(Being an appeal from the Judgment of Hon. D.N. Sure (P.M.) at Kangundo Court Case No. E1262 of 2021 delivered on 30th October 2024)
A. Introduction
1. The appellant, being aggrieved by the decision of the trial court that convicted him for the offences of wrongful distribution of intimate images contrary to section 37 of the Computer Misuse and Cyber Crimes Act No. 5 of 2015 and threatening to kill contrary to Section 223 of the Penal Code, has lodged this appeal. He seeks that his conviction be quashed and the 6 years imprisonment sentence for the offence of threatening to kill and 2 years imprisonment for the offence of wrongful distribution of intimate images be set aside.
2. The appeal is premised on the following grounds: that the Learned Trial Magistrate erred in matters of law and fact by convicting him on evidence that did not meet the minimum threshold to uphold a conviction; not exercising discretion and sentencing him by virtue of the provisions of Section 37 of the Computer Misuse and Cybercrime Act; by failing to order that the sentences to run concurrently and by not considering his sworn defence.
B. Background
3. Before the trial court, the appellant was charged with the offence of wrongful distribution of intimate images contrary to section 37 of the Computer Misuse and Cyber Crimes Act No. 5 of 2015 in Count 1. The particulars of the offence were that on diverse dates, between March 2021 and May 2021, at Kithuani Sub location in Matungulu Sub-county within Machakos County, wrongfully transferred intimate images of Agnes Mumbua Peter, through WhatsApp account number 0717***313 to Serah Nthambi Mutua whose WhatsApp account number is 0710***843. In Count 2, he was charged with the offence of threatening to kill contrary to Section 223 of the Penal Code. The particulars of the offence were that on the diverse dates, between March 2021 and May 2021, at Kithuani Sub Location in Matungulu Sub County within Machakos County, jointly with others not before court, without lawful excuse directly caused Agnes Mumbua Peter to receive a letter threatening to kill her.
4. The appellant pleaded not guilty to all the charges and to prove its case, the prosecution called 4 witnesses.
C. Prosecution case
5. PW1, Agnes Mumbua Peter, an adult female residing at Nguluni-Kithuani Village and a businesswoman, testified that she became involved in a romantic relationship with the accused in 2017. The relationship continued until 2019 when they began going on outings. She stated that during one such outing to Athi River in 2019, at a lodging whose name she could not recall, the accused requested to take photographs of her private parts. PW1 testified that she questioned him about his intentions and whether he would delete the photos, to which he assured her that the photographs would only be for his personal viewing. Despite her insistence, she consented to the photographs being taken.
6. PW1 further stated that their relationship continued until 2021, after which it was deferred. She alleged that following the deferment, the accused began distributing the intimate photographs to various persons via WhatsApp. She reported the matter to the assistant chief, who confirmed that he had also received such photographs accompanied by messages referencing her. PW1 then proceeded to the DCIO in Machakos, who referred her to the criminal department after which KBC Police Station took over the investigation. PW1 identified the photographs recovered by the police as those taken by the accused. She also confirmed that she recorded her statement at the police station and identified the accused on the dock as the person responsible for distributing the intimate photographs.
7. Upon cross examination, PW1 admitted that she had been married for approximately twenty years and that her relationship with the accused was an extramarital affair. She could not recall the name of the lodge where the photographs were taken and had no documentary evidence proving that the accused and herself were at a lodge. She reiterated that the accused had sought her permission before taking the photographs, which he took using his phone. She could not see the phone at the time but confirmed that it was recovered by cybercrime and established as the device used to take the photographs. PW1 confirmed that the photographs were sent to multiple persons who are not witnesses in the case. She testified that the photographs were recovered by the Cybercrime Unit and that she had seen them on the phone of the assistant chief, Madam Serah Nthambi, who had received the photographs from the accused. She identified the accused’s telephone numbers as 0717***313 and 0737***679, information verified by the Cybercrime Unit. She clarified that while the messages accompanying the photographs were received by the assistant chief, they were not part of the evidence. PW1 stated that the photographs were taken in 2019 and distribution began in 2021.
8. Upon re-examination, PW1 explained that she had not been concerned with the name of the lodge or receipts at the time of the events. She confirmed that the phone used to take the photographs belonged to the accused and believed that he still had it. She added that the assistant chief would testify as she had received the photographs and observed them. PW1 also confirmed that she had provided the telephone numbers used by the accused which were subsequently investigated.
9. PW2, Inspector Daniel Kieni, an adult male and officer number 241446, stationed at the Cybercrime and Digital Forensic Lab, testified that he holds a BSc in Information Technology from Jomo Kenyatta University of Agriculture and Technology (JKUAT). He further stated that he has undergone specialized training with the German police on crime scene management in capital offenses and holds a certificate from Cellebrite on the use of forensic tools. PW2 testified that on 25th May 2021, the lab received two exhibits from the DCI Matungulu through Cpl Jackson Haggai for forensic analysis, being:
i. Exhibit marked A – a Techno phone 331Son, IMEI 359913081823479, paired with SIM card S/N 89254021164228935587.
ii. Exhibit marked B – a Redmi Phone 5A, IMEIs 867158036934022 and 867158036934030, accompanied by a 2GB SD card without a SIM card.
10. The request was to recover any pornographic or nude images shared via WhatsApp. The case was allocated CCU number 533/2021, and PW2 was assigned to conduct the forensic examination. He reported that Exhibit A could not be analyzed using forensic tools. Analysis of its SIM card revealed nineteen SMS messages, none related to nude or pornographic images. In contrast, Exhibit B contained eleven nude images that had been shared via WhatsApp to four contacts, as follows:
i. Mrs. Wahita (0725***959) on 7th May 2021
ii. Emma (0719***003) on 6th–7th May 2021
iii. Mary Mbithi (0700***964) on 25th April 2021
iv. Kat (0714***540) on 25th April 2021
11. PW2 stated that he compiled a report of his findings (PExb2), which was verified by Chirchir. He further prepared a certificate under Section 65(8) read together with Section 106 of the Evidence Act (Pexb3). The images recovered were stored on a DVD as part of the evidence.
