https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/142

Republic v Okolo (Criminal Case E198 of 2025) [2026] KEMC 142 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 142 (KLR) Republic of Kenya In the Malaba Law Courts Criminal Case E198 of 2025 AZ Ogange, RM June 25, 2026 Between Republic Prosecutor and Moses Okolo Accused Judgment 1.The accused person took plea on 7th April 2025 on the charge of threatening to kill contrary to section 223(1) of the penal code. 2.The particulars are that the accused person on the 1st day of April 2025 at Kakeriaut village in Teso North Sub-County within Busia County without lawful excuse while armed with a panga uttered the words “usipowacha kulima hii shamba nitakukata kata na kukuua” words threatening to kill Jacob Juma Emojong. 3.He pleaded not guilty to the charges and he was admitted to cash bail of Kshs. 20,000/= and the matter was set down for hearing. The prosecution called a total of four witnesses. 4.PW1 was the Complainant one Emojong Juma Jacob who testified that on 1st April 2025 at 0600hours he was tilling his land with his brothers Alfred Omaran and Gabriel Ishamar. The accused person came with a panga and a cane and told them to stop tilling the land as it had a dispute. Gabriel told them to stop tilling as they did not know the intention of the accused person. That he reported at the police station as the accused person had told them that they were young and they did not know issues of land. That blood must be poured That the accused person in court was the one who threatened him and the utterances made him fear for his safety. 5.On cross-examination he testified that there was land which was central to the dispute. That the accused person was standing 20 metres away from them when he threatened them. That the accused person mentioned his name and threatened him and told him that his blood must be poured. That those are the words he stated at the police station. That it is only the accused person who can confirm what he meant by blood must be poured. 6.In re-examination he confirmed that his statement was recorded at the police station. 7.PW2 was one Alfred Omaran and brother to the complainant who testified that on 1st April 2025 he was at a farm with Gabriel and Jacob when they saw the accused person approaching them with a panga. He told them that they were small boys and the shamba did not have a title deed. That blood must be poured. That the accused person was telling him to leave the shamba. That the accused person threatened both he and his brother the complainant. That the utterances made him afraid for his life. 8.On cross-examination he told the court that the accused person told them that they had forged documents. That he was armed with a panga and they did not know what he wanted to do with it. That there was a land dispute. He was threatened but he was not given an OB number. That he saw the accused person cutting trees using a panga. That he may have forgotten the words uttered by the accused person. 9.In re-examination he testified that the accused person wanted to beat him using sticks. 10.PW3 was one Joel Gabriel who testified that on 1st April 2025 he was at the farm of one Emojong when the accused person arrived and told them that the farm was his. They saw him armed with a panga and they did not know whether he was targeting them or the cows. He moved the oxen aside. That the accused person told them that blood must be poured. That they had no dispute with the accused person. 11.On cross-examination he testified that he had said the truth. That he did not use a panga to cut trees and he had known the accused person for long duration. That he did not know of any incident where the accused person had injured anyone. That from the utterances of the accused person he did not know whose blood was going to be shed. That the accused person was speaking about him and others. That he mentioned his name and he was not happy about the utterances forcing him to leave and report to the police station. That he mentioned two other people, the owners of the farm but did not mention him. 12.In re-examination he testified that the owners of the shamba were Amuran and Juma. 13.PW4 was the investigating officer one Linda Ogweno who testified that on 2nd April 2025 a case of threatening to kill was minuted to her for investigation involving the complainant and his uncle who was the accused person. She requested them to avail themselves at the police station and recorded their statements. The complainant informed her that on 1st April 2025at 0600hours he was ploughing their land with his brothers Alfred and Joel. That their uncle approached them armed with a panga and a cane and started chasing them away telling them that if they set foot on the land he would cut them into pieces. They reported to the area Chief but this did not dissuade the accused person and finally they reported at the police station. The accused person was first summoned by the chief wherein he refused to appear and it was directed that the matter proceeds to the police station. That on 5th April 2025 with assistance of officers from Angurai police post the accused person was arrested after officer had visited the scene. 