https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/411

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **CRIMINAL CASE NO E064 OF 2023** **REPUBLIC.......................................................................................................PROSECUTION** **VERSUS** **PATRICK KYENGO MUEKE.………..............................................................................ACCUSED** **JUDGMENT** **THE CHARGE** Patrick Kyengo Mueke (hereinafter referred to as the accused person) is charged with two counts under the Penal Code. In the first count, the accused person is charged with the offence of threatening to kill contrary to section 223(1) of the Penal code. The particulars of the offence are that on 10/1/2023 at Ngaa village in Nzaui Sub-county, within Makueni County, the accused person without lawful excuse uttered words, “I will kill you”, threatening to kill Phidelis Nthenya Mulinge. In the second count, the accused person is charged with the offence of creating a disturbance in a manner likely to cause a breach of the peace contrary to section 95(1) of the Penal Code. The particulars of the offence are that on 10/1/2023 at Ngaa village in Nzaui Sub-county within Makueni County, the accused person created a disturbance in a manner likely to cause a breach of the peace by uttering that he would chase Phidelis Nthenya Mulinge away from her homestead, while armed with a machete. When the plea was taken, the accused person pleaded not guilty to both counts. The matter was then set down for hearing. **THE EVIDENCE** ***The Prosecution case*** The prosecution case was wholly heard by another Magistrate who was subsequently transferred. When the matter was placed before me, directions were taken to the effect that the matter proceeds from where it had reached. The prosecution called a total of four (4) witnesses in a bid to prove their case against the accused person. PW 1 Phidelis Nthenya Mulinge (hereinafter referred to as the complainant) testified that in March, 2023 she decided to close a footpath at his home. That her brother in-law and two men re-opened the path. The complainant asked them why they had done so but they pointed at her and asked her to leave. The complainant reported to another brother in-law and later reported to the police. The complainant appears to have identified the accused person as one of those who had re-opened the path. PW 2 Marko Muinde Mueke testified that he saw the accused person with a machete and that the accused person was with three other men. That the accused person told the complainant to open the path or else he would cut her using a machete. PW 2 stated that the accused person was his younger brother. That he went to the scene and saw the accused person with a machete. According to PW 2, the incident occurred on 10/3/2023. PW 3 Titus Muindi testified that on 10/1/2023 at about 7:00 am he heard noises then rushed and told PW 2 who is his father. PW 2 sent the witness to go and see what was happening. PW 3 stated that he went and found the accused person telling the complainant that if she did not open the path, he would kill her. PW 3 went home and returned with his father. They pleaded with the accused person but the latter did not listen. The witness stated that he found the accused person holding a machete. PW 4 Police Constable Joseph Nzuki testified that he was the investigating officer herein. That the complainant made a report on 10/1/2023 that the accused person had threatened to kill her while armed with a machete. The investigating officer arrested the accused where after he was charged. ***The Defence Case*** When the accused person was placed on his defence, he gave a sworn testimony and called one other witness. The accused person stated that the dispute concerned an access road which had been blocked by the complainant and the accused person’s siblings. The accused person reported to the Assistant chief who sent the village leader and members of community policing to the scene. The accused person stated that their mother confirmed that there was an access road and directed that the same be re-opened but PW 2 declined. The accused person stated that nothing else happened. The accused person stated that he travelled to Mariakani and returned home after about one month. He was informed by his wife that the police were looking for him. The accused person went to the police station to find out why the police were looking for him and that is when he was arrested. At the police station, the accused person was informed that he wanted to kill his family members because of land and an access road. That he was in police custody for one week before being brought to court. DW 2 Colleta Wayua Munyao testified that she was a village elder and neighbour to the accused person. The witness stated that on 29/12/2022 she was called on phone and informed that the road to the river had been blocked. She did not know who had called her but later, she received a call from the Assitant chief who informed her that there were chaos at the home of Kyengo. The Assistant chief asked the witness to go and find out what the problem was. The following morning, the witness in the company of a Nyumba Kumi elder proceeded to the home in issue. They found the complainant and asked her to step out of the house so that they could talk but the latter declined. That the complainant stated that there was no access road at the place. DW 2 stated that the complainant called PW 2 who went to the scene and caused havoc. The witness and her team left. The following day, the witness went to the home of PW 2 and spoke to their mother. The mother tried to re-open the road but PW 2 and his son stopped her. **FACTS NOT IN DISPUTE** Having considered the evidence on record, I find that the following facts are not in dispute: 1. The accused person and the complainant are related by marriage and well known to each other; 2. There