Republic v Komora Hiribae

and a rungu. Fearing for her safety, she fled and reported the matter to the police. Later that evening, a woman named Fatuma informed her that Komora had threatened to kill the witness with a knife over the unpaid money, claiming that even a jail sentence would not stop him. Regarding their financial history, the witness explained that they had previously invested in a business together, acquiring cows, goats, and a motorbike. She clarified that the accused had given her KShs. 10,000 for her personal use while they were married, but he only began demanding the money back after they had a disagreement. She noted that the accused did not want her children. 5. During cross-examination, the witness maintained that the marriage lasted approximately eight to nine months, refuting the suggestion that it only lasted four months. She acknowledged their joint investment in farming tomatoes and pawpaws. While she recognized a receipt for the motorbike, she noted there were no receipts for the goats and cows, stating she had trusted the accused as her husband. She challenged the accused's claims regarding his housing, asserting that he did not have a house and that KShs. 10,000 was insufficient to build one. She denied knowing a person named Wardea Salim and clarified that the trees in question were cut down by the accused's brother, Nuri, rather than by herself. 6. PW-2 was Fatuma Mkagwaye Lucy, a farmer from Hidampia. She stated that on August 30, 2024, at approximately 5:00 pm, she was cutting trees on her land across the river. She reported that Komora, a man from her village who is married to her sister, approached her while carrying a rungu and a slasher. According to her testimony, Komora threatened to kill her sister if she did not repay his money and showed her a knife he intended to use for the act. He further asserted that even if he were to be imprisoned, he would eventually be released, and he insisted that her sister must find another place to live. Fatuma noted that

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she knew the accused well due to their family connection. She explained that he spoke these words to her in Pokomo and instructed her to relay the message to her sister, Namkuu. She added that she personally had no issues with him. 7. During cross-examination by the accused, Fatuma clarified that her evidence concerned the knife, panga, and rungu. She mentioned that the distance from her home to the land was short and that no other people were present when they met. She stated that she did not have a phone at the time and was simply reporting the words that had been spoken. She confirmed that she was not present during any physical fighting and did not seek out Bwana Bihoa, as the case did not involve him. She maintained that she saw the accused with a slasher on that specific day. 8. PW-3 was Mwanahamisi Omar, a small-scale farmer from Hadampia. She testified that on August 29, 2024, at approximately 21:00 hours, she was at home watching television when she heard a knock at her door. Upon opening it, she encountered the accused, whom she identified in court. She stated that the accused, who was carrying a slasher and a rungu, inquired about the whereabouts of Mwanamkuu. When she informed him that she did not know, the accused instructed her to tell Mwanamkuu to return his money, warning that if she failed to do so, he would do something bad to her that would result in government action against him. Following this encounter, the accused left and she returned inside. 9. During cross-examination, the witness maintained that she was unaware of any prior issues between the parties. She confirmed her residence at a rented house in Hadampia belonging to Fatuma and clarified that they do not live in the same place. She reiterated that she saw the accused armed with a slasher and a rungu and that he directed her to convey a message regarding the repayment of money, accompanied by a threat of

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unspecified "bad" consequences. The witness further noted that she was alone at the time, did not possess a camera phone to take photographs of the accused, and had no knowledge of the duration of the accused's relationship or marriage with her sister. 10. PW-4 was No. 118612 PC Maurice Wachira Kirimi, currently attached to DCI Mathira West, Nyeri County, and formerly stationed at Hola Police Station DCI. He testified that on September 4, 2024, he was at the station when a woman named Namkuu Abdala reported that an individual identified as Komora Hiribae had threatened to kill her. Upon receiving this information, he booked the report and recorded her statement. He subsequently issued a notice compelling the suspect to attend the station, which the suspect complied with. The officer interrogated the suspect and conducted an investigation, during which he recovered a knife that the complainant identified as the weapon used to threaten her. 11. The prosecution requested the knife be produced as PEXH-1, and the court subsequently admitted it as PEXH-1. 12. The officer further noted that the complainant alleged the threat was made in the Pokomo language, stating that if she did not provide him with money, he would kill her. The officer identified the accused in court, noting he was wearing a white shirt and had a clean-shaven head. He clarified that he had no prior acquaintance with the accused before this case. 13. Under cross-examination by the accused, the officer stated that the complainant had identified the knife used in the threat and that her sisters had also come forward to confirm her statement. He reiterated that he had no personal interest in the matter beyond his official duties as an investigator. He explained that following the report, investigations were conducted and witnesses were interviewed. He confirmed that the accused was found in possession of both a knife and a stick, which witnesses

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alleged he had carried to the scene. The officer noted his understanding that the complainant was the accused's former wife and that they had separated due to such threats, adding that she reported the matter because she perceived this specific threat as serious. He stated he was unaware of how many times the accused had previously been in custody and was not conversant with the couple's marital issues beyond the scope of the current case. Finally, he affirmed that his only interaction with the accused was at the police station and denied ever asking for money to assist with the case. 14. That marked the close of the prosecution case. 15. The accused was placed on his defence after the court found that a prima facie case had been established against him. THE DEFENCE CASE 16. The accused gave unsworn testimony as DW1. He stated that he had been married to the complainant for four months. During their marriage, he claimed to have supported her and her son by purchasing a goat and providing school uniforms for the children. He alleged that the complainant began bringing family members to his property who caused damage, specifically naming Aldea Salim as the individual who killed 100 of his chickens. He further explained that he had provided the complainant with money for clearing trees, but she involved Aldea Salim against his wishes. 17. Mr. Hiribae recounted an incident where one of his brothers attacked him on the farm, leading to the loss of his phone and ID. He stated that following this altercation, the complainant moved out with her belongings. He noted that the complainant had reported him to the police three times and, despite attempts at home mediation, she continued to torment him. Consequently, he took the matter to the Kadhi, who dissolved the marriage. He maintained that since the day she left the farm, he had not approached her or her residence, nor had he

