https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/338

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **CRIMINAL CASE NO. E174 OF 2024** **REPUBLIC……………………………………………………………..…..…..PROSECUTOR** VERSUS **ROY EDWARD ORAPA………….….………………………….... ACCUSED PERSON** **JUDGMENT.** **Introduction and Evidence** 1. The accused person took plea on 10th June 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 6th May 2025 at Angaro area in Teso North Sub-County within Busia County without lawful excuse uttered the words “wewe leo nakuja kukumalizia. Nilijifanya hiyo rungu ingine nimepatia polisi. Ulifikiria sitachonga ingine? Hii sasa ndio nimechonga ya kukuua na nivuke boda hadi Uganda au South Sudan. Hata hiyo kesi iko kotini hautamaliza bali nitakuwa nimekuua na nimeenda Uganda" threatening to kill Tobias Etyang. 3. The accused person pleaded not guilty to the charges and the accused person was admitted to Bond terms of Kshs. 100,000/= with surety of similar amount. The matter was set down for hearing and the prosecution called a total of three witnesses. 4. PW1 was the complainant one Tobias Rodgers Etyang who testified that on 6th May 2025 at 1100hours he was in Angaro on the road heading to his home and tilling some property when he met the accused person. The accused person told him that he would finish him. That he had given the other rungu to the police but he would sharpen another one and kill him and thereafter cross the border to Uganda or Sudan. He ran away and went to report at Changara Police Post. That the accused person was armed with a rungu and told him that he would not finish the cases in court and he would kill him. That there were witnesses scattered at the scene and he was not happy with the utterances of the accused person which made him fear for his life. 5. On cross-examination he testified that there were witnesses present at the scene including a passer by one Kevin Makhere and who he had not met before. That he had known the accused person for thirty-two years who had been convicted for malicious damage to property belonging to his father and assaulting his cousin. That he did not have any documentation to support his testimony. 6. In re-examination he confirmed that he ran away after the utterances and he was not the complainant in the other cases that he had alluded to. 7. PW2 was one PC Jared Ogato the investigating officer in the matter who testified that on 6th May 2025 the complainant reported that he had been threatened by the accused person. That the complainant was going about his business when the accused person approached him armed with a rod and threatened to kill him if he did not withdraw the case against him in court. That he would sharpen another rungu which he would use to harm the complainant and flee to Uganda or Sudan. He recorded statements of witnesses and started looking for the accused person. The accused person initially evaded arrest but he was apprehended when he was attending to another court case. 8. On cross-examination he testified that he visited the scene of crime on the same day and confirmed that there was a maize plantation about five feet tall where the accused person had been hiding prior to threatening the complainant. That he did not see the rod which the accused person had allegedly been armed with. That there was a witness at the scene who the accused person did not come with at the first instance. That the complainant did not know the name of the witness but could identify him physically. That the witness was on a motor bike and on his way to Tamlega when he witnessed the altercation. That to him an altercation meant that words had been exchanged but he did not have personal knowledge whether words were exchanged or not. 9. In re-examination he told the court that he was not at the scene. 10. PW3 was one Kelvin Simiyu an eye witness who testified that on 6th May 2025 at 1100hours he was enroute to Tamlega and on getting to Angaro area he saw a gentleman who was the accused person in court coming from a maize plantation carrying a stick and telling the complainant that he will finish him and go to Uganda. That the complainant ran away and he followed the said complainant. The complainant told him that the person from the plantation had threatened him severally. That they agreed that if need be he would reach out to him to become a witness in this case. That he had not been paid to give false testimony in court. 11. On cross-examination he testified that he saw the accused person when he was about 40metres to 50 metres away and armed with a rungu. That prior to the incident he neither knew the accused person nor the complainant. That he heard the accused person telling the complainant that he will finish him and go to Uganda. That the complainant upon being threatened ran away and did not retaliate. That he followed the complainant as he was also afraid of the accused person based on what he had seen and heard. That he further informed the complainant where to find him. That the complainant did not inform him about any other dispute and he was not a witness in any other case. 12. In re-examination he testified that he estimated the length of the stick which the accused person had and the complainant had informed him that the accused person had been threatening him yet he did not know the reason for such threats. That he recorded his statement on the same date of the incident. 13. This marked close of the prosecution’s case. Pursuant to a ruling delivered on 18th December 2025, the accused person was placed on his defence under Section 211 of the Criminal Procedure Code. 14. The accused person elected to give sworn evidence and call one witness. 