2019 when he examined the deceased, while the document was filled by the police on 15/4/2019 when it was registered at the station. Attempts to inject medicine was also noted.
On further cross examination by the 2 nd accused, he testified that he was not able to tell medical interventions that would assist in compounding the situation since he did not access her records.
PW3 Fredrick Jesse Ochieng Ouma, also a resident of Carton Buruburu where he did panel beating and spray painting for a living.
He stated that he was at his house on 11/4/2019 and was sleeping when at 3:00am he was woken up by screams from his neighbors’ children. The children slept in the first room next to his gate. The neighbor was called Mama Valerie. He put on the lights and got an iron rod from under the bed, the gate was opened, he headed towards the gate .Mama Valerie was also from the children’s room and she told him to go to the room and help Valerie and remove the knife that was stuck on her neck and take her to hospital.
He found the deceased on the bed and she had a knife on her neck, she was sleeping on one side. The 3 other children were in the room, the knife had a black handle which he removed from her neck and placed it down .He identified it as MFI- 4 .He headed to the gate where he found a black cap and a black handbag, the cap had a mark of 2 guns making an X at the front, he identified it as MFI -5 and the black bag as MF1- 6.
Neighbors came out and entered the plot, they carried her to the road and got a taxi. Her mother and neighbors went with her to hospital while he remained behind. He was called after 1 hour and informed of her death.
He was cross examined, he stated that on 10/4/2019 he returned home at 6:00pm and he found the gate was opened.He lived alone and went to bed at 9:30-pm .He did not know if the gate was still open when he went to sleep but when he woke up and opened the door he noticed that it was open .The gate is locked and is opened from inside though he could not tell if it could be opened from outside.
Aoko also told him about the stabbing but she did not tell him who did it. The deceased was still alive when he went to the room and the mother had switched on the lights and the deceased was on top of the beddings. He assisted in carrying her to the taxi, she was still alive at this time. It took 30 minutes to carry her to the taxi.
On further cross examination by the 2 nd accused, PW3 stated that he had been neighbors with the deceased family for 2 years, the gate must be opened from inside. He never saw the deceased with a man and did not know Mwanake.
The children screamed and were calling their mother to go and help them, he did not hear them mention names. The mother was in panic when he arrived, he did not see the Accused 2.He only saw the deceased’s mother.
He had seen the deceased carry the bag at one time, he does not know if removing the knife caused the death.
PW4 , Samuel Ameli Adiyo also a resident of City Carton Buruburu where he works as a welder testified that at 10:30pm he was at his house with his wife and children. That he heard sounds calling “ mum mum mum..” 3 times .It was at 3:30 am. He lived with his 5 children who slept at a room next to the gate, his house had 4 rooms. He woke his wife up to check on the children, she opened the door and they reappeared while screaming telling Baba Ben to go see saying that a knife was stuck on the neck of Atieno.
He ran and found Baba Ben was already outside, he headed to the room, he found the gate opened and the door to the room was also opened. The deceased was on the bed and lay on her side with a knife stuck on her neck.
Baba Ben removed the knife from the deceased neck, PW4 took it and hid it in fear that someone could go away with it. The knife was identified in court.
They started seeing how they could take her to Mama Lucy Kibaki hospital, neighbors also gathered they found a vehicle after 30 minutes. He searched Valerie’s room, he said that she had Itel phone he had bought for her at Ksh 2100/= .He produced the receipt as P Exh- 7.
He did not get the deceased’s phones, he went outside the gate and saw a black bag and cap with an X sign of guns. It was next to a tap. He saw the bag and was convinced the phones had been stolen. The deceased used the bag to carry her things.
He headed to hospital but before he reached the gate he heard his wife screaming .He went to hospital and that found she had already died.He made the report at Buruburu police station , he took the police to the scene 2 km and cruisers , he also handed over the exhibits to the police who came to the scene .He identified the body on 14/4/2019 .
On 5/5/2019, he was called by the police, he travelled from home and on the next day the he went to the police station where he found 2 people and he was asked if he knew them. He was also asked about the deceased bag and was asked to identify Valerie’s phone. He identified the Nokia phone with a cracked screen .He also identified the two men in court.
PW4 was cross examined, he stated that he had stayed at Carton for 35 years and he had never seen the 1 st accused in the area. It also has good security and such an incident had not been seen. The plot had 12 rooms though he did not know the total number of residents as each of them had a family.
The gate had 1 padlock and was used by everyone, the key is hung next to the gate for the one who came late. Only residents know this. He locked the gate that night after the children went to sleep.
The deceased had her 2 phones which she had charged in his house, the door to the children room was also closed from the inside with a lock, it does not use a padlock.
He went to watch TV and slept at 11:30 pm. The sounds he heard were like someone struggling to speak out, the room for the girls so he sent his wife to check on them.
