George Kosida Kimuma v Republic

4. This being a first appellate court, its jurisdiction is well cut out. It is supposed to re-evaluate the evidence afresh and come to its own independent conclusions and findings but having regard to the fact that it did not see the witnesses testify. See Okeno v Republic (1972) EA 32. 5. In the Court below, the prosecution paraded 5 witnesses. Boniface Ogallo Amolo, the complainant, testified as PW1. He told the Court that on 5/6/2024 while in his farm with a group of cane caters, the appellant with one Charles Opani came to the farm while armed with pangas. The appellant hurled insults at him. The one which caught his attention was that the appellant would cut his head which would be found in Nyakach. That he ran to where the cane caters were for safety as they were also armed. The appellant and Charles Opani left promising to return. They never returned. He reported the incident to Chemilil Police station. 6. That he had known the appellant for over 20 years and their respective lands boarded each other. That the appellant had once attacked and cut him with a panga. 7. In cross-examination, he testified that the appellant had threatened him in dholuo that; ‘Obiro ngado nguta ibiroyud nguta Nyakach.’ That the appellant had previously cut his fingers and promised to compensate him but did not. He denied harbouring any hatred against the appellant but admitted that back home, they had had disagreements. He denied being hurt with the judgment in Tamu MCELC No. E011 of 2024 George Kosila Kimuma v Boniface Ogalo Amolo. 8. James Otieno Nyakwaka testified as PW2. He narrated how on 5/6/2024, he was at Katuk village harvesting his cane in the company of PW1 and other cane cutters. This was being supervised by Boniface Ogalo, (PW1) who was his employee and one supervising his farm. That the appellant approached PW1 and told him in Swahili ‘nitakata kichwa yako na kichwa yako itapatikana Nyakach.’ That he had leased a portion of his land No. 1926 to PW1. In cross-examination, he stated that the appellant was speaking in both Swahili and Dholuo. 9. PW3 was William Awinda Abunga. He stated that on the material day, they were cutting cane when at about 3pm, the appellant came with another both armed with pangas. That the appellant threatened PW1 in Swahili that; ‘matako ya mamako, kichwa yako itapatikana Nyakach.’ In cross-examination, he maintained that the threats were made in Swahili towards PW1. That the appellant also spoke same words in Dholuo. 10. Willis Otieno Galo PW4 testified that on the material day, he had visited his uncles in Sidho East. He went to the farm where there was cane cutting. The land belonged to his grandfather but had been leased to PW1. That he saw the appellant with another person come to the farm armed with pangas. The appellant addresses PW1 with hostility that, ‘wewe lazima uhame hapa ama kichwa chako itapatikana Nyakach.’ That he and others were terrified and they reported the incident at Chemelil Police Station. 11. In cross-examination, he maintained that the threats were made in Swahili. That however, there were some words the appellant spoke in dholuo but he did not hear them well. 12. PC Stanley Wuala, PW5 was the investigations officer. He testified that PW1 made a report on 5/6/2024 at about noon. That the appellant had threatened him with the words complained of. He summoned the appellant who presented himself on 15/7/2024 and he arrested him. He recorded statements from witnesses some of who were cane cutters. In cross-examination, he admitted knowing the existence of land disputes between PW1 and the appellant. 13. When placed on his defence, the appellant gave sworn statement. He stated that he occupied land Reference Ksm/Sidho East/1926. That PW1 lives far from his land. That on 5/6/2024 he was at https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5275/eng@2026-04-24 2

page 2 of 5

his work place at No. 34 Kunde Road Nairobi off Argwings Kodhek Road. in Nairobi. He denied threatening to kill PW1. 14. He stated that on 3/6/2024, he received a call from his cousin Charles Ouma Opani, his farm manager that PW1 had trespassed to into his farm and started harvesting mature cane and delivering the same to Chemelil Sugar Company. He asked Charles to go and report the incident at Chemelil Police Post. Charles later gave him the OB report Nos. 07/04/06/2024 and 09/08/06/2024, respectively. That he also reported the incident to the area village elder Marikus Golo Odoro. He later went to record a statement with the police on 15/6/2024 but the police declined to record it. 15. That he later obtained an order from court in Tamu MCELC No. E011 of 2024 to stop payment of the cane proceeds to PW1. That one Maurice had sued him but the Court found that he had obtained title to Ksm/Sidho/1926 by way of adverse possession. He was stood down at that point. 16. When he returned on 24/11/2025, he produced documents to show his interaction with Inspector Kiapa on 16/6/2024. He stated that he had since lodged a complaint with IPOA against police officers. He was never cross-examined. 17. Dw2 was Charles Ouma Opani. He stated that the appellant was his uncle. That he did not hear the appellant threaten PW1. He and the appellant were at the farm on 15/6/2024 and not on 5/6/2024. That PW1 started harvesting the cane on 3/6/2024. He went there but PW1 answered him that he knew what he was doing. Again the harvesting continued on 6/6/2024 when he reported to the village elder. Reports to the police did not yield any response. That PW1 harvested the cane for 2 weeks from 3/6/2024 to 18/6/2024. 18. On cross-examination, he stated that he reported the harvesting of the appellant’s cane on 3/6/2024 and 4/6/2024 but he had no OB Numbers for both. That the incident happened on 5/6/2024 but he was not in the farm with the appellant. 19. Marikus Golo Odoro Dw3 the village elder was visited by Dw2 on 6/6/2024 at his home. Dw2 informed him that someone was harvesting the appellant’s sugarcane. He went to the scene and called the assistant Chief who told the disputants to call a surveyor to come and demarcate the land. In crossexamination, he stated that he did not know what had happened on 5/6/2024. 20. It is on this evidence that the trial court convicted the appellant and sentenced him to 3 years’ imprisonment. 21. The Court has considered the submissions on record and the entire record. All the grounds were argued as one. The Court will likewise determine all the grounds together. 22. The grounds were that the trial court erred in convicting the appellant on insufficient evidence that was contradictory and inconsistent and that the appellant’s defence was not considered. 23. The charge facing the appellant was one of threatening to kill. It was under section 223(1) of the Penal Code which provides: “ Any Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.” 24. In Martin Ng’ang’a Kamanu v Republic (2020) eKLR, the Court held: “ The prosecution was required to establish the following ingredients of the charge that the appellant without lawful excuse uttered words which amounted to a threat to kill the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5275/eng@2026-04-24 3

