Republic v Malaba (Criminal Case E242 of 2025) [2025] KEMC 380 (KLR)

The Accused Person pleaded not guilty to all the charges facing him. Consequently, this matter was set down for hearing when the prosecution and the defence adduced evidence summarized below. Prosecution’s Case PW1 Rael Mutakale Khamuka testified that on the date of the incident at around 1000hrs while digging in her shamba while in the company of her her daughter - in - law one Bentar (PW3), and her two grandsons Zidane and Vincent, the Accused Person went to where they were and told her: ‘Mimi lazima nitakuua…’ Her gransons screamed when her neighbour Mary (PW2) responded. Mary told the Accused Person not to cut her. She added that the Accused Person told her: ‘Umenona mwili na macho, mjinga kama kuma ya mama yako.’ She reported the matter to Bukembe Police Station. Police officers responded to the scene and arrested the Accused Person who was holding a jembe. She identified the jembe that the Accused Person had that day. PW2 Mary Nekesa Simiyu testimony was that PW1’s shamba is situated near her home. She recalled that on the date of the incident, she heard screams from PW1’s shamba. She proceeded to the shamba when she found the Accused Person holding a panga. She heard the Accused Person saying: ‘Wewe ni mjinga kama kuma ya mama yako…wewe unanona tu, utanijua…’ She added that the Accused Person wanted to cut PW1 with a jembe that day. In cross-examination, she denied having come to testify to fix the Accused Person. She reiterated that she saw the Accused Person with the jembe before this court on the date of the incident. PW3 Benter Wekesa recalled that on the date of the incident while digging with PW1, Zidane and Vincent in PW1’s shamba, the Accused Person went to Kitale CMC CR. No. E1634 of 2023 Page 2 of 11 Benard Juma Mabuga Judgment

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where they were digging and asked: ‘Kwa nini unalima hii shamba…’ while raising a jembe to cut PW1. She also heard the Accused Person abusing PW1 thus: ‘Hiyo nyumba yako itakuwa likubiri…ulizaa watotot wajinga…wewe ni mjinga kama kuma ya mama yako…’ In cross-examination, she stated that on the date of the incident the Accused Person was cultivating sugarcane near the scene. PW4 No. 62860 CPL Dennis Kasure of Bukembe Police Station investigated this case. His testimony was that on the date of the incident at around 1028hrs, PW1 went to the police station while in the company of PW2 and her two grandsons when she reported that the Accused Person had gone to her shamba with a jembe and told her: ‘Leo nitakukata…’ He proceeded to the scene but did not find the Accused Person. He interviewed witnesses who corroborated PW1’s version of events of what had transpired on the date of the incident. He added that the Accused Person was arrested on 02nd March 2025. He produced the jembe recovered from the Accused Person as an exhibit. In cross-examination, he stated that he arrested the Accused Person with the jembe on the date of his arrest. Accused Person’s Case After the close of the prosecution case, this court ruled that the Accused Person had a case to answer. The Accused Person elected to give sworn testimony and called two witnesses. DW1 Emmanuel Wafula Barasa testified that on the date of the incident while in his sugarcane farm in the company of DW2, they found PW1 uprooting his sugarcane near their common boundary. He questioned her Kitale CMC CR. No. E1634 of 2023 Page 3 of 11 Benard Juma Mabuga Judgment