12. Under cross-examination, PW2 confirmed that his report (PExb2) related solely to Exhibit B, the Redmi phone. He stated that he could not determine the owner of Exhibit B, nor could he provide registration details for Exhibit A. He acknowledged recovering eleven nude images from Exhibit B shared via WhatsApp, with the recipient contacts listed as above. He did not identify other recipients such as Peter Nyamai or Serah Nthambi, and he did not provide forensic reports for the individuals who received the images.
13. PW3, Serah Mutua, the Senior Chief of Nguluni Location, testified that in 2021 she was serving as the Senior Assistant Chief of Kithuani Sub-location. She stated that on 23rd April 2021, at approximately 10:00 p.m., she received a message containing nude photographs in which the face of the woman depicted was visible. The message accompanying the photographs read: “Agnes Peter should be chased from Mukuku shopping center because she has a relationship with bodaboda riders and other men and she should be chased from leading women's group.” The number from which the message originated was unknown to her, though she could recall that it began with 0717. She attempted to call the number but could not ascertain the sender’s identity through Truecaller. PW3 further testified that on 26th April 2021, she received another message containing the same nude photographs accompanied by a message in English stating: “The government must take action.” She recounted that on 10th May 2021, PW1, Agnes Peter, accompanied by her husband, visited her office. They brought leaflets containing threatening messages and informed her about the circulation of the nude photographs in the village. PW3 inspected the leaflets (marked Mf5) and confirmed that they contained threatening messages. She directed the complainants to report the matter to Nguluni Police Station. PW3 stated that on 18th May 2021, she was summoned by the DCI, where she recorded a statement regarding the matter. She affirmed that she knew the accused well but did not know the identity of the person who sent the messages.
14. Under cross-examination, PW3 acknowledged that she did not have evidence to show that the accused was the sender of the messages. She confirmed that the messages were received from the telephone number 0717***313 but stated that she did not know the registered owner of the number and could not confirm whether the accused was the sender.
15. PW4, PC Ivey Onyango, an officer at DCI Matungulu, testified that on 18th May 2021, she was directed to investigate the matter at hand. She stated that the complainant, accompanied by the area assistant chief, reported that her nude photographs had been circulated on social media by a known person. PW4 booked the report and recorded that the complainant implicated a person named Kalumu, with whom she had been in a consensual relationship for approximately three years. According to the complainant, when she attempted to end the relationship, the accused began distributing the photographs, which had originally been taken with her consent. PW4 testified that she and her team proceeded to Koma, where they arrested the accused and took him to KBC Police Station. The accused’s phones, a Techno and a Redmi 5A were seized for forensic analysis. The accused was released on police bond of Kshs 10,000/=. PW4 recorded an exhibit memo dated 21st May 2021 and forwarded the exhibits to the Cybercrime (PExb6).
16. She further testified that on 15th June 2021, she received a report indicating that the nude photographs were stored on the Redmi phone, which had been used to distribute the images on social media. PW4 prepared an additional memo dated 2nd July 2021 to identify the recipients of the messages, marked PExb7. She received a report from the Cybercrime Unit listing individuals who had received the nude photographs; however, most recipients declined to provide statements, except for the assistant chief. PW4 charged the accused with the offenses, including the distribution of intimate images and threatening the complainant with messages circulated via flyers instructing her to vacate Mukukuni Market, Flyers marked PExb5. The complainant’s photographs were marked PExb1a-h. PW4 identified the accused on the dock as the person responsible and stated that she did not know him prior to this case.
17. Upon cross-examination, PW4 confirmed that she arrested the accused in relation to the offenses before the court but did not recover the flyers from him personally. She stated that the accused was the only person with a known motive to threaten the complainant, though she did not witness the threats firsthand. She explained that the Cybercrime Unit’s report showed the recipients of the messages, and that the phones had been recovered from the accused. She also acknowledged that the accused had subsequently made a court application to have the phones returned which was granted.
18. With these 4 witnesses, the prosecution rested its case. Upon the closure of the prosecution case, the court on 3rd April 2024 found that the prosecution had established a prima facie case and the appellant was placed on his defence. He gave sworn statement and called one witness.
D. Defence case
19. DW1, Christopher Mbithi Kioko, a resident of Kithuani and an animal farmer, testified that on 24th May 2021, police officers came to his home and arrested him without explaining the reasons for the arrest. He stated that while being taken to the police station, he saw a woman whom he was told was Agnes Mumbua, but he denied knowing her or having ever met her. DW1 testified that the phone produced in court as belonging to him was not his. He presented his own phone, described as a Bontel “Mulika Mwizi” button phone with a SIM card to the police at the time. He stated that police later brought another phone and claimed it was his. DW1 denied ownership of that phone and after testifying, returned it to KBC Police Station. He said that at the time of his arrest, he had been farming and grazing his cattle, with his wife as a witness.
20. DW1 further stated that he did not know any of the contacts on the phone produced by the police and there was no evidence that the phone was registered in his name. He provided his own telephone number as 0707***426 with Safaricom, which was the number he was using at the time of arrest. He maintained that he had been falsely implicated in the case, had no relationship with the complainant and that the allegations had affected his reputation, family and work. He prayed to be released so that he could continue with his life.
21. On cross examination, DW1 stated that the he had shown the police his phone and there was no evidence to show that the phone is his. He alleged to have been framed and defamed
22. In re-examination, DW1 reiterated that the complainant and himself were not lovers. He stated that he had purchased and used his phone for a long time and could not recall the exact date of purchase nor did he have a receipt. He maintained that the phone produced by the police in court was not his and that no evidence had been produced to show that it belonged to him. He emphasized that he had been framed with the phone and pointed out that in the photographs, a hand holding the phone was visible, though questions regarding its description were withdrawn upon objection. DW1 stated that the case had defamed him and prayed to be acquitted so that he could continue with his life and his involvement in church.