was a long-standing dispute or bad blood between the accused person and his siblings as well as the complainant; **MAIN ISSUES FOR DETERMINATION** In my view, the main issues for determination are as follows: 1. Whether the accused person threatened to kill the complainant on the material day; 2. Whether the accused person created a disturbance in a manner likely to cause a breach of the peace on the material day; 3. Whether the prosecution has proven its case against the accused person to the required standard. **ANALYSIS AND DETERMINATION** I have carefully considered the evidence on record as well as the law applicable. In my considered view, for the case to be proved against the accused person, the prosecution must have proved the following beyond reasonable doubt: 1. That the offence complained of was indeed committed; and 2. That the evidence links the accused persons to the offence complained of. It is my further opinion that in order to show that the offence complained of was indeed committed, the prosecution must establish the key ingredients of the offence. In order to prove their case, the prosecution must offer credible and irrefutable evidence in support of each element of a crime. I will begin with addressing the second count. While this matter was pending, the Constitutional and Human Rights Division of the High court at Nairobi (Mwamuye J) in the authority of ***Law Society of Kenya v Director of Public Prosecutions & 2 others; Kebaso (Interested Party) [2026] KEHC 1486 (KLR),*** while dealing with the question of the constitutionality of section 95(1) (b) of the Penal Code held as follows: ***“A rigorous examination of the text of Section 95(1) (b) reveals a provision riddled with fatal indeterminacy. The offence is committed when a person ‘brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace.’ Each of the operative phrases is a vessel of ambiguity. What constitutes a ‘disturbance’ in a legal sense? Does it require noise? Commotion? Emotional upset? Could a silent, powerful political slogan on a placard create a ‘disturbance?’ The phrase ‘in any other manner’ offers no limiting principle, expanding the offence to an open-ended array of behaviours. Most critically, what does ‘likely to cause a breach of the peace’ mean? ‘Likely’ implies a probability, but of what degree? Is it a mere possibility, a more probable than not chance, or a virtual certainty? And what is the constitutional definition of a ‘breach of the peace?’ Does it require actual violence, or merely a threat thereof, or could it encompass any disruption of public tranquillity? The Penal Code is silent. The Respondents’ defence, relying on cases like Mule v Republic (supra) and Ikise Ole Neusiet v Republic (Supra), is unpersuasive. Those cases do not define the terms. They merely assume their meaning and proceed to apply them to specific facts. They illustrate the application of vagueness, they do not cure it. Asserting that courts have interpreted the provision for decades confuses the existence of precedent with the existence of clarity. A string of cases applying a vague law does not make the law any less vague, it merely demonstrates a history of judicial officers filling the legislative void with their own subjective judgments. This is precisely what the principle of legality seeks to avoid.”*** The court further held: ***“Therefore, Section 95(1)(b) fails to qualify as a law "provided by law" as required by Article 24(1), as it lacks the essential quality of precision, and it directly infringes the principle of legality under Article 50(2)(n).”*** In conclusion, the court made the following orders, among others: 1. A declaration be and is hereby issued that Section 95(1)(b) of the Penal Code, Cap 63 of the Laws of Kenya is inconsistent with and in contravention of Articles 33, 50(2)(n) and 24 of the Constitution of Kenya, 2010, and is therefore unconstitutional, **null and void ab initio**; 2. A declaration be and is hereby issued that the continued enforcement, application, or reliance upon Section 95(1)(b) of the Penal Code by the Respondents, their agents, servants, or any person acting under their authority, against the Interested Party, Morara David Kebaso, or any other person, is unconstitutional, unlawful, and invalid. The question that I wish to pose is whether this court can proceed to decide on the guilt or otherwise of the accused person based on section 95(1) (b) of the Penal court in view of the above stated authority. By virtue of the doctrine of stare decisis, I am bound by the decisions of the High Court. In the case of ***Union of India v Raghubir Singh, [1989] 2 SCC 754***, The Supreme Court of India held that the benefit of the doctrine of precedent is to provide certainty, stability, predictability and uniformity. That it increases the probability of judges arriving a correct decision, on the assumption that collective wisdom is always better than that of an individual. It also preserves the institutional legitimacy and “adjudicative integrity. It provides equality in treatment and thus prevents bias, prejudice and arbitrariness and avoids inconsistent or divergent decisions. It prevents uncertainty and ambiguity in law. In ***State of U.P v Ajay Kumar Sharma, (2016) 15 SCC 289)***, the Supreme Court of India observed that the courts have to nurture, strengthen, perpetuate and proliferate certainty of law and not deracinate its clarity. With respect, I agree. The use of precedent is an indispensable foundation upon which to decide what is the law and its application in individual cases. It provides a basis for orderly development of legal rules. In ***Dwarikesh Sugar Industries Ltd v Prem Heavy Engineering Works (P) Ltd, AIR 1997 SC 2477***, the Supreme Court of India held that: ***“When a position, in law, is well settled as a result of judicial pronouncement of the Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.”