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MagistrateDismissedMakindu SPMC Criminal Case No. E551 of 2023· [2026] KEMC 17 (KLR)

Republic v Kilungu (Criminal Case E551 of 2023) [2026] KEMC 17 (KLR)

Senior Principal Magistrate's Court
5 February 2026
YSY.A. SHIKANDA
2,214 words in judgment
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The bottom line

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A Makindu court acquitted a man of threatening to kill because vague words like 'I will cut you' don't clearly mean a threat to kill.

What this practically means

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Executive summary

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The accused, Alex Muthoka Kilungu, was charged with threatening to kill contrary to section 223(1) of the Penal Code. It was alleged that on 8 June 2023 at Bondeni village, Makindu, while armed with a machete, he uttered the words 'Nitakukata' (I will cut you) to his neighbour, the complainant Boniface Mwathi, following a dispute over livestock grazing on the complainant's land. The prosecution called three witnesses, the complainant unusually testifying twice; the machete was produced in evidence. The accused gave a sworn denial, saying the complainant snatched his machete while he was watering his livestock. The court identified the undisputed facts - neighbourliness, long-standing bad blood, and an encounter on the material day - and framed two issues: whether the accused threatened to kill the complainant, and whether the prosecution had proved its case beyond reasonable doubt. Setting out the ingredients of the offence from authority, the court held that the alleged words were ambiguous, did not necessarily amount to a threat to kill, and conflicted with the complainant's differing testimonies. Ambiguity must be resolved in favour of the accused, and evidence tainted by grudge must be treated with caution. The accused's defence was found probable and not dislodged. Reasonable doubt having been cast, the court found the accused not guilty and acquitted him. The court counselled the parties to avoid criminalising neighbour disputes and to embrace alternative dispute resolution.

Key legal issues

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01

Whether the words 'Nitakukata' constituted a threat to kill

Holding

The words are ambiguous and do not necessarily denote a threat to kill; the discrepancy between the charge particulars and the complainant's two testimonies left doubt

Reasoning

The charge particulars alleged 'Nitakukata' (I will cut you), yet the complainant's two testimonies differed - first that the accused would cut and kill him, then that he could finish him. The court held that for a s.223(1) charge the words must be clear and unambiguous, leaving no doubt of a threat to kill. Merely saying one will cut another does not necessarily mean killing; the court cannot choose which words were uttered, and ambiguity must favour the accused.

p. 5
02

Ingredients of the offence of threatening to kill under section 223(1) of the Penal Code

Holding

The ingredients are: existence of a threat to life; that the threat was caused directly or indirectly to reach the victim; and that it was made without lawful excuse

Reasoning

Relying on Nancy Wanja Githaka v Republic, Phenias Njeru Koru v Republic and Baya Lwambi Hare v Republic, the court set out the ingredients: a threat to kill, made without lawful excuse, uttered verbally or in writing or by other means, and caused directly or indirectly to reach the person threatened. The prosecution must offer credible and irrefutable evidence on each element beyond reasonable doubt.

p. 4
03

Whether the prosecution discharged the burden of proof beyond reasonable doubt

Holding

It did not; reasonable doubt was cast and must be resolved in favour of the accused

Reasoning

The court reaffirmed that the burden lies on the prosecution and the standard is proof beyond reasonable doubt, defined as proof leaving the court firmly convinced of guilt with no real possibility of innocence. The court could not state with conviction that the accused threatened to kill the complainant; the accused's defence was probable and not dislodged; the doubt was not unreasonable and the court cannot fill gaps in the prosecution case.

p. 6

Legal principles established

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  • Words alleged to constitute a threat to kill must be clear and unambiguous; ambiguity must be resolved in favour of the accused
  • Any ambiguity in the alleged threat must be resolved in favour of the accused; the court may not infer meaning to save a defective prosecution case
  • Where there is bad blood or a grudge between the parties, the prosecution evidence must be examined with great caution

Court orders

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  1. 1.The accused person is found NOT GUILTY of the offence of Threatening to kill contrary to section 223(1) of the Penal code
  2. 2.The accused person is hereby ACQUITTED in respect of the charge
Jurisdiction invoked
Original criminal jurisdiction under the Penal Code, section 223(1)

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 Kilungu (Criminal Case E551 of 2023) [2026] KEMC 17 (KLR)", Case Analysis (2026). Makindu SPMC Criminal Case No. E551 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/17/eng@2026-02-05

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