https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/268

Republic v Kuyu alias Kitengela (Criminal Case E050 of 2026) [2026] KEMC 268 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 268 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E050 of 2026 FM Mulama, RM June 25, 2026 Between Republic Prosecutor and Ali Abubakar Kuyu Alias Kitengela Alias Kindaponda Accused Judgment A. Background. 1.Ali Abubakar Kuyu alias Kitengela alias Kindaponda is charged with 2 offences to wit threatening to kill contrary to section 223(1) of the penal code and malicious damage to property contrary to section 339(1) of the Penal code. The particulars are that on 17/2/2026 at around 9:30am at Sportlight area in Lamu without lawful excuse threatened to Kill Stephen Buya while armed with a panga and that while at it willfully damaged the sidemirror and dashboard of motor cycle registration number KMGU 898G make boxer 125 the property of the said Stephen Buya using the same panga. 2.4 witnesses were called to testify on behalf of the prosecution and at the end the accused was found by this court to have a case to answer and the accused was placed on his defence and was cross examined. The Prosecution’s Case. 3.It is the evidence of the complainant that on the material date at the complainant went to spotlight to deliver some goods to a client and thereafter the delivery went home and while at home which is in the same locality, he heard someone tell him that he doesn’t want to see him in the area because the boda boda riders have made him and his family members to be arrested. 4.The complainant then asked how he was involved in their arrest and the accused responded that they are the ones carrying police officers to that area but the complainant answered that he has never carried any police officers to arrest any of his family members. The accused became agitated with the response and went and took a panga came and threw it at him and in a bid to escape he jumped out of the motorcycle and the panga hit the side mirror and the dashboard and damaged both of them. 5.The complainant’s wife them intervened and she was also not spared as for her she received insults and as if that was not enough the accused charged towards her with the same panga and she was forced to block the same panga thrown at her with a basin that had beans that she was preparing. The accused then promised to kill the complainant. The matter was reported and the accused was later arrested. The complainant was not cross examined. His evidence was later corroborated by Pw 2 Emily Wycliffe who also bore the brunt of the accused person on the material date and time. 6.At the hearing of the matter, the physical motorcycle was presented to court and photos of the same were produced as exhibits. Defence Case. 7.The accused in his defence denied the charges and stated that on the material date and time he was not at the scene of crime but rather with his brother Therbit Abubakar and had gone to firewood and had only one panga that was held by Therbit and the accused had to go and borrow one from Nuru and when he came back he was informed that Therbit had been arrested by police. He nonetheless proceeded to the shamba and came back at 1300hours and after freshening up he was also arrested by police. He asserted that the complaint is motivated by a business grudge and nothing else and that he was not found with the panga. B. Issue for Determination. 8.This court has identified the following issues for determination.a.Whether or not the accused threatened Stephen Buya.b.Whether the accused with malice damaged the property of Stephen Buya. C. Analysis and Determination. 9.To sustain a charge of threatening to kill contrary to section 223(1) of the Penal Code the prosecution is required to establish the following ingredients of the charge:a.That the accused person without lawful excuse uttered words which amounted to a threat to kill the complainant or directly or indirectly causes any person to receive a threat whether in writing or not.b.The uttering of these words must be made in the context that the complainant perceives that he is under threat of losing his life.c.The context must come out in the evidence that will be adduced by the prosecution witnesses and the explanation given by the accused in his defence. 10.In the case of Phenias Njeru Koru vs Republic [2015] eKLR the court in restating the ingredients necessary to prove the charge of threatening to kill stated as follows;“The prosecution was therefore required to establish that the Appellant, without lawful excuse, uttered words which amounted to a threat to kill the complainant. It must also be established that the uttering of these words was made in the context that the complainants perceived that they were under threat of losing their lives. The context must come out in the evidence that will be adduced by the prosecution witnesses and the explanation given by the accused in his defence.” 11.A reading of section 223(1) the threats are not only to be by way of uttering the threat as indicated in the Phenias case, but also when a person directly or indirectly causes any person to receive, a threat, whether in writing or not. Such is this case herein. 12.In this matter, no threatening words were uttered by the accused but the accused did actions that made the complainant feel or perceive that his life was in danger or rather that there was a threat to his life. 13.It is the evidence of complainant that on the material date after delivering some goods to his customer went home and soon thereafter heard someone tell him that he does not want to see him in the area and he asked him why yet he was at his home and the accused informed him that boda boda riders in the area have made him and his family members to be arrested and the complainant then sought to know how he contributed to their arrest and the accused answered that the complainant is among those carrying police officers to that area. 14.The complainant denied any involvement and it is this denial that got the accused agitated, went and came back with a panga and threw the panga at him while he was still on top of his motor cycle. He jumped off the motorcycle to safety and as result the panga landed on the motor cycle’s side mirror and dashboard. 15.From the circumstances, it is clear that the accused intended to throw the panga to the complainant and injure him. As if that is not enough, the complainant’s wife intervened and her too was not spared either, he picked the panga and also attempted to attack her and she was quick to block the panga using a basin that had beans. As if that was not enough the accused despite all that fracas, promised to kill the complainant. 16.From the circumstances, it is clear to my mind that the accused had all intents and purposes to injure the complainant for the reason that he is among those who have in one way or the other caused the arrest of his family members and furthermore at the end of it all promised to kill the complainant. At this point it suffices to note that the complainant was not cross examined and as such the evidence by the complainant remains unchallenged. 17.Further the occurrences of the material day are further corroborated by Pw 2 who was at the scene of the crime and based on what she observed and seen and even experienced as she was not spared either made her perceive them as threats not only to her husband but to herself also. 18.The accused in his defence, did not explain circumstances under which he acted the manner in which he did instead he went on a frolic of his own removing himself from the scene of crime and allege that he was with one Therbit and were intending to go and collect firewood. He never called the said Therbit as a witness and as such his evidence was not corroborated. It is thus the finding of the court that the defence amounted to mere denial and I proceed to dismiss the same. 19.There being no plausible defence to the actions by the accused person this court finds that the actions by the accused of throwing a panga to the complainant and thereafter promising to kill the complainant amounted to a threat to the life of the complainant and this can easily be deduced from the evidence on record and the context from which the complainant and his wife perceived the same as a threat and as such the ingredients have been proved to the required standards. The prosecution has indeed proved its case as against the accused person in the first count. 20.On count 2, it is clear from the evidence and Pexh 1(a to e) that the motor cycle registration number KMGU 898G make boxer 125 was destroyed by the accused when he threw the panga towards the complainant who was on top of the said motorcycle. The panga was destined to the complainant but he was quick to evade leading to it destroying the motorcycle. 21.The fact that the motor cycle was damaged by the accused person has not been denied and/or challenged by the accused person and as already found, his defence had no probative value while cross reference to the weight of the prosecution’s evidence. 22.I therefore find that indeed it is the accused who caused the damage to the complainant’s motorcycle the extent of which has been proved by the court seeing the physical motorcycle in court and the photos of the said motor cycle. Count 2 is similarly proved to the required standards. D. Conclusion and Disposition. 23.The accused is thus guilty of the offence of threatening to kill contrary to section 223(1) of the Penal Code and malicious damage to property contrary to section 339(1) of the Penal code and he is accordingly convicted in each count under section 215 of the CPC. 24.Orders accordingly. DATED AND DELIVERED AT LAMU LAW COURTS THIS 25TH DAY OF JUNE 2026.F.M. MULAMARESIDENT MAGISTRATE.In the presence of:Court Assistant:- Abuswaleh.Idris Tomno for DPP.Ali Abubakar Kuyu alias Kitengela alias Kindaponda.