Republic v Omwenga

she found accused at her kiosk who told her that she will be a corpse today. The complainant then went to sell her milk. 4. PW2’s evidence was that on 31/5/2026 at 4:00pm she was at her sister’s stall when the accused who is her in-law came while armed with a slasher. He found a person who was splitting rewood and told to put down the axe and go away. The accused came to where she was and told him that her sister had taken him to court and should leave that place. Her sister heard the noise and she came out of the house and questioned the accused person. The accused told PW1 to close the stall and chased away the customers. PW2 then went behind the house and sat at the rear door. She said when accused came at the stall he said that he told her that PW1 her sister had taken him to court and he will kill her. She said the accused did not utter threatening words to the complainant. Her sister then went and reported the matter to police. 5. PW3 investigated the case and charged the accused person. The prosecution then closed its case. The Accused Defence Case 6. DW1 JOSEPH OMWENGA the accused gave unsworn defence and denied the charges. His defence was that he has no dispute with his wife. The problem arose as a result of his wife’s sister who does not want them to stay together. The accused then closed his defence case. The Law 7. The accused in the two counts has been charged with the oence of threatening to kill contrary to section 223(1) of the Penal Code which states as follows – “ 223(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”. Determination The Burden of Proof 8. The prosecution bears the burden of proof, which proof is beyond any reasonable doubt. The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on article 50(2) (a) of the Constitution which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the state and does not shift to the accused. 9. The degree of proof in criminal cases was properly established in the classicus English case of Woolmington v DPP 1935 A C 462. Similarly, in Bakare v State 1985 2NWLR, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: “ Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the oence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/830/eng@2026-08-25 2

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10. Where there is doubt of any kind in a criminal matter, and evidence which would likely advance the case of the prosecution is not adduced, the eect of such an occurrence would go to the benet of an accused person. Whether the prosecution proved its case beyond any reasonable doubt. 11. The prosecution was required to establish the following ingredients of the charge: that the Accused 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. 12. The above ingredients were set by Kimaru J. (as he then was) in Martin Ng’ang’a Kamanu v Republic [2020] KEHC 5815 (KLR), where he 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 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.” 8. This means that the actions of the accused indicate that he wanted to kill the complainant. Justice Aburili in the case of Okutto v Republic (Criminal Appeal E016 of 2024) [2024] KEHC 10044 (KLR) (7 August 2024) (Judgment) rendered herself as follows:“ I am alive to the fact that in the oence of threatening to kill, it is immaterial whether the oence was premeditated or not. The question, from the above evidence and circumstances is whether the actions of the appellant indicated a person who wanted to kill. In my humble view, the Appellant's conduct on the material day does not demonstrate that he went to the complainant’s home with the intention of threatening to kill her but to prevent her from getting into and remaining in her house.” 8. In the case of Director of Public Prosecutions v Kariuki (Criminal Appeal E065 of 2022) [2024] KEHC 4160 (KLR) (24 April 2024) (Judgment) LM Njuguna, J held as follows:“ From the evidence, it is clear to me that indeed the respondent threatened to kill the complainant and the testimony of PW3 places him at the scene. However, it is important to deduce whether the respondent had the intent to commit the oence. This can be inferred from the alleged behavior of the respondent at the time of the threat.” 8. From the above two authorities it is clear that the uttering of the threats to kill must be accompanied by the actions an accused does for the oence of threatening to kill to be complete. In applying the above decisions in our instant case there is no evidence on record of the actions the accused did to be able to say that he had the intent to kill the complainant. According to the evidence of PW1 the accused uttered the words I will kill you. The evidence of PW2 was to the eect that the accused did not directly utter the words to the complainant. The two witnesses did not testify as to the actions accused did to show that he wanted to kill the complainant. There is no evidence that the accused advanced towards the complainant while brandishing the slasher. The evidence on record only shows that after the accused uttered the said words the complainant went to sell her milk. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/830/eng@2026-08-25 3

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9. It is my considered opinion that the prosecution has not been able to prove its case beyond any reasonable doubt in counts one. I nd the accused person not guilty as charged with the oence of threatening to kill contrary to section 223(1) of the Penal Code and acquit him under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 25TH DAY OF AUGUST, 2026 VIRTUALLY VIA MICROSOFT TEAMS J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel Mr. Kigera………… Court Assistant Accused …………….. Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/830/eng@2026-08-25 4

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