23. DW2, Francisca Mwothi Mbithi, testified that the accused, known locally as Kalumu, was being falsely implicated in the matter. She stated that she had lived with the accused for ten years without any disputes and that he had never wronged her. She confirmed that accused and herself were usually together and engaged in farming activities as a family. DW2 further testified that she was present with the accused when the police came to arrest him. She denied ever seeing the accused go anywhere without her knowledge and maintained that he had not engaged in any improper relationship with the complainant.
24. After the close of the defence case, the trial court rendered its judgment convicting the appellant on the two counts. On sentencing, the trial court sentenced him to serve 2 years imprisonment for Count 1 and 6years imprisonment for Count 2.
E. The Appeal
25. In the appeal, the appellant seeks that his conviction be quashed and the sentence set aside. The appellant seeks to rely on his submissions dated 21st March 2025. The Respondent did not file submissions as the same are not on the court record. The Appellant’s submissions are as below: -
26. The Appellant submitted that he was convicted of the offences of threatening to kill contrary to Section 223(1) of the Penal Code and wrongful distribution of intimate images contrary to Section 37 of the Computer Misuse and Cybercrimes Act No. 15 of 2018, and was sentenced to serve consecutive terms of six (6) years and two (2) years respectively, with an alternative fine of Kshs 200,000/= in respect of the latter offence. Being dissatisfied with both conviction and sentence, he preferred the present appeal.
27. He submitted that the trial was fundamentally defective for want of disclosure of crucial evidence, particularly the alleged text messages said to form the basis of the charges, contrary to Article 50(2)(j) and (k) of the Constitution. He pointed to the record where the prosecution conceded that it was unable to produce the said messages arguing that the case “died at birth.”
28. On the offence of threatening to kill under Section 223(1) of the Penal Code, the appellant contended that the prosecution failed to prove that he uttered or caused to be uttered any threat to kill the complainant. It was argued that no threatening messages or letters allegedly authored by the appellant were produced in evidence and that the purported leaflets were not recovered from him. Counsel maintained that the essential ingredients of the offence were not established.
29. With respect to the charge under Section 37 of the Computer Misuse and Cybercrimes Act, the appellant submitted that the prosecution failed to prove that he disseminated the intimate images. It was argued that the cybercrime expert (PW2) could not establish ownership of the Redmi phone from which the images were allegedly shared, nor link the phone or the relevant telephone numbers to the appellant. Further, none of the alleged recipients of the images, save for the assistant chief, testified. The assistant chief (PW3) herself stated that she did not know who had sent the messages and had no evidence linking the appellant to the same. While relying on the case of Sawe versus Republic [2003] eKLR, he emphasized that suspicion, however strong, cannot found a conviction. It was further argued that the prosecution failed to call crucial witnesses, thereby inviting an adverse inference under the principles set out in Bukenya v Uganda (1972) EA 548 and as reiterated in Paul Kanja Gitari v Republic [2016] eKLR.
30. The appellant also challenged the credibility of PW1, contending that her evidence was inconsistent and amounted to an afterthought particularly since she did not initially indicate that the appellant authored the alleged threatening letters. In this regard, reliance was placed on Akumu v Republic [1954] 21 EACA, on the value of first reports and Ndungu Kimanyi v Republic [1979] eKLR on the reliability of witnesses in criminal trials.
31. On the issue of burden and standard of proof, counsel cited the celebrated decision in Woolmington v DPP [1935] A.C 462 emphasizing that the prosecution bears the legal burden of proving guilt beyond reasonable doubt, as well as Sekitoliko v Uganda [1967] EA 53 to the effect that a conviction must rest on the strength of the prosecution case and not the weakness of the defence.
32. Regarding sentence, the appellant submitted that the trial court erred by failing to exercise discretion under Section 37 of the Computer Misuse and Cybercrimes Act and by imposing consecutive sentences. It was argued that the offences arose from the same transaction and should have attracted concurrent sentences in line with the principles enunciated in Owiti v Republic [1984] KLR 73 and Ng'ang'a v Republic [1981] KLR 530. He further invoked Sections 362–364 of the Criminal Procedure Code and urged the court to interfere with both conviction and sentence.
33. In conclusion, the appellant maintained that the prosecution failed to establish a nexus between him and the alleged offences, that the conviction was based on conjecture and insufficient evidence and urged this court to quash the conviction and set aside the sentences imposed.
Analysis and determination
34. This being a first appeal, this court has a duty to reconsider and re-evaluate the evidence presented before the trial court and arrive at its own independent conclusion. However, in doing so, the court must remain mindful that it did not see or hear the witnesses testify. See the cases of Pandya v R [1957] EA 336; Ruwalla v R [1957] EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v Republic [2010] eKLR.
35. Having considered the record of appeal as well as the submissions by parties, I discern the following issues for determination:
a. Whether the prosecution proved beyond reasonable doubt the offences of wrongful distribution of intimate images and threatening to kill.
b. Whether the sentence imposed was lawful and appropriate, including whether the sentences ought to have run concurrently.
Whether the prosecution proved beyond reasonable doubt the offences of wrongful distribution of intimate images and threatening to kill.
36. The appellant was convicted of two offences: wrongful distribution of intimate images contrary to Section 37 of the Computer Misuse and Cybercrimes Act and threatening to kill contrary to Section 223 of the Penal Code.
37. Regarding the offence of wrongful distribution of intimate images, Section 37 of the Computer Misuse and Cybercrimes Act No. 15 of 2018 provides as follows:
“Wrongful distribution of obscene or intimate images
A person who transfers, publishes, or disseminates, including making a digital depiction available for distribution or downloading through a telecommunications network or through any other means of transferring data to a computer, the intimate or obscene image of another person commits an offence and is liable, on conviction to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or to both.”
38. For a conviction under Section 37 of the Computer Misuse and Cybercrimes Act, the prosecution was required to prove that there was an intimate or obscene image of another person; the image was transferred, published or disseminated through a telecommunications network or other digital means; and the accused was the person responsible for such dissemination.
