Republic v Kuyu alias Kitengela (Criminal Case E050 of 2026) [2026] KEMC 268 (KLR)
The bottom line
#A Lamu court convicted a man of threatening to kill and malicious damage, ruling that actions, not just words, count as criminal threats.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the accused threatened Stephen Buya.
- 2.Whether the accused with malice damaged the property of Stephen Buya.
Key legal issues
#Whether the ingredients of threatening to kill under section 223(1) of the Penal Code were proved
Yes - although no threatening words were uttered, the accused's conduct in throwing a panga at the complainant and later promising to kill him caused the complainant and his wife to perceive a threat to their lives, proving the ingredients.
The court applied the ingredients restated in Phenias Njeru Koro v Republic, noting that section 223(1) covers threats received directly or indirectly, whether in writing or not. The complainant's unchallenged evidence (he was not cross-examined) and Pw2's corroboration established that the accused threw a panga at the complainant, attempted to attack the wife, and promised to kill the complainant, satisfying the perception-of-threat element.
Whether the accused maliciously damaged the complainant's motorcycle under section 339(1) of the Penal Code
Yes - the accused threw the panga destined for the complainant, who evaded it, and it destroyed the motorcycle's side mirror and dashboard; the damage and its extent were proved by the physical motorcycle and photos (Pexh 1(a)-(e)).
The court found the fact that the motorcycle was damaged by the accused was not denied or challenged, and the accused's defence carried no probative value against the weight of the prosecution's evidence. The extent of damage was verified because the physical motorcycle was produced in court together with photographs.
Weight of the accused's alibi defence
The defence of alibi - that he was away collecting firewood with his brother Therbit - amounted to mere denial and was dismissed, as Therbit was not called to corroborate it.
The accused did not explain the circumstances of his conduct but instead placed himself away from the scene, alleging he was with Therbit collecting firewood. He never called Therbit as a witness, so his evidence was uncorroborated and was found to be a mere denial with no probative value against the prosecution's evidence.
Legal principles established
#- To prove threatening to kill, the prosecution must show that without lawful excuse the accused uttered or directly or indirectly caused a threat to be received, in circumstances where the complainant perceived a threat to their life.
- Under section 223(1) of the Penal Code, a threat need not be by words alone; conduct causing a person to receive a threat, whether in writing or not, suffices.
Court orders
#- 1.The accused is convicted in each count under section 215 of the CPC - guilty of threatening to kill contrary to section 223(1) of the Penal Code and malicious damage to property contrary to section 339(1) of the Penal Code.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original criminal jurisdiction under the Criminal Procedure Code and the Penal Code (charges under sections 223(1) and 339(1), Penal Code; conviction under section 215 CPC)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The accused is thus guilty of the ofience of threatening to kill contrary to section 223(1) of the Penal Code and malicious damage to property contrary to section 339(1) of the Penal code and he is accordingly convicted in each count under section 215 of the CPC.
A reading of section 223(1) the threats are not only to be by way of uttering the threat as indicated in the Phenias case, but also when a person directly or indirectly causes any person to receive, a threat, whether in writing or not.
At this point it sufices to note that the complainant was not cross examined and as such the evidence by the complainant remains unchallenged.
It is thus the finding of the court that the defence amounted to mere denial and I proceed to dismiss the same.
Issues in the judgment
#The judgment states the offence date as 17/2/2026 but the judgment itself is delivered on 25 June 2026, implying trial within months; the year 2026 appears anomalous and may be a typographical error for 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kuyu alias Kitengela (Criminal Case E050 of 2026) [2026] KEMC 268 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/268/eng@2026-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.