https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/213

Republc v Kituyi (Criminal Case E2137 of 2021) [2026] KEMC 213 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEMC 213 (KLR) Republic of Kenya In the Bungoma Law Courts Criminal Case E2137 of 2021 RN Maloba, SPM July 1, 2026 Between Republc Prosecution and Josephine Naliaka Kituyi Defendant Judgment The charges per the charge sheet 1.The accused person, Josephine Naliaka Kituyi, was charged with three multiple offences which were all preferred under the Penal Code. These were as follows;In count 1- Attempted murder contrary to Section 220 (a) of the Penal Code. The particulars were that on 29th October 2021 at about 0600 hours at Matisi village, Sichei Location, Bungoma Central, she attempted to kill Dickson Juma Wekesa.In count II- Grievous harm contrary to Section 234 of the Penal Code. The particulars were that during the same incident, she unlawfully did grievous harm to Dickson Juma Wekesa.In count III- Threatening to kill contrary to Section 223(1) of the Penal Code. The particulars that during the same incident, she caused Dickson Juma Wekesa to receive a text message stating ‘Kwangu usikanyage, nitakuua, I promise”, thereby threatening to kill him. 2.The accused pleaded not guilty to all the charges and the matter proceeded to full trial. Prosecution’s case. 3.The prosecution called six witnesses. The first was the complainant Dickson Juma Wekesa (PW1) who testified that he previously cohabited with the accused for one year before they separated. He explained that on 20th October 2021 at about 11; 48a.m, he received a text message from the accused stating, “kwangu usikanyage nitakuua I promise”. He further testified That on 28th October 2021, he received another text message from her saying “kumbuka mtoto ameturn one year, nitampea sumu na nijiue pia”. 4.He added that on 29th October 2021, the accused came to his rural home, entered the bedroom of his house and picked his phone. When he questioned her over it, she became hostile, threw a curtain at him and stabbed him in the eye using a knife. 5.After the incident, he reported the matter to the police and sought treatment at Chwele Sub County Hospital before being referred to Bungoma County Referral Hospital. Subsequently, he was referred to Sabatia Eye Hospital where he underwent surgery for the removal of his eye. 6.The mother to the complainant one Gladys Nekesa (PW2), testified that she knew the accused as his girlfriend. She explained that on the morning of the material day, she was taking some tea to the complainant when she heard him quarrelling with accused. Thereafter, accused saw accused throw a curtain on the complainant’s face before removing a knife from underneath her skirt which she then used to stab him on the eye. The complainant screamed in apparent pain but she remined quite all through. When she saw her, she waved the knife towards her and threated to stab her too but she managed to doge her by stepping backwards. She maintained that accused came with the knife as none was at the complainant’s house at that time. 7.Jacob Wanyama (PW3) , an uncle to the complainant testified too. He stated that shortly after the accused had inquired about the complainant’s whereabouts, he heard some screams and rushed to the scene where he found the accused holding a knife as the latter lay on the ground bleeding. He subsequently escorted the complainant to the police station and thereafter to the hospital. 8.Geoffrey Wanjala (PW4), a clinical officer at Chwele Sub County Hospital produced the treatment documents and P3 form which were filled when the complainant presented there for treatment. He noted that the complainant had lost an eye due to assault. His opinion was that the injuries were caused by a sharp object. He classified the injury as “maim.’’ 9.The case was investigated by PC Hillary kerich (PW5) of Chwele Police Station. He confirmed occurrence of the incident and accused person’s arrest over the same. She was later charged in connection with the same. 10.IP Elisha Chirchir (PW6) was a Digital Forensic Examiner attached to the Di rectorate of Criminal Investigation Headquarters, Nairobi. He testified that he extracted data from a mobliel mobile make Neon Ray which was paired with number 0704219984 and recovered sixteen text messages. These messages were amongst the ones which were allegedly received by the complainant on his phone from accused per count 111. On cross-examination, the officer admitted that he did not know the subscriber of the mobile phone from which those messages were sent. Defence case. 11.The accused gave sworn testimony. She maintained her innocence and testified that the complainant was her husband with whom she had one child. They had cohabited for 3 years. She stated that on the material day, she dropped their child at the complainant’s home so she could go to work. The two were separated at that time. When she reached his house, she found him alone at the door. She then proceeded to his bedroom where he found his phone light flashing. She picked it so she could go with it to work in order to use it to scan his sister’s identity card but he objected and ordered her to put it down. 12.As a result, the complainant became angry and assaulted her very severely. In an apparent retaliation, she kicked him whereupon, a fight ensued. They wrestled with each and rolled on the floor for a while until the time she got an opportunity to free herself whereupon she ran out to the sitting room. 13.On reaching there, she met PW2 by the door and soon thereafter, the complainant followed her there while holding his stomach. She explained that she did not know how the complainant sustained the stab injury on his stomach. 