39. On proof that the images were intimate and belonged to the complainant, PW1 testified that the appellant took nude photographs of her during the existence of a relationship in 2019. She identified the images recovered from the Redmi 5A phone as hers. The cybercrime officer (PW2) stated that he extracted eleven nude photographs from the said device and produced a forensic report together with the requisite certificate under Sections 65(8) and 106 of the Evidence Act. There was therefore no dispute as to the nature of the images. They were intimate photographs within the meaning contemplated under Section 37 of the Computer Misuse and Cyber Crime Act.
40. On proof of distribution of the images through a telecommunications network or other digital means, PW2’s forensic examination established that the Redmi 5A phone had been used to transmit the images via WhatsApp to four identified contacts. The extraction report demonstrated the transmission trail. The offence does not require proof of wide public circulation; transmission to even one recipient suffices. The digital forensic evidence established dissemination through a telecommunications platform, thereby satisfying the second ingredient.
41. The central issue in this appeal is whether the appellant was linked to the dissemination of the intimate images. PW4 testified that upon arrest, the appellant was found in possession of two mobile phones: a Tecno phone and a Redmi 5A. The Redmi phone is the device from which the intimate images were extracted and shown to have been transmitted. Possession is legally significant, as it entails both knowledge and control. Once a device is recovered from an accused person and incriminating digital evidence is found therein, the evidentiary burden shifts to the accused to provide a plausible explanation consistent with innocence. The appellant denied ownership of the Redmi phone, claiming he only used a basic Bontel phone incapable of taking photographs. However, the Redmi phone was physically recovered from him. No evidence was tendered to show that the device belonged to another person, nor was the identity of such a person established. The defence therefore failed to discharge the evidentiary burden of demonstrating that the phone was shared or accessible to third parties.Furthermore, during the hearing, and as noted by the trial court, the appellant applied for the release and return of his phones. The application was not opposed, and the phones were duly returned to him. It is therefore contradictory and implausible for the appellant to now claim that the phones did not belong to him.
42. The trial court was entitled to infer exclusive control. The intimate images were found in a phone recovered from the appellant, and the complainant testified to a prior intimate relationship that had soured. These facts form a complete and unbroken chain pointing irresistibly to the appellant as the person who intentionally disseminated the images. The absence of subscriber registration details does not negate possession or actual custody. Ownership is not the gravamen; what matters is control and use.
43. On the intentional and unlawful distribution, the complainant testified that although the photographs were taken with her consent during the relationship, she did not consent to their dissemination. Once the relationship ended, the images were shared. That temporal connection supports malicious intent. The Act criminalizes distribution without consent, even where initial taking of the images was consensual. The trial court correctly appreciated this distinction.
44. Upon re-evaluation of the entire evidence, this court is satisfied that the prosecution therefore proved the offence of wrongful distribution of intimate images beyond reasonable doubt. The trial court cannot be faulted on conviction for that count.
45. Regarding the offence of threatening to kill being proved beyond reasonable doubt, the prosecution was required to prove that a threat to kill was uttered or caused to be received by the complainant; the threat was made without lawful excuse; and the threat was attributable to the appellant. On proof that a threat was made, PW1 testified that after the relationship between herself and the appellant deteriorated, threatening messages and leaflets were circulated. The contents conveyed threats to her life. PW3 corroborated this account by confirming that she received the threatening material and advised PW1 to report the matter to the police. The threatening leaflets were produced as exhibits. The language contained in the leaflets was unequivocal and conveyed a real threat of death. The test is not whether the threat was ultimately executed, but whether words or conduct were used that conveyed an intention to cause death. The offence is complete once the threat is uttered or caused to be received.
46. On attribution of the threat to the Appellant, the threatening communications did not arise in isolation. They occurred contemporaneously with the dissemination of the complainant’s intimate images, an act this court has already found to have been proved beyond reasonable doubt and attributable to the appellant. This timing is significant as the relationship between PW1 and the appellant had ended; the intimate images were disseminated from a phone recovered from the appellant and around the same period, threatening leaflets targeting the complainant were circulated. The chain of events demonstrates a common design and continuity of conduct. The dissemination of intimate images and the threats formed part of the same retaliatory pattern. Although PW3 stated she did not personally witness the appellant issue the threats, direct eyewitness evidence is not the only mode of proof.
47. A conviction may properly rest on circumstantial evidence where the chain is complete and excludes any other reasonable hypothesis. No evidence suggested involvement of a third party. The defence did not suggest any other person with motive or opportunity to threaten the complainant. The appellant merely issued a general denial. The surrounding circumstances form a coherent narrative pointing to the appellant as the author or orchestrator of the threats. The conviction on the count of threatening to kill was therefore sound in law and fact and is hereby upheld.
Whether the sentence imposed was lawful and appropriate, including whether the sentences ought to have run concurrently
48. Sentencing is a matter of judicial discretion. An appellate court will not interfere with sentence unless it is shown that the trial court acted on a wrong principle, overlooked material factors, took into account irrelevant considerations, or that the sentence is manifestly excessive or illegal.
49. The appellant was sentenced to six (6) years’ imprisonment for the offence of threatening to kill contrary to Section 223 of the Penal Code; and Two (2) years’ imprisonment for wrongful distribution of intimate images contrary to Section 37 of the Computer Misuse and Cybercrimes Act. Under Section 223 of the Penal Code, the offence of threatening to kill attracts a maximum sentence of ten (10) years’ imprisonment. The sentence of six (6) years was therefore well within the statutory limit. Similarly, Section 37 of the Computer Misuse and Cybercrimes Act prescribe a maximum penalty of two (2) years’ imprisonment or a fine not exceeding Kshs. 200,000/= or both. The sentence of two (2) years’ imprisonment was within the statutory ceiling.
