Republic v Kilungu (Criminal Case E551 of 2023) [2026] KEMC 17 (KLR)
The bottom line
#A Makindu court acquitted a man of threatening to kill because vague words like 'I will cut you' don't clearly mean a threat to kill.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the accused person threatened to kill the complainant on the material day
- 2.Whether the prosecution has proven its case against the accused person to the required standard
Key legal issues
#Whether the words 'Nitakukata' constituted a threat to kill
The words are ambiguous and do not necessarily denote a threat to kill; the discrepancy between the charge particulars and the complainant's two testimonies left doubt
The charge particulars alleged 'Nitakukata' (I will cut you), yet the complainant's two testimonies differed - first that the accused would cut and kill him, then that he could finish him. The court held that for a s.223(1) charge the words must be clear and unambiguous, leaving no doubt of a threat to kill. Merely saying one will cut another does not necessarily mean killing; the court cannot choose which words were uttered, and ambiguity must favour the accused.
Ingredients of the offence of threatening to kill under section 223(1) of the Penal Code
The ingredients are: existence of a threat to life; that the threat was caused directly or indirectly to reach the victim; and that it was made without lawful excuse
Relying on Nancy Wanja Githaka v Republic, Phenias Njeru Koru v Republic and Baya Lwambi Hare v Republic, the court set out the ingredients: a threat to kill, made without lawful excuse, uttered verbally or in writing or by other means, and caused directly or indirectly to reach the person threatened. The prosecution must offer credible and irrefutable evidence on each element beyond reasonable doubt.
Whether the prosecution discharged the burden of proof beyond reasonable doubt
It did not; reasonable doubt was cast and must be resolved in favour of the accused
The court reaffirmed that the burden lies on the prosecution and the standard is proof beyond reasonable doubt, defined as proof leaving the court firmly convinced of guilt with no real possibility of innocence. The court could not state with conviction that the accused threatened to kill the complainant; the accused's defence was probable and not dislodged; the doubt was not unreasonable and the court cannot fill gaps in the prosecution case.
Legal principles established
#- Words alleged to constitute a threat to kill must be clear and unambiguous; ambiguity must be resolved in favour of the accused
- Any ambiguity in the alleged threat must be resolved in favour of the accused; the court may not infer meaning to save a defective prosecution case
- Where there is bad blood or a grudge between the parties, the prosecution evidence must be examined with great caution
Court orders
#- 1.The accused person is found NOT GUILTY of the offence of Threatening to kill contrary to section 223(1) of the Penal code
- 2.The accused person is hereby ACQUITTED in respect of the charge
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original criminal jurisdiction under the Penal Code, section 223(1)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing, I find that the prosecution has failed to prove its case against the accused person beyond reasonable doubt.
a) The accused person is found NOT GUILTY of the offence of Threatening to kill contrary to section 223(1) of the Penal code; b) The accused person is hereby ACQUITTED in respect of the charge.
Any ambiguity must be resolved in favour of the accused person.
Parties should embrace alternative dispute resolution which in most cases maintains the social fabric.
It is not the duty of the accused person or the court to fill in the gaps or tie up the loose ends in the prosecution case.
Issues in the judgment
#Date of delivery appears anomalous relative to a 2023 case number, and delivery is stated at Shanzu while the court file is Makindu
The complainant testified twice for reasons not explained on the record, creating a discrepancy in the words alleged
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kilungu (Criminal Case E551 of 2023) [2026] KEMC 17 (KLR)", Case Analysis (2026). Makindu SPMC Criminal Case No. E551 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/17/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.