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only for PW1 to tell him: ‘ukiendelea nitakuweka ndani…’ He walked back to his home. He denied threatening and abusing PW1. In cross-examination, he stated that he did not report the destruction of his sugarcane by PW1 to the police. He added that he did not find it necessary to report the sugarcane destruction to the police since he thought that her engagement with PW1 was enough for PW1 to stop the destruction. DW2 Jacob Mukhwana Makokha testified that he was with the Accused Person in the Accused Person’s shamba on the date of the incident when he saw PW1 uprooting the Accused Person’s sugarcane along their common boundary. He added that when the Accused Person questioned PW1 about the destruction, PW1 told him: ‘Nitahakikisha umeng’oa miwa na uozee ndani…’ He also stated that the Accused Person did not have a jembe on the date of the incident. In cross-examination, he admitted that he saw PW1 and the Accused Person engaging each other on the date of the incident. DW3 Musa Barasa testimony was that PW1 bought land from the Accused Person’s brother. He added that on the date of the incident he saw PW1 uprooting the Accused Person’s sugarcane and that he heard PW1 telling the Accused Person: ‘Nitahakikisha umeng’oa miwa vile uling’oa miti na nitahakikisha umeozea ndani…’ ANALYSIS AND DETERMINATION This court has carefully considered the evidence on record. The only issue that merits determination is whether the prosecution proved their case against the Accused Person beyond reasonable doubt. Kitale CMC CR. No. E1634 of 2023 Page 4 of 11 Benard Juma Mabuga Judgment

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Section 223(1) of the Penal Code set outs the ingredients of the offence of threatening to kill in the following terms: 223.Threats to kill (1) 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.” Courts in this jurisdiction have had an ocassion to distill the ingredients of the offence of threatening to kill. In Kennedy Kigen Leting –v- Republic (2020) KEHC 3620 (KLR), the court held that the offence of threatening to kill is complete when a person simply utters a threat to kill another person. In Martin Ng’ang’a Kamanu v Republic [2020] eKLR, the court rendered itself thus regarding this offence: 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 complainant. The uttering of these words must be made in the context that the complainant perceives that he is under 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. The evidence led by the prosecution and the defence placed PW1 and the Accused Person at the scene of crime. PW1 testified that on the date of the incident, the Accused Person told her: ‘Mimi lazima nitakuua…’ PW3 on the other hand stated that on the date of the incident, he heard the Accused Person telling PW1: ‘Hiyo nyumba yako Kitale CMC CR. No. E1634 of 2023 Page 5 of 11 Benard Juma Mabuga Judgment

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itakuwa likubiri…’ Likubiri in the Bukusu dialect refers to a house left behind by its dead owners. The words: ‘Mimi leo nitakuua’ and ‘Hiyo nyumba yako itakuwa likubiri’ in their ordinary meaning show that the said words could make one one perceive that he is under a threat of losing his life. In this case, in deed those words made PW1 perceive that she was under a threat of losing her life hence prompting her to report the incident at Bukembe Police Station. It is against this background that this court finds and holds that the Accused Person threatened to kill PW1. The second count facing the Accused Person is set out under Section 94 (1) of the Penal Code thus: “94. (1) Any person who in a public place or at a public gathering uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is to be occasioned is guilty of an offence and is liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months or both. (2) In this section “public gathering” means(a) any meeting, gathering or concourse of ten or more persons in any public place; or (b) any meeting or gathering which the public or any section of the public or more than fifty persons are permitted to attend or do attend, whether on payment or otherwise; or (c) any procession in, to or from a public place.” In Caxton Mulinge Kyuvu v Republic [2017] eKLR it was held that in order for the prosecution to discharge its evidential burden in the case before me, the prosecution is required to prove that: (i) The accused person was at a public place. (ii) He used abusive words as against the Complainant. (iii) He acted with an intent to provoke a breach of the peace. Public place Kitale CMC CR. No. E1634 of 2023 Page 6 of 11 Benard Juma Mabuga Judgment