50. There is therefore no illegality in the sentences imposed. The trial court acted within the bounds of the law. Regarding whether the sentences were excessive or based on wrong principles, nothing on record dem
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A. Introduction
1. The appellant, being aggrieved by the decision of the trial court that convicted him for the offences of wrongful distribution of intimate images contrary to section 37 of the Computer Misuse and Cyber Crimes Act No. 5 of 2015 and threatening to kill contrary to Section 223 of the Penal Code, has lodged this appeal. He seeks that his conviction be quashed and the 6 years imprisonment sentence for the offence of threatening to kill and 2 years imprisonment for the offence of wrongful distribution of intimate images be set aside.
2. The appeal is premised on the following grounds: that the Learned Trial Magistrate erred in matters of law and fact by convicting him on evidence that did not meet the minimum threshold to uphold a conviction; not exercising discretion and sentencing him by virtue of the provisions of Section 37 of the Computer Misuse and Cybercrime Act; by failing to order that the sentences to run concurrently and by not considering his sworn defence.
B. Background
3. Before the trial court, the appellant was charged with the offence of wrongful distribution of intimate images contrary to section 37 of the Computer Misuse and Cyber Crimes Act No. 5 of 2015 in Count 1. The particulars of the offence were that on diverse dates, between March 2021 and May 2021, at Kithuani Sub location in Matungulu Sub-county within Machakos County, wrongfully transferred intimate images of Agnes Mumbua Peter, through WhatsApp account number 0717***313 to Serah Nthambi Mutua whose WhatsApp account number is 0710***843. In Count 2, he was charged with the offence of threatening to kill contrary to Section 223 of the Penal Code. The particulars of the offence were that on the diverse dates, between March 2021 and May 2021, at Kithuani Sub Location in Matungulu Sub County within Machakos County, jointly with others not before court, without lawful excuse directly caused Agnes Mumbua Peter to receive a letter threatening to kill her.
4. The appellant pleaded not guilty to all the charges and to prove its case, the prosecution called 4 witnesses.
C. Prosecution case
5. PW1, Agnes Mumbua Peter, an adult female residing at Nguluni-Kithuani Village and a businesswoman, testified that she became involved in a romantic relationship with the accused in 2017. The relationship continued until 2019 when they began going on outings. She stated that during one such outing to Athi River in 2019, at a lodging whose name she could not recall, the accused requested to take photographs of her private parts. PW1 testified that she questioned him about his intentions and whether he would delete the photos, to which he assured her that the photographs would only be for his personal viewing. Despite her insistence, she consented to the photographs being taken.
6. PW1 further stated that their relationship continued until 2021, after which it was deferred. She alleged that following the deferment, the accused began distributing the intimate photographs to various persons via WhatsApp. She reported the matter to the assistant chief, who confirmed that he had also received such photographs accompanied by messages referencing her. PW1 then proceeded to the DCIO in Machakos, who referred her to the criminal department after which KBC Police Station took over the investigation. PW1 identified the photographs recovered by the police as those taken by the accused. She also confirmed that she recorded her statement at the police station and identified the accused on the dock as the person responsible for distributing the intimate photographs.
7. Upon cross examination, PW1 admitted that she had been married for approximately twenty years and that her relationship with the accused was an extramarital affair. She could not recall the name of the lodge where the photographs were taken and had no documentary evidence proving that the accused and herself were at a lodge. She reiterated that the accused had sought her permission before taking the photographs, which he took using his phone. She could not see the phone at the time but confirmed that it was recovered by cybercrime and established as the device used to take the photographs. PW1 confirmed that the photographs were sent to multiple persons who are not witnesses in the case. She testified that the photographs were recovered by the Cybercrime Unit and that she had seen them on the phone of the assistant chief, Madam Serah Nthambi, who had received the photographs from the accused. She identified the accused’s telephone numbers as 0717***313 and 0737***679, information verified by the Cybercrime Unit. She clarified that while the messages accompanying the photographs were received by the assistant chief, they were not part of the evidence. PW1 stated that the photographs were taken in 2019 and distribution began in 2021.
8. Upon re-examination, PW1 explained that she had not been concerned with the name of the lodge or receipts at the time of the events. She confirmed that the phone used to take the photographs belonged to the accused and believed that he still had it. She added that the assistant chief would testify as she had received the photographs and observed them. PW1 also confirmed that she had provided the telephone numbers used by the accused which were subsequently investigated.
9. PW2, Inspector Daniel Kieni, an adult male and officer number 241446, stationed at the Cybercrime and Digital Forensic Lab, testified that he holds a BSc in Information Technology from Jomo Kenyatta University of Agriculture and Technology (JKUAT). He further stated that he has undergone specialized training with the German police on crime scene management in capital offenses and holds a certificate from Cellebrite on the use of forensic tools. PW2 testified that on 25th May 2021, the lab received two exhibits from the DCI Matungulu through Cpl Jackson Haggai for forensic analysis, being:
i. Exhibit marked A – a Techno phone 331Son, IMEI 359913081823479, paired with SIM card S/N 89254021164228935587.
ii. Exhibit marked B – a Redmi Phone 5A, IMEIs 867158036934022 and 867158036934030, accompanied by a 2GB SD card without a SIM card.
10. The request was to recover any pornographic or nude images shared via WhatsApp. The case was allocated CCU number 533/2021, and PW2 was assigned to conduct the forensic examination. He reported that Exhibit A could not be analyzed using forensic tools. Analysis of its SIM card revealed nineteen SMS messages, none related to nude or pornographic images. In contrast, Exhibit B contained eleven nude images that had been shared via WhatsApp to four contacts, as follows:
i. Mrs. Wahita (0725***959) on 7th May 2021
ii. Emma (0719***003) on 6th–7th May 2021
iii. Mary Mbithi (0700***964) on 25th April 2021
iv. Kat (0714***540) on 25th April 2021
11. PW2 stated that he compiled a report of his findings (PExb2), which was verified by Chirchir. He further prepared a certificate under Section 65(8) read together with Section 106 of the Evidence Act (Pexb3). The images recovered were stored on a DVD as part of the evidence.
