Republic v Malaba (Criminal Case E242 of 2025) [2025] KEMC 441 (KLR)

The Accused Person denied all the charges facing him hence this matter was reserved for hearing when the prosecution and the defence led evidence summarized below. Prosecution’s Case PW1 Fred Juma Khatete is a security guard at Samita Primary School. He recalled that on the date of the incident the Accused Person went to his work place and told him: “Nakuua sai ama tunakufa na wewe…” while armed with a panga and a rungu. He added that PW2 and PW3 witnessed the incident. The two questioned the Accused Person who reportedly told them: “Tokeni hapa ama niwamalize…” He reported the matter to Kuywa Police Station leading to the Accused Person’s arrest and arraignment. PW2 Milcah Makokha testified that on the date of the incident at around 1500hrs while on her way home from church, he saw the Accused Person at Samita Primary School’s gate holding a panga and a rungu. She also stated she heard noise at the school gate as the Accused Person told PW1: “Nitakuua na nijiue…” PW3 Erick Wafula testified that on 23rd February 2025 he received a call from PW1 who informed him that the Accused Person had attacked him at his place of work at Samita Primary School. He proceeded to Samita Primary School where he found a crowd. He also found the Accused Person armed with a panga and a fimbo/rungu. He heard the Accused Person making a lot of noise. He questioned the Accused Person about the incident but the Accused Person was rowdy. PW4 No. 244165 PC (W) Phelisters Simiyu of Kuywa Police Post investigated this case. Kitale CMC CR. No. E1634 of 2023 Page 2 of 9 Benard Juma Mabuga Judgment

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She recalled that on the date of the incident while at the report office, when PW1 and PW3 visited the police post to make a report. PW1 reported to have been threatened at his work place by the Accused Person thus: ‘Leo nitakuua ama uniue….” She added that on the date of the incident, the Accused Person sought help from the village elder’s home and PW3’s home. On 01st March 2025 at around 0530hrs while in the company of her colleagues, she arrested the Accused Person at his home leading to his arraignment. Accused Person’s Case The Accused Person elected to give sworn testimony and called one witness when he was placed on his defence. DW1 Feniwick Malaba recalled that on 01st March 2025 at around 0500hrs while in his house preparing to leave for work, Administration Police Officers from Kuya Police Post went to his home and told him that he was needed at the Chief’s office. He reportedly questioned the police officers about his arrest when they reportedly told him: “utajulia mbele,,,” He was later transferred to Chwele Police Station and arraigned of the offences herein. He denied committing the offences herein. On cross-examination, he denied knowing PW1. He also denied being at the scene on the date and time of the incident. DW2 Paul Wafula Marango spoke to the events of 01st March 2025. He testified that the Accused Person was his neighbour, and that the Accused Person was not at his home on 01 st March 2025. He concluded his testimony by stating that the Accused Person did not commit the offences herein. ANALYSIS AND DETERMINATION Kitale CMC CR. No. E1634 of 2023 Page 3 of 9 Benard Juma Mabuga Judgment

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This court has carefully considered the evidence on record. The only issue that merits determination by this court is whether the prosecution proved beyond reasonable doubt that the Accused Person committed the offence as charged. The offence of threatening to kill is to be found under section 223(1) of the Penal Code: 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.” The provisions of the Penal Code regarding the offence of threatening to kill set out above show that the offence of threatening to kill is complete when a person simply utters a threat to kill another person (see Kennedy Kigen Leting –v- Republic (2020) KEHC 3620 (KLR)). In Martin Ng’ang’a Kamanu v Republic [2020] eKLR, the court set out the ingredients of this offence as follows: 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. PW1 and PW2 testified that the Accused Person threatened to kill PW1. The words uttered by the Accused Person to PW1 on the date of the incident, Kitale CMC CR. No. E1634 of 2023 Page 4 of 9 Benard Juma Mabuga Judgment

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taken in their ordinary sense and meaning, show that the Accused Person threatened to kill PW1. Whereas PW1 and PW2 stated the oral threats in different words, this court notes that those oral threats heard by PW1 and PW2 when read together point to oral threats to PW1’s life. Therefore, the difference in the testimony by PW1 and PW2 can be summed up as mere trifling inconsistencies. In Masika v Republic (Criminal Appeal [2025] KEHC 5191 (KLR), the court stated thus 104 of 2020) about such trifling inconsistencies: Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. (See Osetola vs State {2012} 17 NWLR (Pt1329) 251). It is not every trifling inconsistency in the evidence of the Prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to benefit there from. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. Guided by the authority above, it follows that those trifling inconsistencies in PW1’s and PW2’s testimonies can only be attributed to the challenges attributed to human recollection but not untruthfulness on the part of the prosecution witnesses. The Accused Person’s line of questioning during cross-examination of the prosecutions pointed to a misapprehension by the Accused Person that the offence of threatening to kill can only be proved where an Accused Person is proved to have been armed at the time of issuing the threats. Kitale CMC CR. No. E1634 of 2023 Page 5 of 9 Benard Juma Mabuga Judgment

