Republic v Hassan (Criminal Case 60 of 2018) [2020] KEMC 23 (KLR)

Public Prosecutions. All the other adjournments have been clearly recorded in the copy of proceedings herein and do not therefore require any additional explanation. Substantive Facts of The Case 4. PW1, Peter Gikundi, stated that on the material morning, the defendant herein, then a customer at their bar, Neema Bar, turned violent when he reminded him of a Kshs. 500/= debt being the cost of alcoholic drinks that he served him the previous night, which had not been settled by him as at the time. He stated that in the process, the defendant uttered the following word: 'If you leave this place, I will look for boys who will drown you in the river6'. The complainant soon thereafter called the police because of the threats. 5. The matter was handled by PW2, No. 86053 PC Erickson Kiptoo, of Hola Police Station. The report that was made to them, and which he investigated, was that the defendant threatened the complainant that he would hire people to throw him inside River Tana. 6. The defendant in his evidence in defence, DW1, confirmed having visited the complainant's bar and that they disagreed with the complainant at the time of payment for the alcoholic drinks which he had ordered. That a commotion then ensued when he was confronted with some other colleagues of the complainant's. That he was assaulted and injured in the process. That the assailants then rushed to the police on false allegations that he had threatened their life. He denied uttering such words or threatening to kill them as alleged. Issues, Burden and Standard of Proof 7. It is well settled that the burden of proving a criminal charge such as the present one squarely lies on the prosecution, and in the rarest of circumstances, does that burden shift to the defendant. The standard of proof on the part of the prosecution is beyond reasonable doubt. The main issue herein is therefore whether the prosecution has discharged its burden of proving the current charge to the required standard of beyond reasonable doubt to warrant a conviction under section 215 of the Criminal Procedure Code7. 8. The High Court in Nancy Wanja Githaka v Republic [2015] eKLR, laid out the essential ingredients of the charge under section 223(1) of the Penal Code as there being an existence of a threat to life, and a person is directly or indirectly caused to receive the threat. For a threat to be established, there must be established an intention of a person to harm another person. That threat has to be real, as a mere threat that does not have an intention of harm may be subject to some other actions and not necessarily a criminal charge under section 223(1) of the Penal Code8. Justice Limo, in Nancy Wanja Githaka v Republic, supra, stated as follows:[A]ccording to the particulars of the charge sheet the threat is not clearly disclosed but evidence of P.W.1 indicated that the threats were comprised in the following words: i. "That I stay where I lived". ii. "That I would be bewitched and my pants would be taken to Meru". 5 On 16.01.2020, during the defence hearing 6 Refer to the evidence at page 11 of the handwritten notes of the proceedings 7 Cap. 75 Laws of Kenya 8 Cap. 63 Laws of Kenya https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/23/eng@2020-02-04 2

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iii. "Leo hii natamfafuta Mrs. Chomba". (sic) The trial court concluded that the words amounted to threats to kill. That finding in my view with respect to the learned trial magistrate was in error. Save for the 2nd message of bewitching and taking her pant to Meru which I find abusive and provoking the SMS does not amount to threats to kill though if proved could have amounted to a lesser ofience created under Section 29 of the Kenya Information and Communication Act... (sic) 9. In this case, it is common ground that the defendant herein met with the complainant herein on the material morning. There was a disagreement between them. Of concern to us herein, is however, the words that he is alleged to have uttered. Whether any word was, or words were, uttered by the defendant herein; directed to, and received directly by, the complainant; which words had the intention or meaning of causing harm to the complainant. 10. It is upon the prosecution to prove to the required standard beyond reasonable doubt that the defendant herein conducted himself in a manner that would suggest that he had the intention to kill the complainant. Justice Mrima of the High Court of Kenya in Lawrence Otieno Ochacho v Republic [2016] eKLR observed as follows: [T]he record is again silent on what the appellant actually did with the panga. Did the appellant utter any words (sic) while so armed" Did the appellant do or conduct himself in a manner likely to suggest his intention to kill the complainant" How long did it take for the appellant to return to his house to collect the knife" And the questions seem unending (sic) Determination 11. PW1, the complainant herein, confirmed that the defendant herein threatened to hire people to drown him in River Tana. The defendant was directing those words at him and he directly received them. That would have had a direct meaning and intention of killing the complainant. 12. The report that the complainant made to the police, and which formed the basis of the charge herein, is however that the defendant herein threatened to hire youths to throw him into the river. These would also have had a meaning of causing harm to the complainant. In this region, being thrown into the river, deep, crocodile infested River Tana, connotes death either by drowning or by mauling by crocodiles. 13. Since the words uttered take centre stage in the threats, the words themselves must be proved to have been uttered and their meaning interpreted. The charge as framed herein had the threatening words allegedly uttered. The evidence on the words alleged to have been uttered herein is however seriously contradictory. I therefore find material contradiction and ambiguity in the words that were alleged to have been uttered and the intention of the defendant, the alleged utteror of the words. Throwing into a river, and drowning in a river, their meaning notwithstanding, might lead to difierent defences. The charge with the words as framed, has therefore not been proved to the required standards. If we were to go by the complainant's evidence, that the defendant threatened to have him drowned in the river, then that would have directly amounted to threat to harm and hence kill. The complainant would have made that report to the police, the police would have then framed the charge accordingly. It is therefore dificult for me to ascertain the words that were allegedly uttered, if any, and their intention. The prosecution has thus failed to prove the words that were uttered herein and its case against the defendant therefore fails for want of proof. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/23/eng@2020-02-04 3

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Final Disposal Orders 14. Pursuant to the provisions of section 215 of the Criminal Procedure Code, I do hereby acquit the defendant herein of the ofience of Threatening to Kill contrary to section 223(1) of the Penal Code, and as charged herein. DATED, SIGNED AND DELIVERED IN HOLA IN OPEN COURT THIS 04TH DAY OF FEBRUARY, 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Buko Court prosecutor: Atika Defendant: Present Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/23/eng@2020-02-04 4

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