15. The accused person in defense testified as DW1 and told the court that on 6th May 2025 he was going about his usual business as a farmer when the complainant was standing by the road and looked at him for a long time. He told the complainant to mind his business and forget about him. That he did not threaten him as alleged. That the complainant is his neighbor and whose family had grabbed land from theirs. He went about his business and the complainant left. That he was not armed at the time. 16. On cross-examination he testified that the actions of the complainant were not an isolated incident and he told him to mind his own business. That David and who was his witness in court was a neighbor and casual laborer and who at the time of the incident working in the farm of Peter Masake Orapa. That his witness was five metres away from the complainant and 60 metres from him. 17. In re-examination he testified that he was at the boundary at Chamasiri and his witness was closer to the complainant than he was to him. That he believes that the cases in court are connected as the offences and the complainant are similar. 18. DW2 was one David Humphrey Edebi who testified that on the date of the incident he was working as a casual laborer in a farm neighboring that of the accused person. He saw the complainant and who stood for a while. The accused person asked him whether he had nothing to do. He saw the complainant leave and the accused person also left at about 1100hours an hour after the exchange. That he did not see the accused person attack the complainant. 19. On cross-examination he testified that he was going about his usual business of tilling maize and that he was about 50 metres from the accused person. That the accused person spoke loudly and told the complainant to mind his own business. That if anything else was said he could not tell. 20. In re-examination he confirmed being closer in proximity to the complainant and reiterated that if at all anything else was said he could not tell. 21. This marked close of the Defense case. The matter was fixed for mention to confirm filing of submissions on 10th June 2026 and the court reserved the matter for judgment on 23rd July 2026. Defense Counsel has filed submissions which I have read and considered. **Analysis and Determination** 1. The elements that are to be established in the offence of threatening kill were set out by Kimaru, J. (as he then was) in [**Martin Ng’ang’a Kamanu v Republic [2020] KEHC 5815 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/5815/eng%402020-05-06) as follows: ***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. Guided by the authority above, the prosecution was required to prove that the accused person uttered words threatening to kill the complainant and that the threats were such as to cause the complainant to fear for his life. 2. The complainant testified that on 6th May 2025, while working on his property, the accused person threatened that he would kill him and thereafter flee to Uganda or South Sudan. The accused person further stated that he would sharpen another another rungu which he would use to “finish” the complainant. These utterances were specifically pleaded in the particulars of the charge sheet and were materially corroborated by PW2 the Investigating Officer and PW3 an eye witness who confirmed hearing the threats. 3. The Complainant further testified that the threats instilled fear for his life, prompting him to report the matter to the police. The court finds this reaction to be natural and consistent with the seriousness of the words uttered, particularly in light of the history of animosity between the parties and the existence of ongoing disputes before the court. 4. In his defence, the accused person claimed that the complainant had merely stared at him for a prolonged period, prompting him to tell the complainant to mind his own business. However, this version of events was never put to the prosecution witnesses during cross-examination. It therefore amounts to an afterthought intended to explain away the prosecution’s evidence. Moreover, the accused person through defense counsel did not substantially challenge the evidence regarding the threatening words during cross-examination. 5. The evidence of the investigating officer that the accused person evaded arrest until he was eventually apprehended while attending court in another matter also remained uncontroverted. While flight or evasion of arrest is not by itself proof of guilt it is a relevant circumstance which, when considered alongside the totality of the evidence lands support to the prosecution’s case. 6. The testimony of DW2 equally fails to assist the defence. DW2 admitted that there were words which may have been uttered which he did not hear, thereby leaving open the possibility that the threatening words were indeed spoken. His evidence therefore does not displace the positive and consistent testimony of the prosecution witnesses. 7. Having considered the evidence in its entirety, the court is satisfied that the accused person uttered the threatening words attributed to him. Those words were unequivocal, were directed at the complainant personally and were intended to instill fear of death. The complainant’s evidence that he genuinely feared for his life was credible particularly against the backdrop of the longstanding dispute between the parties. 8. Accordingly, the court finds that the prosecution proved all the essential ingredients of the offence beyond reasonable doubt. 9. The accused persons is therefore convicted under Section 215 of the Criminal Procedure Code for 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 23RD DAY OF JULY, 2026.** In the Presence of Roy Edward Orapa - the Accused Person Mr. Batwaula Counsel for the Accused Person Mr. T. Rotich-Prosecution Counsel Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 23.07.2026