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MagistrateDismissedNot stated in the judgment (criminal charge of Threatening to Kill, Tana-River Sub-County)· [2020] KEMC 23 (KLR)

Republic v Hassan (Criminal Case 60 of 2018) [2020] KEMC 23 (KLR)

Principal Magistrate's Court at Hola
4 February 2020
1,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court acquitted a man of making death threats because the exact threatening words reported differed from the charge.

What this practically means

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Executive summary

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The defendant, Salim Hamad Hassan, was charged on 11.06.2018 with Threatening to Kill contrary to section 223(1) of the Penal Code, arising from an incident on 30.05.2018 at Neema Bar in Tana-River Sub-County. The charge alleged that, when confronted with an unpaid Kshs. 500/= debt for alcoholic drinks, he uttered the words 'nitatuma vijana wakutupe kwa mto' ('I will hire youths to throw you into the river') to the complainant, Peter Gikundi (PW1). PW2, a police officer from Hola Police Station, investigated the report. The defendant, unrepresented, denied making the threats and stated that he was the one assaulted during a commotion. The prosecution called only two witnesses. The court identified the sole issue as whether the prosecution had proved the charge beyond reasonable doubt so as to warrant conviction under section 215 of the Criminal Procedure Code. Restating the ingredients of the offence from the High Court decision in Nancy Wanja Githaka v Republic - a real threat to life, received by the complainant, with an intention to harm - the court found the evidence of the words seriously contradictory: the charge alleged being thrown into the river, while PW1 testified about drowning in the river. The court held that these formulations might lead to different defences, found material contradiction and ambiguity in the words and their alleged intention, and concluded the charge was not proved. The defendant was acquitted under section 215 of the Criminal Procedure Code on 04.02.2020.

Key legal issues

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01

Whether the prosecution proved the words alleged to have been uttered and the defendant's intention to the standard of beyond reasonable doubt

Holding

The prosecution failed to prove the words uttered and their intention; the charge failed for want of proof.

Reasoning

The charge alleged the words 'nitatuma vijana wakutupe kwa mto' (throw you into the river), while PW1 testified the defendant threatened to have him drowned in the river. The court found this discrepancy a material contradiction and ambiguity: being thrown into a river and drowning in a river carry different meanings and might lead to different defences. Since the words take centre stage in a threats charge and their meaning must be proved and interpreted, the prosecution could not discharge its burden beyond reasonable doubt.

p. 3
02

Ingredients of the offence of Threatening to Kill under section 223(1) of the Penal Code

Holding

The offence requires a real threat to life, directly or indirectly received by the complainant, with an intention to harm.

Reasoning

Relying on the High Court's decision in Nancy Wanja Githaka v Republic, the court restated the ingredients: existence of a threat to life, and a person directly or indirectly caused to receive the threat. The threat must be real and accompanied by an intention to harm; a mere threat without such intention falls outside section 223(1). The court then tested the contradictory evidence of the words against these ingredients.

p. 2

Legal principles established

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  • The burden of proving a criminal charge lies squarely on the prosecution and the standard of proof is beyond reasonable doubt.
  • To establish a threat to kill under section 223(1) of the Penal Code there must be a real threat to life, received by the victim, coupled with an intention to harm.

Court orders

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  1. 1.The defendant is acquitted of the offence of Threatening to Kill contrary to section 223(1) of the Penal Code pursuant to section 215 of the Criminal Procedure Code
Jurisdiction invoked
Original criminal jurisdiction under the Criminal Procedure Code (Cap. 75) and the Penal Code (Cap. 63); acquittal entered pursuant to section 215 of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Hassan (Criminal Case 60 of 2018) [2020] KEMC 23 (KLR)", Case Analysis (2020). Not stated in the judgment (criminal charge of Threatening to Kill, Tana-River Sub-County). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/23/eng@2020-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.