12. Under cross-examination, PW2 confirmed that his report (PExb2) related solely to Exhibit B, the Redmi phone. He stated that he could not determine the owner of Exhibit B, nor could he provide registration details for Exhibit A. He acknowledged recovering eleven nude images from Exhibit B shared via WhatsApp, with the recipient contacts listed as above. He did not identify other recipients such as Peter Nyamai or Serah Nthambi, and he did not provide forensic reports for the individuals who received the images.
13. PW3, Serah Mutua, the Senior Chief of Nguluni Location, testified that in 2021 she was serving as the Senior Assistant Chief of Kithuani Sub-location. She stated that on 23rd April 2021, at approximately 10:00 p.m., she received a message containing nude photographs in which the face of the woman depicted was visible. The message accompanying the photographs read: “Agnes Peter should be chased from Mukuku shopping center because she has a relationship with bodaboda riders and other men and she should be chased from leading women's group.” The number from which the message originated was unknown to her, though she could recall that it began with 0717. She attempted to call the number but could not ascertain the sender’s identity through Truecaller. PW3 further testified that on 26th April 2021, she received another message containing the same nude photographs accompanied by a message in English stating: “The government must take action.” She recounted that on 10th May 2021, PW1, Agnes Peter, accompanied by her husband, visited her office. They brought leaflets containing threatening messages and informed her about the circulation of the nude photographs in the village. PW3 inspected the leaflets (marked Mf5) and confirmed that they contained threatening messages. She directed the complainants to report the matter to Nguluni Police Station. PW3 stated that on 18th May 2021, she was summoned by the DCI, where she recorded a statement regarding the matter. She affirmed that she knew the accused well but did not know the identity of the person who sent the messages.
14. Under cross-examination, PW3 acknowledged that she did not have evidence to show that the accused was the sender of the messages. She confirmed that the messages were received from the telephone number 0717***313 but stated that she did not know the registered owner of the number and could not confirm whether the accused was the sender.
15. PW4, PC Ivey Onyango, an officer at DCI Matungulu, testified that on 18th May 2021, she was directed to investigate the matter at hand. She stated that the complainant, accompanied by the area assistant chief, reported that her nude photographs had been circulated on social media by a known person. PW4 booked the report and recorded that the complainant implicated a person named Kalumu, with whom she had been in a consensual relationship for approximately three years. According to the complainant, when she attempted to end the relationship, the accused began distributing the photographs, which had originally been taken with her consent. PW4 testified that she and her team proceeded to Koma, where they arrested the accused and took him to KBC Police Station. The accused’s phones, a Techno and a Redmi 5A were seized for forensic analysis. The accused was released on police bond of Kshs 10,000/=. PW4 recorded an exhibit memo dated 21st May 2021 and forwarded the exhibits to the Cybercrime (PExb6).
16. She further testified that on 15th June 2021, she received a report indicating that the nude photographs were stored on the Redmi phone, which had been used to distribute the images on social media. PW4 prepared an additional memo dated 2nd July 2021 to identify the recipients of the messages, marked PExb7. She received a report from the Cybercrime Unit listing individuals who had received the nude photographs; however, most recipients declined to provide statements, except for the assistant chief. PW4 charged the accused with the offenses, including the distribution of intimate images and threatening the complainant with messages circulated via flyers instructing her to vacate Mukukuni Market, Flyers marked PExb5. The complainant’s photographs were marked PExb1a-h. PW4 identified the accused on the dock as the person responsible and stated that she did not know him prior to this case.
17. Upon cross-examination, PW4 confirmed that she arrested the accused in relation to the offenses before the court but did not recover the flyers from him personally. She stated that the accused was the only person with a known motive to threaten the complainant, though she did not witness the threats firsthand. She explained that the Cybercrime Unit’s report showed the recipients of the messages, and that the phones had been recovered from the accused. She also acknowledged that the accused had subsequently made a court application to have the phones returned which was granted.
18. With these 4 witnesses, the prosecution rested its case. Upon the closure of the prosecution case, the court on 3rd April 2024 found that the prosecution had established a prima facie case and the appellant was placed on his defence. He gave sworn statement and called one witness.
D. Defence case
19. DW1, Christopher Mbithi Kioko, a resident of Kithuani and an animal farmer, testified that on 24th May 2021, police officers came to his home and arrested him without explaining the reasons for the arrest. He stated that while being taken to the police station, he saw a woman whom he was told was Agnes Mumbua, but he denied knowing her or having ever met her. DW1 testified that the phone produced in court as belonging to him was not his. He presented his own phone, described as a Bontel “Mulika Mwizi” button phone with a SIM card to the police at the time. He stated that police later brought another phone and claimed it was his. DW1 denied ownership of that phone and after testifying, returned it to KBC Police Station. He said that at the time of his arrest, he had been farming and grazing his cattle, with his wife as a witness.
20. DW1 further stated that he did not know any of the contacts on the phone produced by the police and there was no evidence that the phone was registered in his name. He provided his own telephone number as 0707***426 with Safaricom, which was the number he was using at the time of arrest. He maintained that he had been falsely implicated in the case, had no relationship with the complainant and that the allegations had affected his reputation, family and work. He prayed to be released so that he could continue with his life.
21. On cross examination, DW1 stated that the he had shown the police his phone and there was no evidence to show that the phone is his. He alleged to have been framed and defamed
22. In re-examination, DW1 reiterated that the complainant and himself were not lovers. He stated that he had purchased and used his phone for a long time and could not recall the exact date of purchase nor did he have a receipt. He maintained that the phone produced by the police in court was not his and that no evidence had been produced to show that it belonged to him. He emphasized that he had been framed with the phone and pointed out that in the photographs, a hand holding the phone was visible, though questions regarding its description were withdrawn upon objection. DW1 stated that the case had defamed him and prayed to be acquitted so that he could continue with his life and his involvement in church.
