Republic v Musa (Criminal Case E044 of 2026) [2026] KEMC 125 (KLR)

Defence case. 5. The accused in his defence denied the charges and stated that on the material date and time he was at Lamu police station the complainant went to take his fingerprints and did that twice, the first time with a lady and the second time he came alone. PARA 6. He said that he did not threaten the complainant and he cannot do so because he had not threatened the oficers who arrested him and that the reason for his predicaments with the complainant is the fact that both of them are chasing after one unnamed lady and he is using his power as a police oficer to frame him with these charges. B. Issue For Determination. 7. This court has identified the following issue for determination. a. Whether or not the accused threatened PC Iftin Abdi. C. Analysis And Determination. 8. 9. To sustain a charge of threatening to kill contrary to section 223(1) of the Penal Code the prosecution is required to establish the following ingredients of the charge: a. That the accused person without lawful excuse uttered words which amounted to a threat to kill the complainant or directly or indirectly causes any person to receive a threat whether in writing or not. b. The uttering of these words must be made in the context that the complainant perceives that he is under threat of losing his life. c. 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. In the case of Phenias Njeru Koru vs Republic [2015] eKLR the court in restating the ingredients necessary to prove the charge of threatening to kill stated as follows; “ The prosecution was therefore required to establish that the Appellant, without lawful excuse, uttered words which amounted to a threat to kill the complainant. It must also be established that the uttering of these words was made in the context that the complainants perceived that they were under threat of losing their lives. 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.” 10. It is the evidence of the complainant that on the material date and time the accused uttered those words complained ofi. In the evidence of the accused, there is no evidence to the contrary that the accused never said those words complained ofi and as such with the evidence of the complainant of the complainant I am convinced beyond doubt that the accused uttered those words. I am aware it is the evidence of a single witness that has no corroboration by I am convinced and I believe his testimony especially that no serious challenge was mounted during cross examination and that the accused in his own defence acknowledges being at the scene when the incident happened. 11. The accused does not explain or state the reason why he uttered those words and as such in my view I find that the accused had no lawful reason to utter the words complained ofi and if there was any lawful reason then nothing would have been easier that the accused relying on it in his defence. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/125/eng@2026-05-28 2

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12. As to whether the words complained ofi were perceived as threats, it is the evidence of the complainant that in the muslim religion, a white cloth is used to burry a muslim faithful and the same can also be said of a Christian faithful. I have made reference to the muslim faith on the sole reason that both the accused and the complainant subscribe to the muslim faith and they know this more than I do. Further to the reference to the white cloth there is reference to the use of the panga to finish him. All these words taken into the context for which they were uttered and in plain construction to give them meaning, meant that the accused would finish him with a panga and the white cloth will then be used to bury him. This is indeed a threat to a life and definitely a threat to the complainant and which is a death threat. 13. One and indeed the accused might urgue that how would he possibly threaten a police oficer who is armed and he alluded to this fact in his defence. A threat to life is a threat to life and it matters not that one is a police oficer or not. We have heard cases where police despite being armed have been attacked and injured and in unfortunate times killed so to me that is neither here nor there. 14. As to whether the context comes out of the evidence it is the finding of this court that indeed the context is easily discernible from the evidence of the complainant and as such that element is equally proved. 15. The accused in his defence never ofiered any explanation as to why those words were uttered and the context under which were made. I do find his defence to contain mere denials and a desperate attempt to avoid criminal liability. The issues raised as to them competing for an unnamed lady was never raised with the complainant when he testified. If at all that was true he ought to have raised the same with Pw 1. I proceed to dismiss his defence in toto. 16. With all that I have stated above I must therefore arrive at the conclusion that the ingredients as stated in the case of Phenias Njeru Koru(Supra) have been met in this case and the prosecution have indeed proved their case as against the accused person. D. Conclusion And Disposition. 17. The accused is thus guilty of the ofience of threatening to kill contrary to section 223(1) of the Penal Code and he is accordingly convicted in that count under section 215 of the CPC. 18. Orders accordingly. DATED AND DELIVERED AT LAMU LAW COURTS THIS 28TH DAY OF MAY 2026. F.M. MULAMA RESIDENT MAGISTRATE. In the presence of: Court Assistant:- Vivian Wambui. Idris Tomno for DPP. Imran Musa. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/125/eng@2026-05-28 3

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