When he arrived the door was kicked open but the lock was intact. The deceased was on the bed and was not covered with bedsheets or blanket, she was also alive. Some women also rushed to the room after they heard screams
The children remained dumb for about 1 week, the padlock of the gate and the keys have never been found. He found the bag about 1 hour after she had been taken to hospital.
The cap was on top of the tap which is inside the plot and is next to the wall. Valerie did not have a cap. He suspected the man who stabbed her left the cap and bag behind.
He stated upon further cross examination that he did not know the 2 nd accused person that the place is an informal settlement and the room was next to the gate. The road outside the plot is pubic toad. The door had two locks from inside, he first heard low voices of the deceased and he suspected that they were in danger. The deceased was still alive when they removed the knife, she never uttered anything.
The cap was outside the gate next to the wall. It was not on the road, the gate is also not close to the road. The bag had 2 pieces of paper which were still inside it. The deceased was 19 years old and was training to be a salonist. He did not know any relationship with Mwanake.
That the 2 nd accused had long rasta hair, he was told that the 2 nd accused was arrested at Baba dogo . He had not seen the accused before.
He stated in reexamination that the deceased went to sleep with her phones .The cap was on top of the bag. He had not seen the cap in his house.
PW5 Florence Aoko a resident of Carton City where she works as a fish vendor testified that on 10/4/2019 she was with her children listed as the deceased, Vivian Whitney and Leah together with PW4 who is her husband .That the children left to sleep in the other room at 10:30 pm , their room is separate from theirs. Vivian and deceased slept on one bed, Leah and Whitney slept on the other, she heard screams at 3:00 am coming from Valery calling “.. mum mum mum ..”
She opened her door and went to see, Vivian was at the door and she told her to rush in and see the deceased, the gate and the door to the room was open , she removed the curtain to the room and saw a knife stuck in her neck , it was a black knife .She rushed out and called for help , a young man Ochieng was the first to arrive , they entered where Valery was and he removed the knife from the neck , the deceased never spoke.
She went with the neighbors to Mama Lucy hospital, she was put on oxygen and the doctor said she was 50:50, she passed away after a short while. The knife was identified in court, the black cap, the black bag found at the gate was also identified. They took them to Buruburu police station.
The deceased had 2 phones, Nokia with cracked screen and Itel which was black and shiny, she did not have an ID and her line was registered in the name of Laura Akinyi who was her friend.They did not get her phones that night.
She identified her body on 14/4/2019 at Mama Lucy hospital. she was also called to the station on 4/5/2019 and was told about some phones that had been recovered, she saw the deceased Nokia Lumia phone black in colour with a cracked screen, the deceased used to lend it to her to use it.
She was cross examined, she testified that she had never seen the 1 st accused in the neighborhood, that the deceased had her phones that night when they were watching TV. The children went to their house and locked the door from inside. It is locked by a ‘ kijubi ’.The deceased was the one who called out and when she went , she found her sister at the door. The gate and the door were also opened.
She could not say if it was her sister who opened it or not, she did not see anyone leave the gate and she did not see the accused at the plot that time. She testified that the Nokia phone had her friend’s line while the Itel one did not have a line. The Itel phone has never been recovered, she has also not been called to identify any other phone .She was also not called to identify any suspect.
The 2 nd accused counsel cross examined the witness, PW5 stated that they rented 2 rooms in the plot which had 10 rooms with one gate .She kept the key so that she could open it in the morning when she leaves, she then leaves the key in the house. She also closes the gate at 11:00pm and keeps the key in her house in the cupboard next to the door
That the deceased slept on the bed that was next to the wall, she lay on her right side with a knife protruding from her neck. There was also blood on the bedsheets but Vivian did not have blood on her.
The key of the gate was hanging, the door and the gate had not been broken. The deceased did not tell her where she got the Nokia phone and never introduced any boyfriend to her. She stated during cross examination that the children went to sleep and closed the door.
PW6 Vivian Atieno testified that she was in Form 2 and schooled at Golden Gate at the time of the incident. On 10/4.2019 she was in the house with Florence Aoko and her cousins Valery Atieno Whitney Anyango ,Leah ,Adina Trizah .They were in the main house and they went to sleep at about 10:30pm .The room is next to the gate , she slept with Vallary in one bed while Whitney and Leah slept on the next.
That she heard Vallary scream at about 3:00am, on waking up everything was all over the floor , the door was open the main gate was also open while Vallary was on the bed and she had a knife on her neck. The lights were on so she could see well. They also slept with the lights on, the other cousins were on the next bed.
That when she heard Vallary scream she asked her what the problem was , she told her to go call her mother , her aunt Florence rushed to their room had found the deceased on the bed with a knife stuck in her neck. Her aunt called their neighbor, Fredrick who came and removed the knife. Vallary’s handbag was also found outside the gate after she was taken to hospital he knew the handbag and could identify it in court.
