Republic v Lepapa Oyie

3) The Court is therefore required to determine whether, from the evidence adduced, the prosecution has proved the charge against the accused beyond reasonable doubt. B. CHARGE AND PARTICULARS 4) The accused, Lepapa Oyie, faces one count of: 5) Count I: Threatening to kill contrary to section 223(1) of the Penal Code 6) Particulars of the offence: On the 7th day of December 2025, at Sadera Area in Narok Central Sub-County within Narok County, without lawful excuse, the accused Lepapa Oyie threatened to kill Mali Ole Oyie by uttering the words, “I will cut your neck by using a panga.” C. EVIDENCE i. Prosecution Case 7) PW1, Malit Ole Oyie, testified that he is a farmer residing at Olchoro. He recalled that on 7th December 2025 at about 2.00 p.m., he was on his farm in the company of Kasaine Ole Oyie when he met the accused person, who was alone. He testified that the accused told him that he would cut his neck that day. According to PW1, the accused was armed with a panga at the time. PW1 NAROK MCCR NO. E392 OF 2026 Page 2 of 13

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stated that the accused is his nephew and that he did not know why the accused was threatening him. 8) PW1 further testified that, upon being threatened, he ran away together with Kasaine. He stated that the accused pursued them before they managed to get away. He subsequently reported the incident to the Chief and at Olchorro Police Station. 9) On cross-examination, PW1 confirmed that he was together with Kasaine Ole Oyie when the incident occurred. He stated that the accused was arrested at the Chief's office after he had initially escaped. According to PW1, the Chief called the accused by telephone and, when the accused resurfaced, he was arrested. PW1 further testified that he resides on separate land from the accused and that he had given the accused two acres to cultivate. He stated that the entire parcel measured four acres and had belonged to his father. 10) PW2, Kasaine Ole Oyie, testified that he is from Kairegi. He recalled that on 7th December 2025 at about 2.00 p.m., he was on his farm when, while on his way, he saw the accused chasing the complainant, Mali Ole Oyie, while armed with a panga. PW2 stated that he intervened and stopped the two. He testified that the accused was saying that the complainant had entered his land. Thereafter, the parties went their separate ways. NAROK MCCR NO. E392 OF 2026 Page 3 of 13

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11) On cross-examination, PW2 stated that he was not present when the accused was arrested. ii. Defence Case 12) The accused, Lepapa Oyie, gave sworn evidence in his defence. He testified that he is a resident of Olchoro Location and that the complainant is his uncle. He recalled that on 28th March 2026 he was arrested and escorted to Olchoro Police Station. He stated that he was informed that the complainant had alleged that he had threatened to kill him. The accused further stated that there was a dispute concerning a half-acre parcel of land which he had leased and for which he had been paid Kshs.5,000. 13) The accused denied threatening the complainant or chasing him with a panga. He maintained that the allegation that he threatened to kill the complainant was false and that he had been at home at the material time. 14) On cross-examination, the accused confirmed that the complainant, Malit Ole Oyie, and PW2, Kasaine Ole Oyie, are his uncles. He denied having any previous disagreement with them and maintained that they had lied to the Court by alleging that he had threatened the complainant. He reiterated that he had been at home at the time of the alleged incident. D. ISSUES FOR DETERMINATION NAROK MCCR NO. E392 OF 2026 Page 4 of 13

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15) Having considered the charge, the evidence adduced by the prosecution, the defence by the accused and the applicable law, the following issues arise for determination: i. Whether the accused uttered or otherwise caused the complainant to receive a threat to kill; ii. Whether the threat was made without lawful excuse; and iii. Whether the prosecution has proved the charge against the accused beyond reasonable doubt. E. ANALYSIS AND DETERMINATION 16) The accused person is charged under Section 223(1) of the Penal Code, which provides: “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.” 17) The ingredients of the offence therefore include proof that the accused, without lawful excuse, uttered or directly or indirectly caused a person to receive a threat to kill. The threat may be verbal or written and may be communicated directly or indirectly. In Nancy Wanja Githaka v Republic NAROK MCCR NO. E392 OF 2026 Page 5 of 13