23. DW2, Francisca Mwothi Mbithi, testified that the accused, known locally as Kalumu, was being falsely implicated in the matter. She stated that she had lived with the accused for ten years without any disputes and that he had never wronged her. She confirmed that accused and herself were usually together and engaged in farming activities as a family. DW2 further testified that she was present with the accused when the police came to arrest him. She denied ever seeing the accused go anywhere without her knowledge and maintained that he had not engaged in any improper relationship with the complainant.
24. After the close of the defence case, the trial court rendered its judgment convicting the appellant on the two counts. On sentencing, the trial court sentenced him to serve 2 years imprisonment for Count 1 and 6years imprisonment for Count 2.
E. The Appeal
25. In the appeal, the appellant seeks that his conviction be quashed and the sentence set aside. The appellant seeks to rely on his submissions dated 21st March 2025. The Respondent did not file submissions as the same are not on the court record. The Appellant’s submissions are as below: -
26. The Appellant submitted that he was convicted of the offences of threatening to kill contrary to Section 223(1) of the Penal Code and wrongful distribution of intimate images contrary to Section 37 of the Computer Misuse and Cybercrimes Act No. 15 of 2018, and was sentenced to serve consecutive terms of six (6) years and two (2) years respectively, with an alternative fine of Kshs 200,000/= in respect of the latter offence. Being dissatisfied with both conviction and sentence, he preferred the present appeal.
27. He submitted that the trial was fundamentally defective for want of disclosure of crucial evidence, particularly the alleged text messages said to form the basis of the charges, contrary to Article 50(2)(j) and (k) of the Constitution. He pointed to the record where the prosecution conceded that it was unable to produce the said messages arguing that the case “died at birth.”
28. On the offence of threatening to kill under Section 223(1) of the Penal Code, the appellant contended that the prosecution failed to prove that he uttered or caused to be uttered any threat to kill the complainant. It was argued that no threatening messages or letters allegedly authored by the appellant were produced in evidence and that the purported leaflets were not recovered from him. Counsel maintained that the essential ingredients of the offence were not established.
29. With respect to the charge under Section 37 of the Computer Misuse and Cybercrimes Act, the appellant submitted that the prosecution failed to prove that he disseminated the intimate images. It was argued that the cybercrime expert (PW2) could not establish ownership of the Redmi phone from which the images were allegedly shared, nor link the phone or the relevant telephone numbers to the appellant. Further, none of the alleged recipients of the images, save for the assistant chief, testified. The assistant chief (PW3) herself stated that she did not know who had sent the messages and had no evidence linking the appellant to the same. While relying on the case of Sawe versus Republic [2003] eKLR, he emphasized that suspicion, however strong, cannot found a conviction. It was further argued that the prosecution failed to call crucial witnesses, thereby inviting an adverse inference under the principles set out in Bukenya v Uganda (1972) EA 548 and as reiterated in Paul Kanja Gitari v Republic [2016] eKLR.
30. The appellant also challenged the credibility of PW1, contending that her evidence was inconsistent and amounted to an afterthought particularly since she did not initially indicate that the appellant authored the alleged threatening letters. In this regard, reliance was placed on Akumu v Republic [1954] 21 EACA, on the value of first reports and Ndungu Kimanyi v Republic [1979] eKLR on the reliability of witnesses in criminal trials.
31. On the issue of burden and standard of proof, counsel cited the celebrated decision in Woolmington v DPP [1935] A.C 462 emphasizing that the prosecution bears the legal burden of proving guilt beyond reasonable doubt, as well as Sekitoliko v Uganda [1967] EA 53 to the effect that a conviction must rest on the strength of the prosecution case and not the weakness of the defence.
32. Regarding sentence, the appellant submitted that the trial court erred by failing to exercise discretion under Section 37 of the Computer Misuse and Cybercrimes Act and by imposing consecutive sentences. It was argued that the offences arose from the same transaction and should have attracted concurrent sentences in line with the principles enunciated in Owiti v Republic [1984] KLR 73 and Ng'ang'a v Republic [1981] KLR 530. He further invoked Sections 362–364 of the Criminal Procedure Code and urged the court to interfere with both conviction and sentence.
33. In conclusion, the appellant maintained that the prosecution failed to establish a nexus between him and the alleged offences, that the conviction was based on conjecture and insufficient evidence and urged this court to quash the conviction and set aside the sentences imposed.
Analysis and determination
34. This being a first appeal, this court has a duty to reconsider and re-evaluate the evidence presented before the trial court and arrive at its own independent conclusion. However, in doing so, the court must remain mindful that it did not see or hear the witnesses testify. See the cases of Pandya v R [1957] EA 336; Ruwalla v R [1957] EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v Republic [2010] eKLR.
35. Having considered the record of appeal as well as the submissions by parties, I discern the following issues for determination:
a. Whether the prosecution proved beyond reasonable doubt the offences of wrongful distribution of intimate images and threatening to kill.
b. Whether the sentence imposed was lawful and appropriate, including whether the sentences ought to have run concurrently.
Whether the prosecution proved beyond reasonable doubt the offences of wrongful distribution of intimate images and threatening to kill.
36. The appellant was convicted of two offences: wrongful distribution of intimate images contrary to Section 37 of the Computer Misuse and Cybercrimes Act and threatening to kill contrary to Section 223 of the Penal Code.
37. Regarding the offence of wrongful distribution of intimate images, Section 37 of the Computer Misuse and Cybercrimes Act No. 15 of 2018 provides as follows:
“Wrongful distribution of obscene or intimate images
A person who transfers, publishes, or disseminates, including making a digital depiction available for distribution or downloading through a telecommunications network or through any other means of transferring data to a computer, the intimate or obscene image of another person commits an offence and is liable, on conviction to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or to both.”
38. For a conviction under Section 37 of the Computer Misuse and Cybercrimes Act, the prosecution was required to prove that there was an intimate or obscene image of another person; the image was transferred, published or disseminated through a telecommunications network or other digital means; and the accused was the person responsible for such dissemination.