14.She was categorical denied occasioning the stab injury on him during the incident or sending any threatening messages to him via phone. 15.She added that she was alone with the complainant in the bedroom. She added that nobody could see what was going on inside the bedroom from the sitting room. Issues for determination. 16.Having considered the evidence on record, the issues arising for determination are:a.Whether the complainant received any threatening messages on his phone on 20/10/2021 Whether the accused sent threatening messages to the complainant as alleged.b.Whether the said messages were sent by accused person as alleged.c.Whether the injury which was sustained by the complainant on the 29th of October 2021 amounted to grievous harm.d.Whether the injuries sustained by the complainant amounted to grievous harm.e.Whether the said injury was inflicted on him unlawfully.f.Whether the accused person was the perpetrator in respect to the same.g.Whether the offence of attempted murder was committed against the complainant on 29/10/2027.h.Whether the accused was the perpetrator. ANALYSIS AND DETERMINATION 17.It is trite law that the burden of proving a criminal charge rest entirely upon the prosecution and never shifts to the accused person. The standard of proof is proof beyond reasonable doubt- see Whoolmington v. DPP (1935) AC 462. The court will now embark on establishing whether the prosecution met the standard of proof in this case on all their charges against the accused person as hereinbelow. 18.Count II and 1V– Threatening to kill contrary to section 223(1) of the Penal Code. 19.In Okutto v Republic (Criminal Appeal E016 of 2024) [2024] KEHC 10044 (KLR) (7 August 2024) (Judgment) the court held that for the offence of threatening to kill to be established, the prosecution must prove that the accused knowingly uttered or caused the complainant to receive words amounting to a threat to kill. 20.Similarly, the court in Abdiaziz Yussuf Abi Republic [2020] KEHC 3004 (KLR), observed that that that the accused without lawful excuse uttered words which amounted to a threat to kill the complainant and from which, he must have perceived to be under threat of losing his life. 21.PW1 testified hat he received a text message from the accused stating “kwangu usikanyage nitakuua I promise”. His evidence was corroborated by PW6, the Digital Forensics examiner, who recovered the offending and troubling message from mobile phone number 0704219984. That mobile phone belonged to the complainant. Although accused denied sending any threatening message to the complainant and there was no documentary evidence to that effect, the court’s finding is that because the two were in a domestic relationship, they well knew each other’s phone details as to be able to identify the source of any such messages. It was clear that they had a child together per accused person’s own admission. In one of the messages in question, an issue concerning the child arose. I note that accused just gave a general denial of the said messages without elaborating more on any of them in particular. I am alive to the fact that she was under no duty to prove or disapprove anything but, where a specific fact has been laid by the other side and proved to have occurred as was the case herein, there was need for the accused go a little further and address them point by point (seriatim). 22.The fact that the messages were sent more than once, means that the threats were real as to have been able to cause some apprehension on the part of the complainant about losing his life. 23.In the circumstances, I would find her defence on the same to amount to a mere denial and the court is satisfied that the words used constituted an express threat to kill and that the threat originated from the accused. 24.Thus, the prosecution did discharge its burden of proof on count 111 as well as Count 1V beyond reasonable doubt through both oral testimony of the complainant and forensic evidence which was tendered by PW6. COUNT I – Attempted murder contrary to section 220(a) of the Penal Code. 25.The court has carefully considered the totality of the evidence. Before the incident, the accused had earlier expressly threatened to kill the complainant through text messages. She admitted to have been at the complainant’s home on the material day and to have entered into his bedroom. It was in the morning hours and the complainant was still in bed. 26.Upon a disagreement over his phone, she confronted him and, in the process, drew a knife and stabbed him on the left eye. The knife was identified and produced in court as an exhibit. Both the complainant and his mother who witnessed the incident affirmed that the same was used by accused to stab and injure him on the said eye. 27.Additional evidence on the injuries was adduced by way of medical records by PW4. His evidence corroborated the fact that the complainant eventually lost the injured eye. His expert opinion evidence was that the injury amounted to grievous harm in terms of its degree. 