Republic v Malaba (Criminal Case E242 of 2025) [2025] KEMC 441 (KLR)
The bottom line
#A Bungoma court convicted a man on both charges, confirming that merely threatening to kill someone is itself a crime, even without a weapon.
What this practically means
#Executive summary
#Key legal issues
#Proof of threatening to kill under section 223(1) of the Penal Code
The court found the offence proved: the words uttered by the Accused to PW1, taken in their ordinary sense, amounted to threats to kill, and the failure to produce the panga and rungu was not fatal.
The offence is complete upon utterance of a threat without lawful excuse. PW1 and PW2 both heard threats to PW1's life; differences in their wording were trifling inconsistencies attributable to human recollection, not untruthfulness. Arming was immaterial because the offence does not require the accused to have been armed.
Proof of creating disturbance likely to cause a breach of peace under section 95(1)(b) of the Penal Code
The court found the offence proved: the Accused's conduct constituted a brawl and interference with the complainant's and public's activities, causing a breach of the peace.
Applying Mule v Republic, the disturbance must be likely to cause a breach of the peace. The Accused's conduct forced the complainant to leave his workplace and seek help, and attracted a crowd of onlookers, preventing persons from going about their daily activities without interference.
Weight of a late-raised alibi defence
The alibi, raised too late and not put to prosecution witnesses in cross-examination, attracted little weight and was displaced by the overwhelming prosecution evidence.
Relying on Kiarie v Republic, an alibi need not be proved by the accused but must be disclosed early enough to be investigated by police. The Accused's alibi was raised at the defence stage, was not cross-examined on, and DW2 spoke only to the arrest date, contradicting the Accused and being judged untruthful.
Legal principles established
#- The offence of threatening to kill under section 223(1) of the Penal Code is complete when a person simply utters a threat to kill another person; proof that the accused was armed is not required.
- Minor or trivial contradictions in prosecution testimony do not affect credibility and cannot vitiate a trial; only substantial contradictions warranting doubt benefit an accused.
- Creating a disturbance under section 95(1)(b) requires that the disturbance was likely to cause a breach of the peace, peace meaning the right of wananchi to go about their daily activities without interference.
- An alibi raised for the first time at the defence stage must be scrutinised; it must be disclosed early enough to permit police investigation, which determines the weight the court gives it.
Court orders
#- 1.Conviction of the Accused Person under Section 215 of the Criminal Procedure Code for the offence of threatening to kill contrary to section 223(1) of the Penal Code
- 2.Conviction of the Accused Person for the offence of creating disturbance contrary to Section 95(1)(b) of the Penal Code
- 3.Judgment read, signed and delivered in open Court at Bungoma on 08th October 2025
- Jurisdiction invoked
- Original criminal jurisdiction over charges under sections 223(1) and 95(1)(b) of the Penal Code; conviction entered under Section 215 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Malaba (Criminal Case E242 of 2025) [2025] KEMC 441 (KLR)", Case Analysis (2025). Kitale CMC CR. No. E1634 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/441/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.