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MagistrateDismissedNot stated in the judgment· [2026] KEMC 11 (KLR)

Republic v Kamau (Criminal Case E1796 of 2023) [2026] KEMC 11 (KLR)

Principal Magistrate's Court (criminal trial), Nakuru
10 February 2026
ANAloyce Peter Ndege
1,170 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Tabitha Muthoni Kamau was charged with Offensive Conduct contrary to section 94(1) of the Penal Code, the particulars being that on 25 April 2023 at Naishi Game location, Njoro sub-County within Nakuru County, she used abusive words ('kwenda huko, uko na tumbo kubwa, hauna akili, shetani, mbwa, Malaya wewe') to Harun Kariuki in a public place with intent to provoke a breach of the peace. The prosecution called three witnesses: the complainant, who was weeding and grazing cattle on a private farm for its caretaker; his wife, who corroborated his testimony; and the arresting police officer. The complainant alleged the accused, his sister-in-law, trespassed into the farm through the fence and abused him when he sought to prevent destruction. At the close of the prosecution case the court considered whether a prima facie case had been established under section 211 of the Criminal Procedure Code. Applying Republic v Kennedy Otieno & 6 others, the magistrate identified the elements to be proved: presence in a public place, use of abusive words, and intent to provoke a breach of the peace. Relying on the statutory definitions of 'public place' in the Penal Code and the Interpretation and General Provisions Act, the court held that the alleged trespass into a private farm demonstrated the locus was not a public place, and that no member of the public was present when the words were uttered. Although the words might have caused a breach of the peace as in Mule v Republic, the cognate offence under section 95 was not lesser than the offence charged. Finding the prosecution had not discharged its burden beyond reasonable doubt, and that the accused was entitled to remain silent, the court entered a finding of not guilty and, under section 210 of the Criminal Procedure Code, dismissed the charge and acquitted the accused. Her cash bail was ordered released to the depositor. The judgment was delivered in open court at Nakuru on 10 February 2026 by Senior Principal Magistrate Aloyce Peter Ndege.

Key legal issues

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01

Whether the words were uttered in a public place

Holding

The offence was not proved because the words were uttered in a private farm, not a public place

Reasoning

The Penal Code and the Interpretation and General Provisions Act define a public place as one to which the public are entitled or permitted access. The evidence was that the accused trespassed into a private farm under the complainant's care; the very allegation of trespass demonstrates the farm was not open to the public. Further, no member of the public was present when the words were uttered - the complainant's wife and daughter are members of his nuclear family, not the public.

p. 2
02

Whether a prima facie case was established to put the accused on her defence

Holding

No prima facie case was disclosed; the accused was acquitted under section 210 of the Criminal Procedure Code

Reasoning

Applying Republic v Kennedy Otieno & 6 others, the court found the prosecution had not discharged its burden of proving beyond reasonable doubt that the offence was committed in a public place with intent to provoke a breach of the peace. The accused was entitled to remain silent as the prosecution case appeared unproved, and the case should not proceed beyond the close of the prosecution case.

p. 3

Legal principles established

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  • A prima facie case is one where there is sufficient evidence upon which the court would convict the accused if no explanation is given
  • At the close of the prosecution case the accused has a right to keep silent; the burden of proving guilt beyond reasonable doubt lies on the prosecution
  • A private farm into which entry is not permitted to the public is not a public place for purposes of section 94(1) of the Penal Code

Court orders

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  1. 1.Finding that no prima facie case has been disclosed warranting the accused to be put on her defence
  2. 2.Pursuant to section 210 of the Criminal Procedure Code, dismissal of the charge of Offensive Conduct contrary to section 94(1) of the Penal Code
  3. 3.Acquittal of the accused person of the offence of Offensive Conduct
  4. 4.Release of the accused's cash bail to the depositor

Authorities

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Legislation

  • Penal Codesection 94(1)
  • Penal Codesection 95
  • Criminal Procedure Codesection 210
  • Criminal Procedure Codesection 211
  • Interpretation and General Provisions Actdefinition of public place

Cases cited (2)

  • Republic vrs Kennedy Otieno & 6 others
    (1998) eKLR
  • Mule v. Republic
    Criminal Appeal No. 873 of 1982
Jurisdiction invoked
Criminal jurisdiction under the Penal Code and Criminal Procedure Code; trial of offensive conduct charge under section 94(1) of the Penal 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 Kamau (Criminal Case E1796 of 2023) [2026] KEMC 11 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/11/eng@2026-02-10

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