https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/301

Republic v Ndiritu (Criminal Case E1312 of 2025) [2026] KEMC 301 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEMC 301 (KLR) Republic of Kenya In the Nyeri Law Courts Criminal Case E1312 of 2025 MM Gituma, SRM July 14, 2026 Between Republic Prosecution and Michael Muthuthiri Ndiritu Accused Judgment 1.The accused is charged with the offence of threatening to kill contrary to Section 223(1) of the Penal Code. The particulars are that on the 28th day of November 2025, at around 1230hrs at Muruguru location within Nyeri central sub-county in Nyeri County, the accused threatened to kill Johnstone Mathenge Ndiritu by saying Nitakumaliza Nitakuua to Johstone Mathenge Ndiritu.The accused pleaded not guilty and the matter was set down for hearing. Prosecution Case 2.PW1, the Complainant, stated that on 28th November 2025, he went to his shamba at around 12:30 pm. PW1 was accompanied by his employee, James Kiago. He claimed that he heard some noise as he was opening the gate. He then saw the accused holding some iron sheets. On questioning the accused as the iron sheets belonged to the Complainant, the accused insulted the Complainant. The accused told the Complainant “nitakumaliza, nitakuua and yeye ni mjinga”. The Complainant reported the matter to the police and the accused was arrested. The Complainant told the court that the accused was on his land when the incident occurred. He explained that there was a dispute between him and the accused involving the said land. 3.PW2, James Kiago-the Complainant’s employee, told the court that on 28th November 2025, he had accompanied the Complainant to his farm. When they got to the land, they heard some noise. On opening the gate, they saw the accused and he was carrying some iron sheets. The Complainant asked the accused why he was taking the iron sheets. The accused responded that he should have taken all the iron sheets. The accused then told the Complainant that he did not respect him and he would kill him. The accused uttered the words “nitakuua nikumalize”. PW2 and the Complainant left. The Complainant reported the matter to the police. 4.PW3, the Investigating officer, stated that on 28th November 2025, the Complainant reported a case of threatening to kill. PW3 and his colleague arrested the accused who was identified as the perpetrator by the Complainant. PW3 proceeded to record witness statements and charged the accused with the offence herein. 5.The Prosecution closed its case at this point. I found that the accused had a case to answer and placed him on his defence. The accused elected to give a sworn statement in his defence and call two witnesses. Defence 6.In his defence, the accused stated that on 28th November 2025, he had gone to visit his grandmother. At around 12 pm, he decided to look around the farm. He claimed that he met the Complainant and PW2 and they were taking pictures. He asked them why they were taking the pictures but they did not respond. The accused claimed that he notified his grandmother and she informed him that the Complainant who is his uncle has been disturbing them. After about 15 minutes, some police officers came and arrested him. The next day, the accused’s uncle Geoffrey visited him at the station. His uncle was able to secure his cash bail and he was released. The accused denied uttering the threatening words. He stated there was a land dispute pitting him against his uncle. He explained that he was given land by his grandfather but his uncle was trying to take away the land. 7.DW2, the accused’s grandmother, told the court that on the material day, she had sent her grandson to look for pasture for the sheep. She claimed that her son, the Complainant, found the accused on the land and started taking pictures. She claimed that she saw her son do this although she was a bit far. She then saw her son afterwards, return with the police who arrested the accused. 8.DW3, the accused’s uncle, stated that on 28th November 2025, he was called by DW2. He was informed that the accused had been arrested. DW3 went to the police station where the accused was being held. He was able to bail out the accused the following day. He claimed that the Complainant had bad intentions. He explained that the accused had sued him and his brothers over land. He stated that the Complainant, his brothers and him had been given land by their father. However, the Complainant was not satisfied and has been trying to grab their lands. The Determination 9.Despite the Counsel for the accused seeking time to file submissions, no submissions had been filed by 13th July 2026. The accused is charged with the offence of threatening to kill contrary to Section 223(1) of the Penal Code which reads 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.” 10.In Kurgat v Republic (Criminal Appeal E003 of 2022) [2023] KEHC 17236 (KLR), the court analzsed this offence 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 (see Phenias Njeru Koru v Republic [2015] eKLR)” 11.In this case, PW1 stated that on the material day he had gone to his farm. He was in the company of PW2 who is his employee. On reaching the gate, they heard some noise. When they opened the gate, they saw the accused. The accused was holding some iron sheets. PW1 told the court that he inquired from the accused what he was doing with the iron sheets. The accused responded by insulting him. The accused told him “nitakuua, nitakumaliza, wewe ni mjinga”. PW1 and PW2 left. PW1 reported the matter to the police. PW2 corroborated the evidence of PW1. 12.On his part, the accused claimed that he had gone to visit his grandmother, DW2. He then decided to go round the farm. He claimed that he saw PW1 and PW2. They were taking pictures. He asked them why they were taking pictures. PW1 and PW2 did not respond. After about 15 minutes, PW1 returned with police officers and the accused was arrested. The accused denied committing the offence. He told the court that there was a grudge between him and PW1 over a parcel of land. He explained that PW1 was trying to deprive him of land that he had been given by his grandfather. DW2 and DW3 corroborated the evidence of the accused as to the existence of a land dispute and a grudge between the Complainant and the accused. However, DW3 admitted that he was not present when the incident occurred while DW2 claimed she was present but she was far from the scene. She could see the accused and the Complainant but did not hear what was said. 13.PW1 and PW2 both testified that the accused uttered the words “nitakuua, nikumalize, wewe ni mjinga” to the Complainant, PW1. The accused denied this and I note that DW3 was not at the scene while DW2 was not close enough to the scene to hear what was being said. The evidence of PW1 was corroborated by that of PW2. Hence, I am satisfied that the accused uttered the said words. 14.Be that as it may, the issue that arises is whether the words were uttered in a context in which the Complainant perceived that there was a threat to his life. The context given by the Complainant and PW2 was that they had found the accused on the Complainant’s land and he was holding some iron sheets. On being asked why he was taking the iron sheets, the accused did not respond but instead uttered the above words. From the evidence of DW2 and DW3 it is evident that there exists a land dispute between the accused, the Complainant and other family members. Thus, the accused may have had a justification of being on the land. Other than the accused being found holding iron sheets, neither PW1 nor PW2 stated that the accused was armed with any weapon. Further, neither PW1 nor PW2 suggested that the accused acted in an aggressive manner such as approaching the Complainant while uttering the aforementioned words. While I find that the accused did utter the words, I am not persuaded that the context was one where the Complainant was apprehensive for his life. The manner in which the words were uttered coupled by the circumstances does not suggest that the Complainant feared for his life. 15.For these reasons, I find that the Prosecution was not able to prove this offence beyond reasonable doubt. Consequently, the accused is acquitted of the offence of threatening to kill contrary to Section 223(1) of the Penal Code under Section 215 of the Criminal Procedure Code. 14 days Right of Appeal. Dated, Signed, and Delivered in Nyeri on this 14th day of July 2026.M.M GITUMASENIOR RESIDENT MAGISTRATEIn the presence of:……………………………………………Prosecution Counsel…………………………………………..…Accused…………………………………………..…Counsel for the Accused…………………………………………..….Court Assistant