https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/300

Republic v Otaigo (Criminal Case E153 of 2026) [2026] KEMC 300 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEMC 300 (KLR) Republic of Kenya In the Kehancha Law Courts Criminal Case E153 of 2026 JP Nandi, SPM July 14, 2026 Between Republic Prosecutor and Wilson Irecho Otaigo Accused Ruling 1.The accused 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 25th day of March 2026 at Taragwiti area in Kuria West Sub-County within Migori County while armed with a bow and arrows uttered threatening words “Leo nitakuua” meaning “Today I will Kill you”, threatening to kill Wilson Masana Nchagwa. The Prosecution Case 2.The prosecution called four (4) witnesses namely:1.Wilsonmasana Nchagwa(complainant) (PW1)2.Samwel Dilo Masoko(PW2)3.Joseph Matinde Mukira(PW3)4.No. 77736 SGT Charles Gati Chacha(PW4) 3.The prosecution case is that PW1 stated that he bought land from the accused’s family and he is his neighbour. On 25/3/2026 at 8:30am he hired Samwel Diro and Nyamohanga to apply fertilizer on his maize. He took them to his land and went back home. After about one hour they called him saying a person armed with a bow and arrows had come to the land and threatened to kill them. PW1 proceeded to the land where he found accused armed with a bow and arrows. The accused told him “Mtu atakufa hapa leo” when accused approached him. PW1 said he sensed danger and went to report the matter at Isebania Police Station. 4.PW1 came with PW4 at the land where they found the accused. The boys he had hired hid themselves after calling him. The police told him to take the fertilizer which he did and kept at a neighbour’s home. PW3 then came at the scene when PW1 came with the police. 5.PW2 evidence was that on 25/3/2026 at around 8:00 am to 8: 30AM PW1 hired him and Nyamohanga to apply fertilizer on his maize. PW1 took them to his land and they started applying fertilizer. While applying fertilizer a person armed with a bow and arrows came and asked them who had sent them to work there. The accused told them to stop and they then called PW1 and told them what was happening. PW1 told them to wait for him. 6.PW1 came and went to the land who talked with the accused but he did not hear what they were talking about. The accused was inside the land while PW1 was on the road. PW1 went away and came back with police officers. The police told PW1 to take the fertilizer and they left the land. He said it the accused who told them to stop working. 7.PW3 evidence was that on 25/3/2026 while at home around 8:30am he heard some noise by accused chasing the people who were applying fertilizer in the land of PW1. He went to see what was happening. On reaching there he found the accused armed with a bow and arrows who had chased PW1’s workers. After sometime PW1 came with police and PW3 left the scene and went away. He identified the accused in the dock as the one who was armed. They have a case with him as the accused has been disturbing him by encroaching onto his land. He is waiting for this one to be finalized before he can bring the other case. 8.PW4 investigated the case, arrested and charged the accused person. The prosecution then closed its case. Determination 9.The burden of proof lies on the prosecution throughout the trial. That burden of proof does not shift to the accused person to prove his innocence. That is the only way fair trial of the accused person can be guaranteed as stipulated in Article 50 (2) of the Constitution. 10.It follows that an accused person is under no duty to give any evidence in defence to rebut the prosecution’s case. An accused person has the right to remain silent and the court would decide the case on the basis of the evidence adduced, without making any adverse inference against him. 11.However, an accused person’s right to adduce evidence and challenge the evidence adduced against him is guaranteed under Article 50 (2) (k) of the Constitution, albeit he also enjoys the right not to give any self-incriminating evidence. See Article 50 (2) (l) of the Constitution. 12.Having said so, the standard of proof required in criminal cases is that of beyond reasonable doubt. Nonetheless, that standard is not applicable at this stage where the prosecution is only expected to have established a prima facie case against the accused person to warrant him to be placed on his defence. 13.A prima facie case is established where the evidence tendered by the Prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to remain silent. 14.In Republic v Abdi Ibrahim Owi [2013] eKLR, the court defined a prima facie case as follows:“‘prima facie’ is a latin word defined by Black’s Law Dictionary 8th Edition as, “sufficient to establish a fact or raise presumption unless disapproved or rebutted”. ‘prima facie’ is defined by the same dictionary as “the establishment of a legally required rebuttable presumption.” 