page 3 of 5

complaint. The uttering of these words must be made in the context that the complainant perceives that he is under a threat of losing his life. The context must come out in the evidence that will be adduced by the prosecution witnesses and the explanation given by the accused in his defence.” 25. In Philip Nzaka Watu v Republic (2016) eKLR, the Court of Appeal held: “ However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, it has been recognized in many decisions of this Court, some inconsistency in evidence may signify the veracity and honesty, just as unusual uniformity may signify fabrication and coaching of witnesses.” 26. In Dickson EliaNsamba Shapwata & Anor v Republic CRA No. 92 of 2007, the Tanzanian Court of Appeal held: “ In evaluating discrepancies, contradictions and omissions, it is undesirable for a Court to pick out sentences and consider them in isolation from the rest of the statement. The Court has to consider whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 27. It was the appellant’s submission that the evidence by the prosecution was insufficient and contradictory. That PW1 alleged that the threatening words were spoken in dholuo while PW2, PW3 and PW4 insisted that they were spoken in Swahili. To the appellant this was fatal. 28. The prosecution evidence was that PW1 was in the farm on the material day, 5/6/2024 cutting cane. He was with cane cutters totalling 9. He then saw the appellant approach him in the company of Dw2. They were armed with a panga each. That the appellant hurled insults at PW1. That the words that caught his attention were that he would cut his head which would be found in Nyakach. PW1 felt threatened and retreated to where the cutters because they were likewise armed. After those threats and the ones repeated on 15/6/2024, PW1 withdrew from that village to Nyakach for sometime. 29. In his defence, the appellant denied the charges. He stated that on the alleged day, he was at his place of work in Nairobi. That he received a report from Dw2 that PW1 had entered his farm on 3/6/2024 and had started cutting the mature cane. He asked Dw2 to go and report to the police which the latter did. That Dw2 testified that PW1 continued to cut the cane from 3/6/2024 until 17/8/2024. The appellant’s testimony and that of Dw2 was that the appellant only visited the farm on 15/6/2024. 30. From the forgoing, it is clear that there was an incident in the sugar farm on the 5/6/2024. The testimony of PW1 was not only firm as to what happened but it was also corroborated by PW2, PW3 and PW4. While it is true that the language used in the uttering of the alleged words was said by PW1 to have beeen in dholuo while his witnesses stated them to have been in Swahili, there was evidence that, while threatening and insulting PW1, the appellant was speaking in Dholuo, Swahili and English. 31. In the words of the Court of Appeal in the case of Philip Nzaka Watu v Republic (Supra) no two witnesses recall exactly the same thing to the minutest and no two people perceive the same phenomena exactly the same. The contradiction in the threatening words being in dholuo or Swahili was not so material as to affect the evidence of the prosecution. 32. The appellant was placed at the scene of the incident. His defence of alibi was being raised to late in the day. It was never raised during the cross-examination of the 5 witnesses of the prosecution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5275/eng@2026-04-24 4

page 4 of 5

The cross-examination mainly majored in showing that there was a dispute of land between PW1 and the appellant. There was no challenge whatsoever as to the appellant’s presence on the farm on the 5/6/2024. 33. In Karanja v Republic (1983) KECA 35 (KLR), the Court of Appeal held: “ Nevertheless, we agree with the observations of the Court of Appeal for Eastern Africa in R v Ahmed Bin Abdul Hafid (1934) EACA 76, …that in a proper case the Court may, in testing a defence of alibi and in weighing it with all the other evidence, to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence, or his alibi, if it amounts thereto, at an early stage in the case, and so that it can be tested by those responsible for the investigation and prevent any suggestion of afterthought.” 34. In the present case, as already observed, there was no suggestion whatsoever during the testimonies of the five (5) prosecution witnesses that an alibi would be raised as a defence. Accordingly, the trial court properly considered and rejected the appellant’s defence. 35. In this regard, it was clear that the incident occurred on 5/6/2024. The threats were made to PW1. The appellant was in the company of another and they were both armed. That not only did PW1 feel threatened by running away from the appellant to the safety of his 9 sugarcane cutters who were armed, but he later on withdrew from the village to Nyakach out of fear. The long land dispute between the two could have provoked the appellant to utter the alleged words. 36. In the premises, this Court does not fault the findings of the trial court. The conviction was safe and the sentence lawful. The appeal is without merit and is hereby dismissed. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF APRIL, 2026. A. MABEYA, FCI ARB JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5275/eng@2026-04-24 5

page 5 of 5