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issued any threats. He clarified that his only intention was for her to reimburse the expenses he incurred while constructing the house. He concluded by requesting that everyone who owed him money, including the complainant, return it. 18. DW-2 was Nassir Wario Odha. He testified that he recalled a day when he visited Mr. Hiribae's farm and found him quarreling with his wife. He stated that he did not understand the source of the dispute at the time and, viewing it as a common domestic issue between a husband and wife, he chose to leave. However, he reported finding them fighting again later that evening. He noted that he was accompanied by another person and they intervened to stop the altercation. He reiterated that while he did not know the cause of the conflict, he witnessed them fighting on that specific day during both the morning and the evening hours. 19. DW-3 was SAID OMAR, who stated that he was from the Handampia area and worked as a businessman. He explained that the accused sold lemons. He further stated that one day, he had intended to buy from the accused but did not reach the location because he had observed some commotion from a distance. Consequently, he left and went away. 20. That marked the close of the prosecution case. ISSUES FOR DETERMINATION AND ANALYSIS 21. Section 223(1) of the Penal Code provides as follows: 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 22. A reading of the above Section reveals three ingredients of the offence of threatening to kill. The ingredients are: a. Uttering the threatening words without a lawful excuse

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b. Uttering the words to the complainant either directly, indirectly, or in writing c. The words are meant to threaten to kill the complainant. 23. In Martin Ng’ang’a Kamanu vs. Republic [2020] KEHC 5815 (KLR), the court 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. 24. An offence of threatening to kill is an offence where the evidence given is usually the word of the complainant against that of the accused. I say this to mean that for the case to stand, the complainant’s evidence must be corroborated by an independent witness or if not, then a recording of the same must be availed. 25. Nevertheless, it remains the duty of the prosecution to prove the case against the accused person beyond any reasonable doubt. The alleged threatening words which the prosecution alluded to as having been issued by the accused were “kamba kona kakunipa pesa zangu na hakikisha namuaga,” interpreted to mean “if she does not give him money, he would kill her.” That is how the said words were captured in the charge sheet. 26. It is the duty of the prosecution to prove that the said words were spoken by the accused person either directly or indirectly to the complainant. The accused has no duty to defend himself so as to prove his innocence.

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27. Throughout the trial, and specifically during the hearing of the prosecution’s case, it is only the Investigating Officer, PW4, who mentioned the words used in the charge sheet. It would be expected that the witnesses who were called to corroborate the evidence of PW1 would refer to the same words or something close to them, but unfortunately, none of them mentioned such a thing. PW-1, to whom the said words were allegedly spoken, did not mention anything as to refer to the said words. Her testimony was that she was threatened, but no specific words were mentioned by her so as to show the threat. I therefore find that there is insufficient evidence to prove whether the said words were spoken by the accused. 28. The next issue would be the meaning of the words and whether they were indeed threatening. The charges read to the accused person were to the effect that the said words were spoken in the Pokomo language. 29. The said words were “kamba kona kakunipa pesa zangu na hakikisha namuaga”. The starting point would be as to the translation and meaning of the said words. There is no point in time during the hearing where it was stated that the words were translated by someone who understands the pokomo language and the person gave the translation to the authorities to make an arrest and charge the accused. 30. PW-4, who was the IO, did not mention if he understands the Pokomo language so as to make him understand the meaning of the words herein. Without such a person who understands and knows the meaning of the said words, it becomes difficult for this court to agree fully that indeed the said words were threatening to kill the complainant. 31. The evidence of PW2 and PW3, who were the witnesses, was to the effect that on various dates and occasions, the accused told each of them separately that if the complainant did not pay him his money, then he would harm her and even prison would not

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be a remedy enough. The said evidence is, however, at variance with the particulars of the offence as provided in the charge sheet to the effect that the threatening words were said directly to the accused. Thus, it is not clear whether the said words were said directly to the complainant or to the witnesses who came to inform her. Even if the said words were passed through third parties, then the exact words used were never mentioned by the said witnesses. It is to be remembered that the accused is charged with uttering certain particular words which he apparently said to the complainant on two separate occasions, the 29th and 30th day of August 2024. Therefore, it was incumbent upon the prosecution to lead evidence which is related to the particulars of the offence as provided in the charge sheet. 32. It is my considered opinion that the prosecution has not been able to establish a prima facie case to warrant the accused person to be placed on his defence. I find the accused person not guilty as charged with the offence of threatening to kill contrary to section 223(1) of the Penal Code and acquit him under section 210 of the Criminal Procedure Code. 33. The accused is set free unless otherwise lawfully held. 34. The prosecution has 14 days to appeal. 35. The cash bail to be returned to the depositor JUDGMENT READ, SIGNED, AND DELIVERED AT HOLA THIS 28TH DAY OF SEPTEMBER, 2026 W.O. KOMBWAYO, RM IN THE PRESENCE OF Mr.Kagema for the state Accused- Present CA-Kofa

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