14.On cross-examination she testified that the matter was minuted to her on 2nd April 2025 with instructions to arrest the accused person. She accompanied the arresting officers as the Investigating Officer. That she relied on evidence of the complainant and the land dispute. That the case before the court was threatening to kill and not a land dispute. 15.In re-examination she testified that the complainant and the accused are well known to each other. 16.This marked close of the prosecution’s case and pursuant to a ruling delivered on 12th February 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give sworn evidence and call one witness. 17.The accused person testified as DW1 and told the court that on 1st April 2025 at 0600hours he was looking for someone to plough when he saw Joel, Juma, Jacob and Omara also going to the deceased’s land to plough. He told them to stop pending hearing and determination of the land dispute. They stopped and left quietly. He was later arrested for an offence that he did not commit. 18.On cross-examination he testified that he was ploughing an adjacent portion when he asked the complainant and his brothers to stop tilling awaiting determination of the dispute. That in the farm they use a stick to beat the oxen. That he had no ill feelings about the children of the deceased utilizing the shamba. 19.In re-examination he testified that the wife and children of the deceased were to rightfully utilize the shamba. 20.DW2 was one Emayot Okiring who testified that on 1st April 2025 he was with the accused person ploughing land at 0630hours when three boys came with cows and started tilling land belonging to the deceased. The accused person asked them why they were tilling the deceased’s land and asked them to leave. That his utterances were not directed to any specific person. That no one was injured and the accused person did not move to where the three gentlemen were. 21.On cross-examination he testified that the wife to the deceased went back to their home in Uganda and the complainant and his brothers are utilizing the land to date. 22.There was no re-examination and this marked close of the defense case. 23.The matter came up for mention on 11th May 2026 to confirm filing of submissions by Defense Counsel when those submissions had not been filed. The court granted Defense Counsel leave of seven days to file submissions and reserved the matter for judgment on 25th June 2026. At the time of writing this judgment no submissions had been filed on behalf of the accused person. Analysis and Determination 24.The accused person having been charged with the offence of threatening to kill, the burden rests upon the prosecution to prove the charge and specifically that the accused person uttered the threatening words as set out in the charge and that such words were directed at the complainant. 25.From the evidence on record, it is not in dispute that there exists a long-standing land dispute between the parties. While that background is relevant in understanding the context in which the events occurred, this court must be careful not to conflate the civil dispute over land with the criminal allegation before it. 26.A review of the testimonies of the prosecution witnesses reveals a material inconsistency. The common thread running through the evidence of PW1, PW2 and PW3 is that the words particularized in the charge were not the words allegedly uttered by the accused person namely “usipowacha kulima hii shamba nitakukaa kata na kukuua”. Instead their consistent account was that the accused said that “blood must be poured.” Further, those words were not directed specifically at the complainant but according to the evidence on record, were uttered to all the prosecution witnesses present. 27.This diveregence is significant. In criminal proceedings, the prosecution is bound by the particulars of the charge and must prove them as framed. Where the evidence tendered departs substantially from those particulars, doubt arises as to whether the offence as charged has been established. 28.The inconsistency is further compounded by the testimony of the investigating officer, whose account was completely at variance with that of the eye witnesses. Whereas the three prosecution witnesses maintained that the accused spoke of blood being poured, the investigating officer testified that the accused threatened to cut them into pieces. This contradiction on the very words forming the basis of the charge goes to the root of the prosecution case. 29.On the other hand, the defence does not deny the existence of a confrontation but gives an alternative explanation. The accused person stated that he merely asked the complainant to leave the land pending determination of the land dispute. This version was corroborated by DW2, who was also allegedly present at the scene. While the defence bears no burden to prove its case, its account raises a plausible alternative to the prosecution narrative. 30.Taken together these factors create reasonable doubt as to whether the accused person indeed threatened to kill the complainant as alleged. The accused person is therefore acquitted under Section 215 of the Criminal Procedure Code of the offence of threatening to kill contrary to section 223(1) of the penal code. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 25TH DAY OF JUNE, 2026.In the Presence ofMoses Okolo- the Accused PersonMr. Batwaula Counsel for the Accused PersonMr. T. Rotich-Prosecution CounselCourt Assistant: Paul OtienoA.Z. OGANGERESIDENT MAGISTRATE