28.In her defence, accused indicated that she and accused quarreled then fought over the phone which was taking in order to go and use to scan an identity card for his sister. She added that they wrestled and rolled on the floor of the bedroom and afterwards, she noticed that the complainant was bleeding from his stomach. However, she could not tell how that arose. All she knew was that she was eventually able to free herself and ran outside the bedroom to the sitting room where she met PW2. 29.That defence has been weighed against the prosecution evidence on record. In the considered view of the court, there was corroboration of what really transpired between them during the incident. Of course, she attempted to dampen PW2’s evidence by saying that it was not possible for one to see what was happening in the bedroom from the sitting room but, from the totality of things, it is evident that the said witness actually witnessed the incident. 30.Concerning the same, PW2 said that she had gone to take tea to the complainant when she apparently chanced on the incident. She stated categorically that when she reached there, she heard the complainant screaming and checking, she saw accused throw a curtain on his face before she went on to remove a knife underneath her skirt and stab him on the eye. She added that when she screamed for help, accused responded by threatening to stab her too. Later, she handed over the knife them at the intervention of other people who responded to the screams before she left the scene unbothered about the complainant’s injury. 31.From the totality of the evidence, the incident happened in the sitting room and not in the bedroom contrary to what was explained by the accused. According to the complainant, after accused arrived with the baby, he put him on the chair then went to the bedroom and picked his phone. The stabbing happened afterwards in the she returned to the sitting room with his phone. Due to this, the court accepts that PW2 was actually a witness to the incident. 32.Therefore, I would find that accused was the culprit as far as that stab wound was concerned. I reject her defence on the same and in fact hold that she indeed had the knife with her when she arrived at the complainant’s house on the fateful day and went on to use to cause grievous harm to him. Contrary to her allegation that the complainant was bleeding from the stomach when she saw her emerge from the bedroom after the incident, he in fact had no injury at all on his abdomen. The P3 form shows that the only injury he suffered was the one on the eye. 33.Applying the principles enunciated in R v Tubere s/o Ochen (1945)12 EACA 63, the court is entitled to infer intention from the nature of the weapon used, the part of the body targeted, the manner in which the weapon is used and the conduct of the accused before and after the attack. The court finds that the prior threats which she made on the life of the complainant coupled with her act of arming herself with a knife and ultimately harming him in a grievous manner on the eye, was a clear demonstration that she intended to cause death to him. On the contrary, the complainant was not armed and so, the issue here is not one of self defence. That means that the fact that she alleged that the two fought afforded her no respite in the circumstances more given that he 34.The prosecution therefore proved all the ingredients of the offence of attempted murder beyond reasonable doubt. Count II – Grievous harm contrary to section 234 of the Penal Code. 35.Although the prosecution established that the complainant sustained grievous harm, it is my finding that the said injury arose from the same act which constituted the offence of attempted murder already determined above. 36.Because of that, a separate conviction for grievous harm would amount to duplicity of charges and punishment. Thus, without much ado, I would acquit the accused on the same forthwith. Conclusion 37.Upon evaluating and analysis evidence on the record, the court’s findings are as follows; 1.The accused is found guilty of count I in respect to the offence of attempted murder contrary to section 220(a) of the Penal Code, and is convicted of the same in line with Section 215 of the CPC. 2.Considering that the court has convicted accused under count 1, she is acquitted of grievous harm contrary to section 234 of the Penal Code in line with section 215 of the CPC. to duplicity of punishment. 3.The accused is found guilty of Count III and IV of, threatening to kill contrary to Section 223 (1) of the Penal Code. Accordingly, she convicted of both in line with section 215 of the Pena Code. Orders accordingly DATED & DELIVERED AT BUNGOMA THIS 1ST DAY OF JULY 2026In the presence of;Pros- Ms. AchiengC/Asst- Ms. Jacinta/ Mr. AggreyAccused in personMr. Wamalwa R w/b for the complainantHON. R.B.N MALOBA,SENIOR PRINCIPAL MAGISTRATE.