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[2015] KEHC 4322 (KLR), the High Court identified the essential requirement as proof that the accused directly or indirectly caused the complainant to receive a threat to kill. 18) More recently, in Republic v Mwangangi (Criminal Case E468 of 2021) [2025] KEMC 315 (KLR), the Court identified the ingredients as the existence of a threat to life, receipt of that threat directly or indirectly, and that the threat must have been made without lawful excuse. The Court further recognized that the threat may be verbal or written. 19) The context in which the words were uttered is also material. In Martin Ng’ang’a Kamanu v Republic [2020] eKLR, as cited with approval in Wakarindi v Republic (Criminal Appeal E072 of 2024) [2026] KEHC 1998 (KLR), the prosecution is required to establish that the words amounted to a threat to kill and that they were uttered in circumstances in which the complainant perceived that he was under threat of losing his life. The context must emerge from the evidence as a whole. 20) In the present case, PW1 gave direct evidence that on 7th December 2025 at about 2.00 p.m., he met the accused while he was in the company of PW2. His evidence was that the accused told him that he would cut his neck and that the NAROK MCCR NO. E392 OF 2026 Page 6 of 13

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accused was armed with a panga. PW1 further stated that he ran away and that the accused pursued them. 21) The words attributed to the accused, namely that he would “cut your neck”, when considered together with the fact that he was allegedly armed with a panga, are plainly capable of conveying a threat to the life of the complainant. This was not merely an insult or an expression of anger devoid of reference to death or serious harm. The words specifically referred to an act capable of causing death and were allegedly accompanied by possession of a panga. 22) The evidence of PW1 is materially corroborated by PW2 in respect of the surrounding circumstances. PW2 testified that he saw the accused chasing PW1 while armed with a panga. He intervened and stopped the two. PW2 further heard the accused saying that the complainant had entered his land. Although PW2 did not testify to hearing the precise words constituting the alleged threat to kill, his evidence independently places the accused and the complainant together at the material time and confirms the presence of the panga and the ensuing pursuit. 23) The absence of evidence from PW2 as to the precise threatening words does not, in itself, render PW1's evidence incapable of sustaining a conviction. Section 143 of the Evidence Act does not require any particular number of NAROK MCCR NO. E392 OF 2026 Page 7 of 13

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witnesses for proof of a fact unless the law expressly provides otherwise. The question is whether the evidence actually adduced is credible and sufficient to prove the charge beyond reasonable doubt. The High Court has reiterated that the prosecution is not obliged to call a superfluity of witnesses where the evidence adduced is sufficient to establish the charge. Abdiaziz Yussuf Abi v Republic [2020] KEHC 3004 (KLR). 24) I have considered the fact that PW1 and PW2 are relatives of the accused. The accused confirmed that both witnesses are his uncles. Their relationship to the accused does not, without more, render their evidence unreliable. Indeed, PW1 openly acknowledged the relationship and also disclosed the existence of a land-related background between them. The Court must therefore assess their evidence on its consistency, credibility and whether it is supported by the surrounding circumstances. 25) The evidence discloses that there was a land-related disagreement. PW1 stated that he had given the accused two acres to cultivate, while the accused referred to a half-acre which he said he had leased. PW2 testified that the accused was saying that PW1 had entered his land. This evidence provides the context within which the confrontation occurred. However, the existence of a land dispute does not, by itself, establish either guilt or innocence in respect of NAROK MCCR NO. E392 OF 2026 Page 8 of 13