She also identified the deceased phone at the police station , it had a cracked screen ,the phone and the knife were also identified in court .She did not see the person who stabbed the deceased.
She was cross examined by the 1 st accused, she stated that she had stayed with her aunt from the time she was in class 4 and she was 7 years, the gate would be closed but at times it remained open. The key was kept by Fredrick or her uncle. That they went to buy rice and found it was open, when they came back Vallary closed the gate but did not put the padlock. This was about 10:00pm.
The deceased also closed the door of the room when they went to sleep, it could not be open from outside. She did not see the accused when she woke up and it was also the first time she was seeing him. That the deceased did not say who stabbed him.
She was further cross examined by the 2 nd accused. Her further evidence was that the deceased slept facing the door while she faced the wall. The knife was stuck on the left side of her neck, she also saw clothes scattered all over the floor. She did not hear anything before the deceased screamed. Further, that she had never seen the 2 nd accused before. The deceased got one phone from the father but she did not know where she got the other phone.
PW7 , Margaret Wahu Maina from the Government Chemist in Nairobi attended court and produced the government chemist report signed on 1/7/2020.She testified that she received several items from No. 75845 CPL Joseph Wanjohi of DCI Kamukunji. A knife with a black handle marked A1 , green piece of cloth placed in a khaki envelop A2 , blood samples in a bottle marked A3 belonging to Vallarie Atieno Apiyo. A high vaginal swab in a khaki envelope marked A4.
They also received several items on 7/5/2019, a black cap marked A5, blood sample in a bottle neck Simon Gitau, blood sample in a bottle neck A7 Dominic Okoth.
On examinations, she found that the knife was heavily stained with blood of human origin, the vaginal swab also stained with blood of human origin but did not have semen, the cap did not have blood stains. The green cloth and the cap did not generate DNA.
The DNA profiles were generated from the knife and vaginal swab and matched the deceased’s samples.
She stated during cross examination that the items were received by someone else and the blood samples were already marked when she received them. The blood samples did not match other samples availed. One was marked Simon Gitau Mwaura. What she received was marked Simon Gitau Mwaura, there was also a typographical error indicated was Dickson Gicho…..she did not receive one marked Simon Gitau Keronye.
She was also cross examined by the 2 nd accused, she stated that from items received the one marked A7 did not matched a DNA profile .
On re-examination , she said that her colleagues Ruth Katho and Elizabeth Oyengo , A6 already came marked as Simon Gitau Mwaura and the deceased name appeared as Vallery Atieno Atieno. This was a typographical error. It did not affect the tabulation and conclusions.
PW8 No 235250 IP Michael Njenga from the Scene of Crime office of Buruburu Directorate of Criminal Investigations testified on 11/10/2021. He has been in the profession since 2015 and holds a Bachelor in Biomedical scientific technology. He was gazetted on 31/7/2015 and his duties entails processing a crime scene which he explained to court.
He stated that in this case, he accompanied CPL Wanjohi to Mama Lucy Kibaki hospital mortuary where they saw the body of Valarie Otieno. That she was allegedly pronounced dead on 11/4/2019 upon arrival after being stabbed at their sitting room at their home. He took 11 photographs but the quality was poor. He referred to 4 photographs, the general view of the body the closer view and the general view of the house where the deceased was allegedly stabbed and Photo 4 a closer view of the blood -stained house.
He produced the photographs as P Exh 10 a 1-4 and the certificate of the electronic evidence as exhibit 10 b.
He was cross examined, he said that he was in the company of CPL Joseph Wanjohi who also identified the body and led him to the house where the deceased was alleged to have been stabbed. That the case was investigated by another officer he found at the scene.
He further stated that the description of the device was not in his report, he did not mention how he extracted the photos from the device but the report reads that the negatives / memory card was inserted into the gadget
Lastly, his evidence was that it was not necessary to mention the gadget used to produce the photographs.
The provisions of Section 200 were read out on 17/3/2023 and directions taken respectively. The accused persons both stated that the case proceeds from where they left it.
PW9 Ambrose Munyoki from Safaricom PLC and a data analyst within law enforcement department testified. He stated that he worked with Safaricom for 8 years. He received a letter dated 14/4/2019 identified as MFI- 11 from DCI Buruburu police station requesting for data of the following phone numbers :-
0704654486 ,
0795188835
The letter required the serial numbers of the phones used to call the numbers for the period between 2/3/2019 and 14/4/2019, the names and ID numbers of the owners were also required.
