Kipsang v Republic (Criminal Appeal E009 of 2024) [2026] KEHC 13139 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 13139 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT ELDORET CRIMINAL APPEAL E009 OF 2024 PK ROTICH, J JULY 29, 2026 BETWEEN JONATHAN KIPSANG ........................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an appeal against conviction and sentence in the judgement of Hon. R. Odenyo (SPM) delivered on 14/1/2025 in Eldoret CM Criminal case No. 076 of 2023) JUDGMENT 1. The appellant was charged with threatening to kill contrary to Section 223 (1) of the Penal Code. The particulars of the offence are that on the 19th day of March, 2023 at Chepkero Location in Ainabkoi Sub-county within Uasin Gishu County while armed with a knife the accused threatened to kill Samuel Kipsang while uttering the words “ nitauwa kila mtu kwa hii nyumba” (I will kill everybody in this house) 2. The trial court considered the evidence of 5 prosecution witnesses and one (1) defence witness and found the accused guilty of the offence of threatening to kill. 3. Upon conviction the accused was sentenced to serve 10 years imprisonment. Being dissatisfied with the conviction and sentence, the accused preferred this appeal. The appeal is based on two grounds: 4. 1. That he is a first offender and therefore begs for leniency. 2. That he committed the offence herein when he was absolutely intoxicated. PW1, Samuel Kipsang Kibiego, stated he lived in Chepkero and he is a livestock trader. On 9/3/2023, PW1 stated, the accused who is his son came home and he got a phone call that he was chasing everybody and he reported the matter to the police. In the evening, PW1 stated, the accused assaulted https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13139/eng@2026-07-29 1
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him with a knife at home and threatened to kill him and his wife. PW1, further, stated that the accused also threatened that he will look for his brother who works in Central as a watchman and kill him also. 5. On cross-examination, PW1 stated that the appellant has threatened him several times to withdraw this case or he would kill him. PW1 also stated he gave the accused 2.5 acres of land but he leased to someone else. Even the day he testified, PW1 stated, the appellant called him in the cells and threatened to finish him unless he drops the case. 6. PW2 Sarah Kipsang lived in Flax and she is a farmer. On 19/3/2023 at 8:00 pm her son, the appellant stated, chased her from home. PW2, further stated that the appellant quarrelled with his father (PW1) and he had a wooden plank. PW2, further, stated that the appellant was usually very violent when he is drunk and that she went back home at about midnight to join her husband in bed and they slept. 7. On cross-examination, PW2 stated she did not see the appellant assaulting the complainant. PW2, however, stated the appellant had previously assaulted the PW1 several times in her presence and even cut him. PW2, further stated that the appellant was allocated land by PW1 but still wanted to use his land after leasing out the land allocated to him. 8. On re-examination, PW2 stated, that the accused had severed the finger of PW1 in the past and was convicted and sentenced. 9. PW3, Amon Koech Sabuhi, the appellant’s brother lives in Chebomat village in Chepkero Location and he is a business man and farmer. On 19/3/2023, PW3 stated, he sent workers to go and plant maize for him in his farm. He, however, later received a call from his brother Jonathan, PW3 stated, that he had chased away his workers because he had not tilled for him his land and he sent him Kshs.300 to hire a person to cultivate for him. On 23/3/2022 when he went to his farm with workers to carry out planting, as they started working his mother joined them. Shortly thereafter, the appellant came to the scene, took a jembe and threatened to hit his mother with it. He threw the jembe at her but missed. 10. The appellant gave unsworn evidence. He states on the date he allegedly threatened the complainant he was not at home. He claims he was arrested of being in possession of alcohol and was drunk. He denied threatening the complainant. 11. The issue for determination by this Court whether the sentence of 10 years meted on the appellant is appropriate and fair. This being 1st appeal, this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see. Mark Oiruri Mose -vs- Republic (2013) eKLR) 12. PW1, Samuel Kipsang Kibiego, the complainant, who is the appellant’s father stated that on 9/3/2023 he got a phone call that the appellant was chasing everybody at their home and he reported the matter to the police. In the evening, PW1 stated, the accused assaulted him with a knife at home and threatened to kill him and his wife. PW1, further, stated continued threatening him severally while in remand to withdraw the case or he would kill him. Even the day he testified, PW1 stated, the appellant called him in the cells and threatened to finish him unless he drops the case. PW1 also stated he gave the accused 2.5 acres of land but he leased to someone else 13. Evidence on record by the appellant’s mother. PW2 and brother P3 show the accused is a violent person when he is drunk. PW2 also stated that the appellant was allocated land by PW1 but still wanted to use his land after leasing out the land allocated to him 14. The appellant, however, begs for leniency stating he was intoxicated and that he is a first offender. This court finds that this appeal has merit and affords the appellant a 2nd chance. Consequently, the court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13139/eng@2026-07-29 2
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reduces the sentence of 10 years imprisonment meted on the appellant to 5 years imprisonment. The period when the appellant was in custody between 3/4/2023 he was charged to 27/3/2024 when he was convicted is reduced from the sentence pursuant to the provisions of section 333(2) of the Criminal Procedure Code. 15. Right of appeal within 14 days DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS THIS 29TH DAY OF JULY 2026. HON. P. K. ROTICH JUDGE In the presence of: Appellant in person Mr. Mwaita holding brief for Ms. Kirenge for DPP https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13139/eng@2026-07-29 3
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