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PW1, PW2, PW3, and the Accused Person were all in agreement that the altercation between PW1 and the Accused Person occurred in a shamba reportedly belonging to PW1. The Penal Code defines public place as follows: “public place” or “public premises” includes any public way and any building, place or conveyance to which, for the time being, the public are entitled or permitted to have access either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meetings or assembly or as an open court” The Interpretation and General Provisions Act defines a public place as: “public place” includes every place to which the public are entitled or permitted to have access whether on payment or otherwise;” Going by the definition of a public place, it follows that a private shamba can not be by any stretch of imagination be a public place. The prosecution having failed to surmount the first hurdle of proving the offence of offensive conduct, it will be an academic exercise for this court to determine if the prosecution proved the other ingredients of this offence beyond reasonable doubt. Be that as it may, the evidence adduced by the prosecution in support of count 2 discloses an offence of creating disturbance in a manner likely to cause a breach of peace contrary to section 95 (1) (b) of the Penal Code. It is against this backdrop that this court seeks to establish whether it can proceed to convict the Accused Person for the offence of creating Kitale CMC CR. No. E1634 of 2023 Page 7 of 11 Benard Juma Mabuga Judgment

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disturbance in a manner likely to cause a breach of peace contrary to section 95 (1) (b) of the Penal Code. The answer to the above question lies in section 179(2) of the Criminal Procedure Code which states: "179(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it" The section above shows that an Accused Person can be convicted of a minor/cognate offence related to the offence facing him even though he was not charged with that minor/cognate offence. The Black’s Law Dictionary 9th Edition page 1186 defines a cognate offence as: “A lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category.” In David Mwangi Njoroge v Republic [2015] eKLR it was held that: “...the issue of substituting an offence with the one for which the evidence is established is not an obvious case. The offence substituted Kitale CMC CR. No. E1634 of 2023 Page 8 of 11 Benard Juma Mabuga Judgment

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must be cognate and minor to the offence that an accused was initially charged with.” Clearly, guided by the authorities above, count 2 facing the Accused Person is related to the offence of creating disturbance in a manner likely to cause a breach of peace contrary to section 95 (1) (b) of the Penal Code. Count 2 carries a sentence of six months imprisonment without an option of a fine on conviction. On the other hand, the offence of creating disturbance in a manner likely to cause a breach of peace contrary to section 95 (1) (b) of the Penal Code attracts a sentence of a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months or both. The foregoing shows that the offence of creating disturbance in a manner likely to cause a breach of peace attracts a harsher sentence than the offence of offensive conduct that the Accused Person was charged with in count 2. Therefore, the provisions of section 179 (2) of the Criminal Procedure Code cannot be invoked in this case. Accused Person’s Defence This court has duly considered the Accused Person’s Defence. The Accused Person simply denied committing the offences herein. He accused the complainant of having destroyed his sugarcane on the date of the incident. However, it should be remembered that the Accused Person never cross-examined the prosecution witnesses along the issue of PW1 Kitale CMC CR. No. E1634 of 2023 Page 9 of 11 Benard Juma Mabuga Judgment

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destroying her sugarcane on the date of the incident. The alleged destruction of the Accused Person’s sugarcane by the complainant must have been an afterthought. In any event, even if the complainant destroyed the Accused Person’s sugarcane on the date of the incident, that did not excuse the Accused Person’s conduct of threatening to kill PW1 and abusing her. If at all the alleged destruction of his sugarcane occurred, the Accused Person’s recourse lay in reporting that incident to the police for further action. Members of the public are at all times encouraged not to take the law in their hands for an orderly society, For the reasons above, this court dismisses the Accused Person’s defence in its entirety for being a mere denial and an afterthought. DETERMINATION Flowing from the above, this court makes the following orders: a) The Accused Person is convicted under Section 215 of the Criminal Procedure Code for the offence of threatening to kill contrary to section 223 (1) of the Penal Code; and b) The Accused Person is acquitted under Section 215 of the Criminal Code for the offence of offensive conduct contrary to section 94 (1) of the Penal Code. Judgment accordingly. Judgment read, signed, and delivered in open Court at Bungoma this 15th day of October 2025 T. O. OMONO SENIOR RESIDENT MAGISTRATE Kitale CMC CR. No. E1634 of 2023 Page 10 of 11 Benard Juma Mabuga Judgment

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In the presence of: Accused Person Ms……for ODPP C/A: Mr. Rioba Kitale CMC CR. No. E1634 of 2023 Page 11 of 11 Benard Juma Mabuga Judgment

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