*** The above authority emphasizes the importance of the doctrine of precedent. The decisions of the High court bind the courts below it, unless overturned by a more superior court. The holding of Mwamuye J was that section 95(1) (b) of the Penal Code was null and void *ab initio*. My view is that where an accused person is charged under a statutory provision that is later declared unconstitutional, null and void *ab initio* by a superior court, the effect on a pending criminal case (even one awaiting judgment) is generally fatal to the prosecution. The provision is treated as having never existed in law. It is not merely invalid from the date of judgment but void from inception. This principle flows from constitutional supremacy under Article 2 of the Constitution of Kenya. The court cannot convict under a provision that is deemed never to have existed. Proceeding to judgment would amount to enforcing a non-existent offence. A criminal court derives its jurisdiction from valid law. Once the provision is void, the court effectively loses jurisdiction to determine the offence. Any conviction would be a nullity. In view of the foregoing, I refrain from discussing the merits or demerits of the second count. I now move to the first count. Section 223(1) of the Penal Code provides as follows: ***"Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years".*** In the case of ***Nancy Wanja Githaka v Republic [2015] eKLR,*** the court held that the ingredients of the offence of threatening to kill are: 1. Existence of a threat to life; 2. Cause a person directly or indirectly to receive the threat. I would add that as a key ingredient, the threat must have been made without lawful excuse. In my opinion, the threat could be by way of words uttered or written or by any other means calculated to cause a threat to the person whether directly or indirectly. In ***Phenias Njeru Koru v Republic [2015] eKLR***, it was held that the ingredients of the offence consist of the following: - 1. Without lawful excuse utters; 2. Or directly or indirectly causes any person to receive a threat; 3. The threat may be in writing or verbal; 4. It must be a threat to kill any person. In ***Baya Lwambi Hare v Republic [2017] eKLR***, the court observed that in such cases, the prosecution needs to prove that a threat had been made and that the threat was made without lawful excuse and had reached the victim. The particulars of the charge indicate that the accused person uttered the following words: ***"I will kill you.”*** From the particulars of the charge, it is not clear in which language the words were uttered. The complainant testified that the incident occurred in March, 2023. This is contrary to the particulars of the offence which indicate that the incident occurred on 10/1/2023. The accused person was arrested on 21/1/2023 as per the charge sheet and brought to court on 23/1/2023. Either the complainant was seriously mistaken or she testified to different circumstances. According to the complainant, the accused person and two other men appeared while the complainant was at her home. That they re-opened the road she had blocked and when she inquired, they pointed at her and ordered her to leave. The complainant did not state what was used to point at her. She did not state that the accused person threatened to kill her. Her testimony indicates that she called her other brother in-law and informed him that the accused person and two other men had “threatened her with a machete.” From the complainant’s testimony, it appears that apart from the accused person and the two other men, the complainant was the only one present. According to the complainant, she called PW 2 but PW 2 sent his son who testified as PW 3. That when PW 3 appeared, he was attacked by the accused person and the two other men. The complainant did not mention that PW 2 ever appeared at the scene. PW 2 testified that he saw the accused person armed with a machete and that the accused person was in the company of three other men. That the accused person asked the complainant to re-open the road or else he would cut her using a machete. PW 2 stated that it was the complainant who had called her and when he went to the scene, he found the accused person armed with a machete. The testimony of PW 2 was that the complainant informed him that the accused person wanted to cut her using a machete. When PW 2 was cross-examined by the accused person, he stated that the incident occurred on 10/3/2023. On the other hand, PW 3 testified that the incident occurred on 10/1/2023. His testimony was that he heard noises then he informed PW 2. That PW 2 then sent him to go and found out what was happening. PW 3 stated that when he reached the scene, he found the accused person telling the complainant that if she did not open the path, he would cut her. That PW 3 pleaded with the accused then left to inform PW 2. PW 3 did not state that he was attacked by the accused person. In my considered view, for the prosecution to allege that words uttered constituted a threat to kill, the said words must be clear and unambiguous. The words must leave no doubt that there was a threat to kill. If the particulars of the charge are anything to go by, then the words allegedly uttered were a clear threat to kill. I have already indicated that there appears to have been bad blood between the complainant and the accused person. Where there is an existing grudge or bad blood between parties, the court ought to consider the evidence and in particular the prosecution evidence with great caution as parties are known to resort to criminal sanctions in a bid to settle old scores. It is also to be remembered that existing grudges or disputes between parties are a recipe for chaos. In the authority of ***Ayub Muchele v Republic [1980] KLR 44***, Trevelyan and Sachdeva, JJheld that: ***“Just as animosity is a factor which is properly to be taken into account where required, so is lack of animosity. We see nothing wrong in an appropriate case for the court to ask “What reason had the witness to lie"” …The fact that people have no grudge against someone does not mean that they cannot, at the same time, be mistaken or, for that matter, deliberately untruthful…There are spiteful people about.”