Republic v Mueke (Criminal Case E064 of 2023) [2026] KEMC 411 (KLR)
The bottom line
#A Makindu court acquitted a man on two criminal charges after finding prosecution witnesses contradicted each other and one charge rested on an unconstitutional law.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the accused person threatened to kill the complainant on the material day
- 2.Whether the accused person created a disturbance in a manner likely to cause a breach of the peace on the material day
- 3.Whether the prosecution has proven its case against the accused person to the required standard
Key legal issues
#Constitutionality of section 95(1)(b) of the Penal Code and its effect on pending charges
The court declined to determine count two on the merits, holding that section 95(1)(b) having been declared unconstitutional, null and void ab initio by the High Court (LSK v DPP, Mwamuye J), the prosecution on that count was fatal and the court lost jurisdiction to convict.
Relying on the doctrine of stare decisis, the court held itself bound by the High Court decision invalidating section 95(1)(b). A criminal court derives jurisdiction from valid law; once the provision is void ab initio, proceeding to conviction would amount to enforcing a non-existent offence and any conviction would be a nullity. The court therefore refrained from discussing the merits of the second count.
Whether the accused threatened to kill the complainant (count one)
The court found the prosecution failed to prove the threat beyond reasonable doubt; contradictions as to the date of the incident and differing accounts among witnesses created a reasonable doubt, and the accused was acquitted.
The complainant placed the incident in March 2023 while the particulars alleged 10/1/2023; PW2 said 10/3/2023 and PW3 said 10/1/2023. The complainant never stated the accused threatened to kill her. Where there is bad blood between parties, evidence must be approached with great caution. The discrepancies were fundamental and went to the root of the case, and the court could not patch up the prosecution case.
Effect of existing grudge or bad blood on the prosecution evidence
Where there is an existing grudge between parties, the court must consider the prosecution evidence with great caution, as parties may resort to criminal sanctions to settle old scores.
The court noted the long-standing dispute between the accused, his siblings and the complainant over an access road/footpath. Citing Ayub Muchele v Republic, it held that animosity is a factor properly taken into account, and cautioned that parties should embrace alternative dispute resolution rather than criminal process to settle feuds.
Standard of proof and treatment of discrepancies in evidence
Minor discrepancies may be overlooked, but contradictions that depict different scenarios of what transpired are fatal; the burden lies on the prosecution and doubt must be resolved in favour of the accused.
The court applied Philip Nzaka Watu v Republic and Dickson Elia Nsamba Shapwata: discrepancies must be assessed in context to determine whether they are minor or go to the root. It reiterated the Woolmington golden thread and Lord Denning's formulation in Miller v Ministry of Pensions of proof beyond reasonable doubt as a high degree of probability, not certainty.
Legal principles established
#- Where an accused person is charged under a statutory provision later declared unconstitutional, null and void ab initio by a superior court, the effect on a pending criminal case is generally fatal to the prosecution, and the court cannot convict under a provision deemed never to have existed.
- The doctrine of stare decisis binds subordinate courts to decisions of the High Court unless overturned by a superior court.
- Discrepancies in prosecution evidence that go to the root of the case cannot be overlooked and vitiate a conviction.
Court orders
#- 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.The accused person is found NOT GUILTY of the offence of Creating a disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal Code
- 3.The accused person is hereby ACQUITTED in respect of both counts
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Criminal jurisdiction under the Penal Code (Cap 63), first-instance trial of charges under sections 223(1) and 95(1)(b) of the Penal Code
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.
a) The accused person is found NOT GUILTY of the offence of Threatening to kill contrary to section 223(1) of the Penal code;
c) The accused person is hereby ACQUITTED in respect of both counts.
My view is that where an accused person is charged under a statutory provision that is later declared unconstitutional, null and void ab initio by a superior court, the effect on a pending criminal case (even one awaiting judgment) is generally fatal to the prosecution.
A criminal court derives its jurisdiction from valid law. Once the provision is void, the court effectively loses jurisdiction to determine the offence. Any conviction would be a nullity.
It is not the duty of the accused person or the court to fill in the gaps or tie up the loose ends in the prosecution case.
Parties should embrace alternative dispute resolution which in most cases maintains the social fabric.
Issues in the judgment
#Internal date inconsistencies in the judgment: the charge particulars allege the offence on 10/1/2023, the complainant testified the incident occurred in March 2023, and PW2 stated 10/3/2023; the court itself noted this but the judgment also states the accused was arrested on 21/1/2023 'as per the charge sheet' although the complainant's report was said to have been made on 10/1/2023.
The judgment cites a future-dated authority (the LSK v DPP decision and the judgment date of 16 July 2026, for a 2023 case) which appears anomalous in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Mueke (Criminal Case E064 of 2023) [2026] KEMC 411 (KLR)", Case Analysis (2026). Makindu SPMC Criminal Case No. E064 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/411/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.