39. On proof that the images were intimate and belonged to the complainant, PW1 testified that the appellant took nude photographs of her during the existence of a relationship in 2019. She identified the images recovered from the Redmi 5A phone as hers. The cybercrime officer (PW2) stated that he extracted eleven nude photographs from the said device and produced a forensic report together with the requisite certificate under Sections 65(8) and 106 of the Evidence Act. There was therefore no dispute as to the nature of the images. They were intimate photographs within the meaning contemplated under Section 37 of the Computer Misuse and Cyber Crime Act.
40. On proof of distribution of the images through a telecommunications network or other digital means, PW2’s forensic examination established that the Redmi 5A phone had been used to transmit the images via WhatsApp to four identified contacts. The extraction report demonstrated the transmission trail. The offence does not require proof of wide public circulation; transmission to even one recipient suffices. The digital forensic evidence established dissemination through a telecommunications platform, thereby satisfying the second ingredient.
41. The central issue in this appeal is whether the appellant was linked to the dissemination of the intimate images. PW4 testified that upon arrest, the appellant was found in possession of two mobile phones: a Tecno phone and a Redmi 5A. The Redmi phone is the device from which the intimate images were extracted and shown to have been transmitted. Possession is legally significant, as it entails both knowledge and control. Once a device is recovered from an accused person and incriminating digital evidence is found therein, the evidentiary burden shifts to the accused to provide a plausible explanation consistent with innocence. The appellant denied ownership of the Redmi phone, claiming he only used a basic Bontel phone incapable of taking photographs. However, the Redmi phone was physically recovered from him. No evidence was tendered to show that the device belonged to another person, nor was the identity of such a person established. The defence therefore failed to discharge the evidentiary burden of demonstrating that the phone was shared or accessible to third parties.Furthermore, during the hearing, and as noted by the trial court, the appellant applied for the release and return of his phones. The application was not opposed, and the phones were duly returned to him. It is therefore contradictory and implausible for the appellant to now claim that the phones did not belong to him.
42. The trial court was entitled to infer exclusive control. The intimate images were found in a phone recovered from the appellant, and the complainant testified to a prior intimate relationship that had soured. These facts form a complete and unbroken chain pointing irresistibly to the appellant as the person who intentionally disseminated the images. The absence of subscriber registration details does not negate possession or actual custody. Ownership is not the gravamen; what matters is control and use.
43. On the intentional and unlawful distribution, the complainant testified that although the photographs were taken with her consent during the relationship, she did not consent to their dissemination. Once the relationship ended, the images were shared. That temporal connection supports malicious intent. The Act criminalizes distribution without consent, even where initial taking of the images was consensual. The trial court correctly appreciated this distinction.
44. Upon re-evaluation of the entire evidence, this court is satisfied that the prosecution therefore proved the offence of wrongful distribution of intimate images beyond reasonable doubt. The trial court cannot be faulted on conviction for that count.
45. Regarding the offence of threatening to kill being proved beyond reasonable doubt, the prosecution was required to prove that a threat to kill was uttered or caused to be received by the complainant; the threat was made without lawful excuse; and the threat was attributable to the appellant. On proof that a threat was made, PW1 testified that after the relationship between herself and the appellant deteriorated, threatening messages and leaflets were circulated. The contents conveyed threats to her life. PW3 corroborated this account by confirming that she received the threatening material and advised PW1 to report the matter to the police. The threatening leaflets were produced as exhibits. The language contained in the leaflets was unequivocal and conveyed a real threat of death. The test is not whether the threat was ultimately executed, but whether words or conduct were used that conveyed an intention to cause death. The offence is complete once the threat is uttered or caused to be received.
46. On attribution of the threat to the Appellant, the threatening communications did not arise in isolation. They occurred contemporaneously with the dissemination of the complainant’s intimate images, an act this court has already found to have been proved beyond reasonable doubt and attributable to the appellant. This timing is significant as the relationship between PW1 and the appellant had ended; the intimate images were disseminated from a phone recovered from the appellant and around the same period, threatening leaflets targeting the complainant were circulated. The chain of events demonstrates a common design and continuity of conduct. The dissemination of intimate images and the threats formed part of the same retaliatory pattern. Although PW3 stated she did not personally witness the appellant issue the threats, direct eyewitness evidence is not the only mode of proof.
47. A conviction may properly rest on circumstantial evidence where the chain is complete and excludes any other reasonable hypothesis. No evidence suggested involvement of a third party. The defence did not suggest any other person with motive or opportunity to threaten the complainant. The appellant merely issued a general denial. The surrounding circumstances form a coherent narrative pointing to the appellant as the author or orchestrator of the threats. The conviction on the count of threatening to kill was therefore sound in law and fact and is hereby upheld.
Whether the sentence imposed was lawful and appropriate, including whether the sentences ought to have run concurrently
48. Sentencing is a matter of judicial discretion. An appellate court will not interfere with sentence unless it is shown that the trial court acted on a wrong principle, overlooked material factors, took into account irrelevant considerations, or that the sentence is manifestly excessive or illegal.
49. The appellant was sentenced to six (6) years’ imprisonment for the offence of threatening to kill contrary to Section 223 of the Penal Code; and Two (2) years’ imprisonment for wrongful distribution of intimate images contrary to Section 37 of the Computer Misuse and Cybercrimes Act. Under Section 223 of the Penal Code, the offence of threatening to kill attracts a maximum sentence of ten (10) years’ imprisonment. The sentence of six (6) years was therefore well within the statutory limit. Similarly, Section 37 of the Computer Misuse and Cybercrimes Act prescribe a maximum penalty of two (2) years’ imprisonment or a fine not exceeding Kshs. 200,000/= or both. The sentence of two (2) years’ imprisonment was within the statutory ceiling.
50. There is therefore no illegality in the sentences imposed. The trial court acted within the bounds of the law. Regarding whether the sentences were excessive or based on wrong principles, nothing on record dem
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