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It is well settled in this jurisdiction that the offence of threatening to kill is proved when it is proved beyond reasonable doubt that an Accused Person uttered a threat to kill another person. Therefore, the failure by the prosecution to place before this court the items the Accused Person was reportedly armed with on the date of the incident was not fatal to the prosecution’s bid of proving the offence of threatening to kill against the Accused Person. The foregoing inclines this court to hold and find that the evidence on record proves beyond reasonable doubt that the Accused Person threatened to kill PW1. In count 2, the Accused was stated to have committed an offence contrary to Section 95(1)(b) of the Penal Code that provides thus: “(1) Any person who— (b) brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace, is guilty of a misdemeanour and is liable to imprisonment for six months.” In Mule vs. Republic Criminal Appeal No. 873 of 1982 it was stated thus: “1) The offence of creating a disturbance likely to cause a breach of the peace constitutes incitement to physical violence and the breach of the peace contemplating physical violence….. 2) It is not enough to constitute the offence of creating disturbance likely to cause a breach of the peace to show that the accused merely created a disturbance. That disturbance should have been likely to cause a breach of peace. Peace would, for instance refer to the right of wananchi to go about their daily activities without interference. The Kitale CMC CR. No. E1634 of 2023 Page 6 of 9 Benard Juma Mabuga Judgment

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actions of the appellant interfered with people’s activities and therefore caused a breach of peace.” From the authority cited above, it can be concluded that for the offence to be proved beyond reasonable doubt, the prosecution must establish that the accused person caused a brawl or that the accused person created a disturbance in a manner that is likely to cause a breach of peace. A brawl is defined as a rough or a noisy quarrel or fight. The facts as presented before this court show that on the material day, the Accused Person quarreled with the complainant at Samita Primary School. That quarrel attracted the attention of members of the public, leading to the formation of a crowd of curious onlookers at the scene. This set of facts shows that a brawl involving PW1 and the Accused Person occurred on the date of the incident. In the Mule Case (supra) Porter Ag. J was of the view that to prove a case of creating disturbance it is not enough to show that the accused merely created a disturbance, but also that the disturbance should have been likely to cause a breach of the peace. The learned judge described ‘peace’ as referring to the right of ‘wananchi to go about their daily activities without interference. In the instant case, the Accused Person’s conduct caused the complainant to leave his place of work and seek help from the area village elder and PW3. The Accused Person’s conduct also attracted PW2’s attention and members of the public who formed a crowd at the scene. The foregoing is a clear indication that the Accused Person’s conduct prevented the complainant and other members of the public from going about their day-to-day activities without interference, thereby causing a breach of peace. Kitale CMC CR. No. E1634 of 2023 Page 7 of 9 Benard Juma Mabuga Judgment

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Accused Person’s Defence This court has duly considered the Accused Person’s Defence. The Accused Person simply denied committing the offence. He denied knowing the Accused Person, despite the overwhelming evidence on record that he was well known to the complainant. The Accused Person also stated that he was not at home on the date of the incident. He was simply raising an alibi. This court notes that the Accused Person did not cross-examine the prosecution witnesses along the lines of his alibi. The alibi was raised too late in the day. The Court of Appeal in Kiarie Vs Republic (1984) KLR stated as follows on such a defence of alibi raised by the Accused Person at the defence stage: “An alibi defence raises a specific defence and an accused person who puts an alibi defence does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduced in the mind of a court a doubt that is not unreasonable” When the defence of alibi is raised at the defence stage, it should not escape the scrutiny of the court. The prosecution no doubt required adequate notice to investigate the allegation of alibi defence. The governing principle on alibi defence is that it must be disclosed early enough in the proceedings to permit it to be investigated by the police. That determines the weight the court will give to it.” The authority above shows that this court cannot give much weight to the Accused Person’s alibi defence, which was raised too late in the day. Be that as it may, the evidence adduced by the prosecution’s witnesses overwhelmingly displaced the Accused Person’s alibi defence. It is also noteworthy that the Accused Person’s witness (DW2) did not speak to the events of the date of the incident. He spoke about the events on the date of the Accused Person’s arrest. DW2 contradicted the Accused Person’s testimony regarding his arrest. DW2 was an untruthful witness. Kitale CMC CR. No. E1634 of 2023 Page 8 of 9 Benard Juma Mabuga Judgment

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It is against this backdrop that this court finds and holds that the Accused Person’s defence was an afterthought and a mere denial that did not cast any reasonable doubt on the prosecution’s case. Consequently, this court dismisses the Accused Person’s defence in its entirety. DETERMINATION The reasons above incline this court to convict the Accused Person 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 the offence of creating disturbance contrary to Section 95(1) (b) of the Penal Code. Judgment accordingly. Judgment read, signed, and delivered in open Court at Bungoma this 08th day of October 2025 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Person Mr. Minishi for ODPP C/A: Mr. Rioba Kitale CMC CR. No. E1634 of 2023 Page 9 of 9 Benard Juma Mabuga Judgment

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