https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/232

Republic v Cheruiyot (Criminal Case E2286 of 2025) [2026] KEMC 232 (KLR) (7 May 2026) (Judgment) Neutral citation: [2026] KEMC 232 (KLR) Republic of Kenya In the Nakuru Law Courts Criminal Case E2286 of 2025 VO Adet, SPM May 7, 2026 Between Republic Prosecutor and Cosmas Kipngeno Cheruiyot Accused Judgment Introduction 1.The accused person, Cosmas Kipngeno Cheruiyot, is charged with the offence of threatening to kill contrary to Section 223(1) of the Penal Code. It is alleged that on the 21st day of September 2025 at about 2130 hours at Tebeswet Village in Muache within Nakuru County, he unlawfully uttered the words “nitakuua Wewe Baba Leo” while armed with a rungu, thereby threatening to kill Joseph Kipkemoi Rogito. 2.The accused person pleaded not guilty to the charge, thereby necessitating a full trial. The prosecution proceeded to call witnesses in an effort to discharge the burden placed upon it by law. Upon the close of the prosecution case, the accused was placed on his defence but elected to remain silent. The Court is now called upon to determine whether the charge has been proved beyond reasonable doubt. The Prosecution’s Case 3.The prosecution called three witnesses to support its case, beginning with PW1, Joseph Kipkemoi Rogito, who is the complainant and father to the accused. He testified that on the night of 21st September 2025, the accused approached him while armed with a stick and was making noise. 4.PW1 stated that during the incident, the accused uttered threatening words directed at him, causing him to fear for his life and safety. He described the accused as aggressive and confrontational at the time. 5.He further testified that the accused’s conduct alarmed him, prompting him to report the matter to the area chief the following day. He viewed the threats as serious and not mere idle talk. 6.PW1 informed the Court that attempts were made to locate the accused following the report, but he fled from the area upon learning that he was being sought by authorities. 7.He stated that the accused was eventually apprehended on 30th October 2025 and taken to the police station where he was formally charged with the present offence. 8.The witness emphasized that the accused is his third-born son, thereby placing the dispute within a domestic setting, but maintained that the threats were genuine and frightening. 9.PW1 added that despite the familial relationship, he felt compelled to report the matter because his life was in danger. 10.PW2, Agnes Rogito, who is the mother to the accused and wife to PW1, corroborated the testimony of PW1 and confirmed that the accused is indeed their son. 11.She testified that on the material night, the accused came home and threatened his father in her presence, confirming that she witnessed the incident firsthand. 12.PW2 further stated that the matter was reported to the chief the following day and that the accused was later apprehended by police officers. 13.She added that the accused had a tendency of threatening his parents, suggesting that his conduct was recurrent rather than isolated. 14.PW3, No. 2007110327 PC Dominic Bungei, testified that on 30th October 2025, he received information from the area chief regarding a man who was threatening his parents. 15.He stated that together with another officer, they proceeded to arrest the accused person and escorted him to the police station. 16.PW3 testified that he recorded statements from the complainant and witnesses and subsequently preferred the charge against the accused. 17.He confirmed that no difficulties were encountered during the arrest and that the accused was thereafter processed in accordance with the law. 18.It was notable that throughout the hearing, the accused did not cross-examine any of the prosecution witnesses despite being afforded adequate opportunity by the Court. The Defence Case 19.At the close of the prosecution’s case, the Court found that the accused had a case to answer and placed him on his defence pursuant to Section 211 of the Criminal Procedure Code.The accused elected to remain silent and did not call any witnesses. Issues for Determinationi.Whether the accused uttered the alleged words threatening to kill PW1.ii.Whether the words uttered constituted a clear and unequivocal threat to kill.iii.Whether the threat was made without lawful excuse.iv.Whether the prosecution proved its case beyond reasonable doubt. Analysis of the Issues 24.The offence of threatening to kill is created under Section 223(1) of the Penal Code and requires proof that the accused knowingly and without lawful excuse uttered words threatening to cause death. In Kennedy Kigen Leting v Republic [2020] KEHC 3620 (KLR), the Court clarified that the essence of the offence lies in the act of uttering the threat itself. The first issue relates to whether the accused uttered the alleged words. PW1 testified that the accused threatened him during the incident, and the evidence of PW1 is direct and places the accused at the scene as the person who uttered the threatening words. PW2 corroborated the testimony of PW1 by confirming that she witnessed the accused threaten his father on the same night. 25.Such corroboration strengthens the prosecution’s case, as was observed in Kiarie v Republic [1984] KLR 739 where consistent evidence from multiple witnesses enhances credibility. The accused did not challenge the testimony of PW1 or PW2 by way of cross-examination, and failure to cross-examine witnesses may lead the Court to accept their evidence as uncontroverted. In this case, the prosecution’s evidence on the utterance remains intact and unchallenged, and the Court is therefore satisfied that the fact of uttering the alleged words has been proved. 26.The second issue concerns whether the words used constituted a clear threat to kill. The words alleged to have been uttered were “Nitakuua Wewe Baba Leo,” which translate to “I will kill you today, father.” These words are explicit and convey an immediate intention to cause death. In Peter Murauko Matumo v Republic [2021] eKLR, the Court emphasized that the words must be clear and unequivocal, and similarly, in Republic v Mwangi [2023] KEHC 524, it was held that vague or ambiguous statements cannot sustain a conviction. 27.In the present case, the threat is neither vague nor ambiguous. The words directly refer to killing and identify the intended victim, and the threat is immediate in nature, given the use of the word “today.” The presence of a rungu further contextualizes the seriousness of the threat. In Phenias Njeru Koru v Republic [2015] KEHC 104 (KLR), the Court held that while a weapon is not essential, it strengthens the inference of seriousness. The Court finds that the words used constituted a clear threat to kill. 28.The third issue is whether the threat was made without lawful excuse. The accused offered no explanation for his conduct as he chose to remain silent. While the right to silence is constitutionally protected, it leaves the prosecution’s evidence unrebutted. In Republic v Jagani & Another [2001] KLR 590, the Court held that uncontroverted evidence may properly be relied upon. No evidence was presented to suggest any justification or excuse for the accused’s actions, and the Court finds that the threat was made without lawful excuse. 29.The final issue is whether the prosecution proved its case beyond reasonable doubt. The burden of proof lies with the prosecution as affirmed in Woolmington v DPP [1935] AC 462. In the present case, there is direct evidence from PW1 and corroborative evidence from PW2, and the police testimony supports the sequence of reporting and arrest. There are no material inconsistencies in the prosecution’s case, and the evidence presented is coherent and credible. 30.The accused’s silence leaves the prosecution’s case unchallenged, and the Court finds no reason to doubt the veracity of the witnesses. The prosecution has established all the essential elements of the offence, and the standard of proof beyond reasonable doubt has been met. Determination 31.Having carefully considered all the evidence on record and the applicable law, this Court finds that the prosecution has proved its case against the accused beyond reasonable doubt. Accordingly, the accused, Cosmas Kipngeno Cheruiyot, is hereby found guilty of the offence of threatening to kill contrary to Section 223(1) of the Penal Code and is convicted pursuant to the provisions of Section 215 of the Criminal Procedure Code accordingly. JUDGMENT DATED, SIGNED AND DELIVERED THIS 7TH DAY OF MAY 2026SIGNED V. O. ADETSENIOR PRINCIPAL MAGISTRATEIn PresenceAccused PersonMs. Rogito For StateMs. Chemutai As The Court AssistantMs. Rogito: He can be treated as a first offender.Accused: I pray for forgiveness.Court: I do order for a presentence report. Mention the 28th day of May 2026.