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the charge. What the Court must determine is whether, during that confrontation, the accused made the alleged threat to kill. 26) I have also considered the accused's defence. The accused denied threatening PW1 and denied chasing him with a panga. He maintained that he was at home at the material time and that the prosecution witnesses had falsely implicated him. 27) The defence is a direct denial and therefore places the Court under a duty to consider whether the prosecution evidence has displaced that denial. The legal burden remains throughout upon the prosecution. Section 107(1) of the Evidence Act places the burden of proving the existence of facts asserted upon the party who seeks the Court to give judgment based on those facts. The constitutional presumption of innocence under Article 50(2)(a) of the Constitution also remains applicable throughout the trial. 28) The standard applicable is proof beyond reasonable doubt. As stated in Miller v Minister of Pensions [1947] 2 All ER 372, and repeatedly applied by the Kenyan courts, proof beyond reasonable doubt does not require proof beyond the shadow of doubt, but the evidence must attain a high degree of probability. The prosecution must establish the case to that standard and not merely leave the Court with suspicion. NAROK MCCR NO. E392 OF 2026 Page 9 of 13

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29) In the present case, PW1's evidence concerning the actual threat was direct. He identified the accused as the person who made the threat and described the words used. His evidence is supported by the immediate circumstances testified to by PW2, namely that the accused was chasing PW1 while armed with a panga. The evidence of PW2 also places the accused and PW1 together at approximately the same time and location and confirms that there was a confrontation arising from a land-related complaint. 30) I have considered the discrepancy between the date of the alleged arrest and the evidence concerning the incident. PW1 stated that the accused was arrested at the Chief's office after the Chief called him, while the accused testified that he was arrested on 28 th March 2026. The fact of arrest, however, is not an ingredient of the offence under Section 223(1) of the Penal Code. The discrepancy concerning the arrest therefore does not create a reasonable doubt regarding whether the threat was made on 7th December 2025. 31) I have also considered that the panga was not produced as an exhibit. The offence charged is threatening to kill and not assault or possession of a panga. Consequently, production of the panga was not indispensable to proof of the charge. What is material is whether the prosecution evidence sufficiently established the alleged threat. The evidence concerning the panga is NAROK MCCR NO. E392 OF 2026 13 Page 10 of

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nevertheless relevant as part of the circumstances in which the words were allegedly uttered. 32) On the issue of lawful excuse, no evidence has been presented to establish any lawful justification for threatening the complainant with death. The evidence regarding the land dispute may explain why the confrontation arose, but it does not constitute a lawful excuse for a threat to kill. The prosecution has therefore proved this ingredient as well. 33) I have carefully considered the accused's denial against the totality of the prosecution evidence. I find that the defence does not create a reasonable doubt when considered alongside the direct evidence of PW1 and the corroborative evidence of PW2 concerning the confrontation and the panga. 34) I therefore find that the prosecution has established beyond reasonable doubt that the accused Lepapa Oyie, on 7 th December 2025 at Sadera Area in Narok Central Sub-County within Narok County, without lawful excuse, uttered words amounting to a threat to kill the complainant, Mali Ole Oyie, by threatening to cut his neck while armed with a panga. NAROK MCCR NO. E392 OF 2026 13 Page 11 of

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35) Accordingly, I find that all the essential ingredients of the offence of Threatening to Kill contrary to Section 223(1) of the Penal Code have been proved beyond reasonable doubt. F. FINAL DETERMINATION AND DISPOSITION 36) The accused person, Lepapa Oyie, is hereby found GUILTY of the offence of Threatening to Kill contrary to Section 223(1) of the Penal Code. 37) He is accordingly CONVICTED on Count I under Section 215 of the Criminal Procedure Code. 38) Orders accordingly. Dated, Signed, and Delivered at Narok This 21st Day of September, 2026. HON. H.M. NYABERI CHIEF MAGISTRATE In the Presence of: Court Assistant: Mr. Danson Solian Prosecutor: Mrs. Saoli Thabita Accused: Present PROSECUTOR: He may be treated as a first offender. MITIGATION: I seek forgiveness. I have been in custody since I was arrested until today. I urge the court to consider. NAROK MCCR NO. E392 OF 2026 13 Page 12 of

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COURT: Pre-sentence report be availed. Mention – 07/10/2026. Remanded in custody. HON. H.M. NYABERI CHIEF MAGISTRATE NAROK MCCR NO. E392 OF 2026 13 Page 13 of

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