Republic v Mutinda (Criminal Case E867 of 2022) [2026] KEMC 291 (KLR) (9 July 2026) (Ruling) (with dissent)

Republic v Mutinda (Criminal Case E867 of 2022) [2026] KEMC 291 (KLR) (9 July 2026) (Ruling) (with dissent) Neutral citation: [2026] KEMC 291 (KLR) Republic of Kenya In the Makindu Law Courts Criminal Case E867 of 2022 YA Shikanda, SPM July 9, 2026 Between Republic Prosecution and Balozi Maseki Mutinda Accused Ruling 1.The charge herein was amended on 5/9/2023 wherein Balozi Maseki Mutinda (hereinafter referred to as the accused person) was 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 7/11/2022 at Syumile area in Makindu Sub-county within Makueni County, the accused person threatened to kill Elizabeth Miunda Mwasi by uttering words, “Nitalala na wewe, wasichana wako nanikuuwe”, meaning, “I will have sex with you, your daughters and then kill you.” The amendment was done after the prosecution had called its witnesses. Following the amendment and upon application by the accused person, the court directed that the three prosecution witnesses who had testified be recalled for further cross-examination by the accused person. However, despite being given sufficient time, the prosecution failed to recall the said witnesses. The Evidence 2.The prosecution called a total of three witnesses in a bid to prove their case against the accused person. PW 1 Elizabeth Muinda (hereinafter referred to as the complainant) testified that on 28/10/2022 she was at her home when the accused person’s wife went and borrowed the complainant’s phone so as to make a call. The following day at about 4:00 pm, the accused person went to the complainant and insulted her. He claimed that the complainant and given his wife her phone and it was the reason the accused person’s wife had gone to her parent’s home. That the accused person stated that he would have sex with the complainant then kill her. The complainant reported to the police where after the accused person was arrested. 3.PW 2 Valentine Nduku testified that the complainant was her mother. That on 8/11/2022 at about 11:00 am she was at home with the complainant when the accused person arrived and claimed that the complainant wanted to have him imprisoned. That the accused person stated that he would rape the complainant as well as PW 2. The two went and reported the matter to the police. PW 3 Police Corporal Evans Mumbui testified that he was the investigating officer in the matter. That on 8/11/2022 he was at the police station when the complainant reported a case of threatening to kill. The investigating officer later arrested the accused person and caused him to be charged with the offence. Main Issue For Determination 4.The main issue for determination at this stage is whether the Prosecution has established a prima facie case to warrant the accused person to be placed on his defence. Analysis And Determination 5.I have carefully considered the evidence on record as well as the law applicable. A prima facie case is defined in the Mozley and Whiteley’s Law Dictionary 11th Edition as:\“A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case then is one which is established by sufficient evidence and can be overthrown only by rebutting evidence adduced by the other side.” (Emphasis added) 6.The locus classicus on what constitutes a prima facie case is to be found in the celebrated case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, where the court stated as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” (Underlining mine) 7.In the authority of Ronald Nyaga Kiura v Republic [2018] eKLR, the court observed that a prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. In my considered view, for the court to find that a prima facie case has been made out against an accused person, the prosecution must have established the following:a.That the offence complained of was indeed committed; andb.That the evidence links the accused person to the offence complained of. 8.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. A prima facie case is an early screen for a court to determine whether the prosecution can go forward to try the accused person fully for the crime. As such, the standard of proof that the prosecution must satisfy at the prima facie case stage is lower than that for proof that the accused is guilty, that is, lower than proof beyond reasonable doubt. In order to establish a prima facie case, a prosecutor need only offer credible evidence in support of each element of a crime.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". 9.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:a.Existence of a threat to life;b.Cause a person directly or indirectly to receive the threat. 10.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: -a.Without lawful excuse utters;b.Or directly or indirectly causes any person to receive a threat;c.The threat may be in writing or verbal;d.It must be a threat to kill any person. 11.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. To begin with, the particulars of the charge are defective to the extent that they lack a key ingredient of the offence. This is the fact that the threat to kill was made without lawful excuse. Nevertheless, I will overlook the defect since the accused person was under no illusion as to what he was charged with and no miscarriage of justice was occasioned. 