*** There are inconsistencies in the prosecution evidence as already pointed out hereinabove. What is to be determined is whether the contradictions are so fundamental so as to vitiate the charge against the accused person. In all cases, discrepancies in witness testimonies are bound to occur. Where the discrepancies are minor and do not go to the root of the case, the same can be overlooked. My view is buttressed by the authority of Peter ***Ngure Mwangi v Republic [2014] eKLR*** wherein the Court of Appeal held that where the evidence adduced by the prosecution consists of minor discrepancies and inconsistencies, the same are not material and cannot weaken the probative value of the evidence tendered by the prosecution in support of their case In the case of ***Philip Nzaka Watu v Republic [2016] eKLR,*** the Court of Appeal had this to say: ***"It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question."*** Similarly, in ***Dickson Elia Nsamba Shapwata & Another v The Republic, Cr. App. No. 92 of 2007,*** the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concludedas follows: ***“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”*** In my view, any evidence that tends to suggest that the accused person may not have committed the offence cannot be termed as a minor discrepancy. I find that the discrepancies in the prosecution evidence were fundamental and went to the root of the case. They cannot be overlooked. I say so because the prosecution evidence depicts different scenarios of what could have transpired on the material day. In fact, there is a contradiction on when the incident could have occurred. From the contradictions in the prosecution case, the court is unable to draw a picture of what transpired and when. It is not for the court to choose which version to go by or to patch up the prosecution case. I have considered the accused persons’ defence. I find it difficult to disregard the defence evidence on what transpired on the material day. The defence is probable. The prosecution evidence on record is not capable of dislodging the accused persons’ defence. The prosecution must prove its case beyond reasonable doubt. This standard of proof *"beyond reasonable doubt"* is grounded on a fundamental societal value determination that it is far worse to convict an innocent man than to let a guilty man go free. A reasonable doubt exists when the court cannot say with moral certainty that a person is guilty or that a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as "such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause or hesitate before or taking the represented facts as true and relying and acting thereon" (***see Clarence Victor,******Petitioner 92-8894 v. Nebraska, 511 U.S. 1 (1994); Rex v. Summers, (1952) 36 Cr App R 14; Rex v. Kritz, (1949) 33 Cr App******R 169, [1950] 1 KB 82 and R. v. Hepworth, R. v. Feamley, [1955] 2 All E.R. 918***). Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty. Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the offence charged. It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt. In ***Philip Nzaka Watu v Republic [2006] eKLR***, it was held that to find a conviction in a Criminal case, the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in ***Stephen Nguli Mulili v Republic [2014] eKLR:*** ***“It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V WOOLMINGTON, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See FESTUS MUKATI MURWA V R, [2013] eKLR.”*** In the famous case of ***Miller v Ministry of Pensions [1947] 2 All ER 372***,***Lord Denning***stated with regard to the degree of proof beyond reasonable doubt: ***“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”*** In ***Bakare v State (1987) 1 NWLR (PT 52) 579***, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating: ***“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.”***(Emphasis mine) I cannot state with conviction that the accused person threatened to kill the complainant on whatever day. The entire evidence on record has placed a doubt on my mind that is not unreasonable. My opinion is that reasonable doubt has been cast in the prosecution case. As a matter of law, the doubt must be resolved in favour of the accused person. It is not the duty of the accused person or the court to fill in the gaps or tie up the loose ends in the prosecution case. The evidence does not irresistibly point to the accused person’s guilt. Parties should avoid resorting to criminal sanctions in a bid to settle old scores. In as much as the duty of the court is to resolve disputes, the court may not always offer or provide the best solution to the parties' feuds. Parties should embrace alternative dispute resolution which in most cases maintains the social fabric. It is the duty of the prosecution to prove the charges against the accused person, and not for the accused person to prove his innocence. **DISPOSITION** In view of the foregoing, I find that the prosecution has failed to prove its case against the accused person beyond reasonable doubt. Consequently, I make the following orders: 1. The accused person is found **NOT GUILTY** of the offence of Threatening to kill contrary to section 223(1) of the Penal code; 2. The accused person is found **NOT GUILTY** of the offence of Creating a disturbance in a manner likely to cause a breach of the peace contrary to section 95(1) (b) of the Penal Code; 3. The accused person is hereby **ACQUITTED** in respect of both counts. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 16TH DAY OF JULY, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**