15.In simple terms, prima facie means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with. 16.The question that this court has to deal with and answer at this stage is therefore, whether based on the evidence before this Court, the court after properly directing its mind to the law and the evidence may convict if the accused chose to give no evidence. It was held in Ronald Nyaga Kiura v . Republic [2018] eKLR that;“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. 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. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat -v - Republic [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.” 17.From the above detailed holding by the court, can this court on the basis of the evidence so far tendered by the Prosecution, and this court properly directing itself to the law and evidence convict if the accused chooses not to give any evidence? The court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer 18.Turning to our instant case, the accused has been charged under section 223(1) of the Penal Code which 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”. 19.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. 20.The above ingredients were set by Kimaru J. (as he then was) in Martin Ng’ang’a Kamanu v Republic [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.” 21.The particulars of charge sheet provide as follows “….without lawful excuse while armed with a bow and arrows uttered threatening words ‘Leo nitakuua” meaning “today I will kill you”, threatening to kill WILSON MASANA NCHAGWA. 22.The prosecution evidence must show that indeed the accused uttered the said words. When PW1 testified he said that the accused told him that “Mtu atakufa hapa leo” he sensed danger and went to report the matter at Isebania police station. PW2 in cross examination said that PW1 and accused talked in Kuria language which he does not understand. PW4 in cross examination said that he did not record the words uttered by accused while threatening to kill the complainant in his statement. 23.The above evidence clearly indicates that there is no evidence in which language the threatening words as particularized in the charge sheet were uttered in. there is also inconsistence in the prosecution case. The investigating officer did not tell the court where he got the words as indicated in the charge sheet from given that he did not record in his statement the said words. PW2 was present did not understand what accused and complainant were talking about in Kuria language. The complainant did not tell the court in which language the accused uttered the alleged words. 24.The language in which the words uttered is important. This fact has not been disclosed by the prosecution evidence on record, which creates doubt in the prosecution. The same goes to the root of the prosecution case. There is also no evidence on record showing the actions the accused took. 25.Justice Aburili in the case of Okutto v Republic (Criminal Appeal E016 of 2024) [2024] KEHC 10044 (KLR) (7 August 2024) (Judgment) rendered herself as follows:-“I am alive to the fact that in the offence of threatening to kill, it is immaterial whether the offence was premeditated or not. The question, from the above evidence and circumstances is whether the actions of the appellant indicated a person who wanted to kill. In my humble view, the Appellant's conduct on the material day does not demonstrate that he went to the complainant’s home with the intention of threatening to kill her but to prevent her from getting into and remaining in her house.” 26.Further in the case of Director of Public Prosecutions v Kariuki (Criminal Appeal E065 of 2022) [2024] KEHC 4160 (KLR) (24 April 2024) (Judgment) LM Njuguna, J held as follows:-“From the evidence, it is clear to me that indeed the respondent threatened to kill the complainant and the testimony of PW3 places him at the scene. However, it is important to deduce whether the respondent had the intent to commit the offence. This can be inferred from the alleged behavior of the respondent at the time of the threat.” 27.From the above two authorities it is clear that the uttering of the threats to kill must be accompanied by the actions an accused does for the offence of threatening to kill to be complete. In applying the above decisions in our instant case there is no evidence on record of the actions the accused did to be able to say that he had the intent to kill the complainant. What comes out clearly is that the complainant and PW3 have a litany of land issues with the accused and are using the criminal justice system to settle the same. This is not the objective of the criminal justice to be misused to settle civil disputes. 28.It is my considered opinion that the prosecution has not been able to establish a prima facie case to warrant the accused person to be placed on his defence. 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 and acquit him under section 210 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 14TH DAY OF JULY, 2026 VIA MICROSOFT TEAMS.J.P. NANDISENIOR PRINCIPAL MAGISTRATEIn the presence of:Mr. Kuntai ………… Prosecution CounselMr. Kigera/Ms. Martha………… Court AssistantAccused …………….. PresentInterpretation ……… English/KiswahiliAccused Language … KiswahiliAdvocate for accused…..Ms. Akota presentCourt: 14 days right of appeal explained.