12.There are inconsistencies in the prosecution evidence. The particulars of the offence indicate that the incident complained of occurred on 7/11/2022. According to the complainant’s testimony, the incident occurred on 29/10/2022. The evidence of PW 2 indicates that the incident occurred on 8/11/2022. The investigating officer stated that it was reported to the police that the incident occurred on 8/11/2022. The testimony of the complainant was that the accused person stated that he would have sex with him then kill her. When the complainant was cross-examined by the accused person, she indicated that the accused person threatened her while armed with a machete and that he did so in the presence of the complainant’s children. 13.PW 2 who is the complainant’s daughter claimed that she was present during the incident. I have already pointed out that she gave a different date from what the complainant stated. The testimony of PW 2 was that the accused person stated that he would rape the complainant and PW 2. The witness did not state that the accused person threatened to kill the complainant. When PW 2 was cross-examined by the accused person, she stated that the accused person did not threaten the complainant while armed with a machete. 14.In all cases, discrepancies in witness testimonies are bound to occur. What is to be determined is whether the contradictions are so fundamental so as to vitiate the charge against the accused person. 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. 15.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." 16.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 concluded as 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.” 17.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, given the inconsistencies, it is not clear when the incident occurred and whether the accused person actually threatened to kill the complainant. The witnesses gave different dates which were also different from what was stated in the charge. In addition, the complainant stated that the accused person was armed with a machete and threatened to have sex with her then kill her. On the other hand, PW 2 who is the child of the complainant and was allegedly present during the incident stated that the accused person merely stated that he would rape the accused person and PW 2. The witness was categorical that the accused person did not threaten the complainant and was not armed with a machete.There is no prima facie evidence to show that the accused person could have made a threat to kill, directed at the complainant. The test in determining a prima facie case was laid down in Republic v Galbraith [1981] WLR 1039, in the following words:1.If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case;2.The difficulty arises where there is some evidence, but it is of a tenuous character, for example because of interment weakness or vagueness or because it is inconsistent with other evidence;(a)where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.(b)where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesses’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. 18.It is the duty of the prosecution to prove the charge against the accused person. To this end, the prosecution must satisfy the ingredients of the offence at a prima facie level before the accused person is called upon to offer an explanation. In my view, before the court places an accused person on their defence, there must be credible evidence to show that the offence complained of was committed and that the evidence links the accused person to the offence. I think I have said enough to show that the charge is untenable. If I were to place the accused person on his defence and he opted to remain silent in defence, this court would not convict him. It is not the duty of the accused person to fill in the gaps or tie up the loose ends in the prosecution case. 19.In the instant case, there is absolutely no acceptable evidence to show that the accused person committed the offence. In the circumstances, I have no difficulty in stopping the case at this juncture. I agree with the observation made by the High Court of Malaysia in Criminal Appeal No. 41LB-202-08/2013 – Public Prosecution v Zainal Abidin B. Maidin & Another that the defence ought not to be called merely to clear or clarify doubts. In the case of Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16, Sharma J held:“It is the duty of the Prosecution to prove the charge against the accused beyond reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence, to rule that there is a case for the accused to answer.” 21.I may be curious to know what the accused person has to say about the allegations but curiosity is not a reason enough to place the accused person on his defence. The prosecution of the accused person was a shot in the dark. Disposition 22.The upshot of the above considerations is that the Prosecution has failed to establish a prima facie case to warrant the accused person to be placed on his defence. As rightly held in the case of Ramanlal (supra), a mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence. I find and hold that the accused person has NO CASE TO ANSWER and proceed to acquit him of the charge under section 210 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 9TH DAY OF JULY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.