https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/771

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KAKAMEGA** **CRIMINAL CASE NO. E110 OF 2026** **REPUBLIC** **VERSUS** **JACKSON OLENATIE……………………………………………….ACCUSED** **JUDGMENT** 1. The accused person has been charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code. The particulars are that the accused on the diverse dates between 6th of January, 2026 at around 2100hrs and on 5th March, 2026 at around 2030hrs, in Kehancha area, Kuria West Sub County within Migori County, without lawful excuse uttered words “Ntakuua” threatening to kill ROSE BOKE. **The Prosecution Case** 1. The prosecution called two witnesses namely: 2. **ROSE BOKE (complainant) (PW1)** 3. **NO. 238500 PC LILIAN OPIYO (PW2)** 4. The prosecution case was that PW1 on 5/1/2026 at night she was at her place of work when accused who is her neighbour came while armed with a panga, arrows, bow and nut and started telling her he will kill her and go to their home. There were customers around who feared and they went out. Among them were OWEINGO and MWANGI. PW1 said when she went outside with the customers the accused shot an arrow at her but it missed. She kept the arrow and in the morning she went and reported the matter at Kehancha Police Station. She went home thinking accused would come and apologize. 5. On 6/3/2026 at 8:00pm the accused came while armed with a panga, nut, rod sharped on both sides, two knives and told her that he will kill her and go to their home. He reported the matter to the police who arrested the accused on 7/3/2026. She said she does not have any dispute with the accused; however accused does the same business and told her that she had more customers. She identified the arrows as PMFI-1(a &b). 6. PW2 investigated the case, arrested and charged the accused person. She produced the arrows marked as PMFI-1 (a & b) as exhibit 1(a & b). The prosecution then closed its case. **The Accused Defence Case** 1. DW1 JACKSON OLENATIE the accused gave unsworn defence and denied the charges. His defence was that prays for forgiveness as he did not commit the offence. He then closed his defence. **The Law** 1. The accused in the two counts has been charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code which states as follows – ***“223(1) 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”.*** **Determination** **The Burden of Proof** 1. The prosecution bears the burden of proof, which proof is beyond any reasonable doubt. The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on article 50(2) (a) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the state and does not shift to the accused. 2. The degree of proof in criminal cases was properly established in the classicus English case of **[Woolmington v DPP](https://www.casemine.com/judgement/uk/5a938b3e60d03e5f6b82ba39%22%20%5Ct%20%22_blank) 1935 A C 462. Similarly, in [Bakare v State](https://casetext.com/case/bakare-v-state%22%20%5Ct%20%22_blank) 1985 2NWLR,** Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: - ***“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”.*** 1. Where there is doubt of any kind in a criminal matter, and evidence which would likely advance the case of the prosecution is not adduced, the effect of such an occurrence would go to the benefit of an accused person. 2. The prosecution was required to establish the following ingredients of the charge: that the Accused without lawful excuse uttered words which amounted to a threat to kill the complainant. The uttering of these words must be made in the context that the complainant perceives that he is under threat of losing his life. 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. 3. The above ingredients were set by Kimaru J. (as he then was) in [**Martin Ng’ang’a Kamanu v Republic**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/5815)**[2020] KEHC 5815 (KLR),** where he held:- ***“The prosecution was required to establish the following ingredients of the charge: that the Appellant without lawful excuse uttered words which amounted to a threat to kill the complainant. The uttering of these words must be made in the context that the complainant perceives that he is under threat of losing his life. 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.”*** 1. The particulars of charge sheet provide as follows “….without lawful excuse threatened to kill by uttering words namely *“NTIKUUA”* threatening to kill to ROSE BOKE. 2. In count one the complainant said that the accused threatened to kill her in the presence of customers among them were OWEINGO and MWANGI. The accused shot an arrow at her but it missed. She picked the arrow which she took to the police and reported the matter. The prosecution produced two arrows. The question to be asked is where they got the two arrows when complainant says an arrow, meaning one. Further there were customers who were; however, none testified in court and there is no reason given as to why they did not testify. This leads to the adverse inference that had they testified they would have given adverse evidence as against the prosecution case. These two issue have raised doubt in the prosecution case in respect of count one. In respect of count one I find that the prosecution has not been able to prove its case beyond any reasonable doubt and find the accused not guilty as charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code and acquit him under section 215 of the Criminal Procedure Code. 3. In respect to count two the particulars of the charge sheet show that the alleged offence occurred on 5/3/2026, however the evidence of PW1 and PW2 talks of what happened on 7/3/2026. Thus there is no evidence on record showing what happened on 5/3/2026. This means that the prosecution has not tendered any evidence showing that the accused threatened to kill the complainant on 5/3/2026. 4. In conclusion I find that the prosecution has not been able to prove its case beyond any reasonable doubt in count two, and I find the accused person not guilty as charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code. He is hereby acquitted under section 215 of the Criminal Procedure Code. **Dated, Signed and Delivered in open Court at Kehancha on this 27th day of August, 2026.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Kuntai………… Prosecution Counsel** **Mr. Kigera………… Court Assistant** **Accused ……………..** **Interpretation ……… English/Kiswahili** **Accused Language … Kiswahili**