He found that phone number 0795188835 belonged to Laura Akinyi Odhiambo of ID No 34192024. investigations revealed some extracted data from IMEI phone which were found on another phone number seen on the same hand set –this was number 0710765245 of ID 25530253 belonging to Dominic Owiti used on 12/4/2019 He produced the report on IMEI identification of handset Laura Akinyi Odhiambo as PEXh 12 (a) , the data record PEXh 12 (b) and certificate under Section 106 (A) & (B) of the Evidence Act signed on 9/11/2022 .He did not know the accused .
He was cross examined by the 1 st accused , he testified that his duties entail data extraction and that the data is system generated .The documents produced are in the original form bearing the original stamp of the company .They printed , certified and handed them to the police. He could not tell if Valarie Atieno used the phone number 0795188835 in any manner, he gave original documents to the investigating officer He stated that of the owners for the phones that used the numbers
He was also cross examined by the 2 nd accused , he further stated that on 12/4/2019 phone number 0710765245 was used by Dominic Owiti, the line was inserted in the handset.That there was communication through incoming calls recorded in the data made on 12/4/2019 at 8:15 hrs. The location of the 2 nd accused was Babadogo Kasebuni.
Short message SMS from Laura Akinyi Odhiambo sent on 11/4/2019 at 0339pm -3:39 am and location was Nairobi Calvary Temp. He stated in reexamination that the documents were generated from their system at Safaricom Ltd .
Pw10, No 75854 PC Joseph Wanjohi testified that he was posted at DCI Buruburu police station where he was tasked with general investigations.
He testified that he was on duty on 11/4/2019 and was assigned a case where one Valerie Atieno a resident of City Carton within Buruburu police station area.The report was made by the deceased father who narrated what happened .He visited the scene on 12/4/2019.
He got into the room at plot. The plot had 7 houses on one side and 7 on the other side and 1 main gate.This particular room was on the right side as one gets into the gate and was the 1 st house and a single room.
The room was shared by 4 children who were under the care of Samuel Amenyi their father, the scene was disturbed items were scattered all over, the beddings were not in order and physically it looked like looking for something. The parents narrated that they lived in the next room which was also the sitting room and bedroom .It was in the far end corner of the gate , the next one was near the gate on the left side where the 4 children lived . The parents heard screams from the children bedroom at 3:00am, the mother was the first to move quickly to come to the children room to find out what was happening.
That she realized Valerie Atieno had been stabbed, she called the children father and responders came to the scene and took Valerie to the hospital and was pronounced dead on arrival.
He learnt that the deceased had 2 phones Nokia Lumia 520 , Kytell Kiio MFI2 and MF7.That 0795188835 was the number used with Nokia Lumia phone .He was handed other exhibits recovered outside the plot where the deceased lived :small black bag handbag , black cap crossed with guns design .The mother identified the handbag as belonging to the deceased.
A cream cloth with dried blood stains, blood stained knife found inside the room where the deceased was stabbed.
He undertook further investigations from subscriber of Safaricom Ltd , he wrote to Safaricom Ltd as per letter marked MFI 11.He got response which was that on 12/4/2019 the gadget was inserted with the line Number 0710765245 registered in the name of Dominic Owiti and ID 25530253 .The earlier number was registered in the name of Laura Akinyi ID 34192024.
That the phones had not been recovered from the scene .The investigations showed that Dominic Owiti inserted a line in the Nokia Lumia phone initially used by the deceased. The phone had a broken screen.
That the Dominic Owiti was arrested on 3/5/2019 in his house at Kuria Dudu Ruaraka area, they also found a bag of phones where they recovered the Nokia Lumia among various phones. They prepared an inventory which was signed by his colleague the accused and he also signed it. The accused told them that Simon Mwaura sold to him the Nokia Lumia phone at Ksh 800/= , they went to Simon Mwaura who worked as a phone technician .He admitted that he sold the phone to the 2 nd accused .
They tried to find out how he got the phone, he told them he bought it for Ksh 200/= and that he did not know the name of the person but he could identify the person physically. The two were escorted to Buruburu police station, they did not trace the person who sold the phone to Simon Mwaura. The accused was detained at the police station through a court order.
The witness produced the Nokia Lumia phone, exhibit 2, black handle knife as exhibit 4 and 14 black cap exhibit 5, black bag exhibit 6 receipt for Kytel phone exhibit 7 , exhibit memos dated 23//4/2019 and 7/5/2019 as exhibit 8 (a) and (b) , a cream cloth as exhibit 13 and the inventory as exhibit 15.
He identified the accused in court, he also witnessed the postmortem and the cause of death was stab wound excessive bleeding .The girls sharing the room were between 6 and 10 years old, he could not tell exact date of birth but they were below 15 years old.
He was cross examined, he stated that he recommended the charges to be brought against the suspects in court .The complaint was by PW3 who said his daughter was stabbed at City Carton area .He did not file a report on theft of mobile phone. The 1 st accused was not at the crime scene, a kitchen knife black bag and black cap were lying on the said room and the complainant was there.
He agreed that the gover
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