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JudgmentROY WAKAUNE MUGO VS The Republic9 min read

ROY WAKAUNE MUGO VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(An Appeal from the decision of Hon. R.G Mundia - P.M in Embu MCCR No.E518 of 2023 Delivered on 30th May, 2024)


  1. The appellant was charged with the offence of threatening to kill by uttering words contrary to Section 223 (1) of the Penal Code, the particulars being that on the 19th day of July 2023, at around 6.30 hours in the morning at Kiriari village at Ruguru location in Embu North sub-County, he threatened to kill Daisy Njiru and uttered the following words; “ile urogi yako umeanza kukoroga ndiyo inaniharibu. Nitakukatakata kwa njia nikuue ama niingie hapo kwako siku moja na sitaacha mtu yeyote akiwa hai – ‘Kingura’ vagina”
  2. He pleaded not guilty and the matter proceeded to full hearing with the complainant testifying as PW1.  She stated that on the 19/07/2023 she was at home cleaning utensils in the company of her grandchild and her casual employee Festus Mwaniki.  That she saw a stone thrown from the adjacent shamba and on standing up she saw the appellant who is her neighbour.  She asked Festus where the stone had come from and he told her it was Roy, the appellant herein.  That she called the appellant’s father and the village elder called Benson Ng’ang’a and told them what had transpired and she was told to go back home. 
  3. That on her way back she met the appellant’s parents and in their presence the appellant started abusing her calling her “Kingura” vagina.  That he told her that “mmeanza kukoroga uongo yangu” He then told her he would cut her into pieces and if he were to enter her house he would not leave anyone alive.  Further that, he would kill her cows.  That apart from her parents, no one else heard since it was in the morning.  She went back to the village elder who told her to go and report to the police.
  4. PW2 was Stephen Munyi Ndung’u who testified that on the material day, he was headed to Kiriari market when he heard the appellant’s loud voice abusing the complainant.  That he had known the appellant and he knows his voice. The appellant was telling the complainant that the witchcraft that she was using against him had lost power and it would possess her cows. He told her that if he got to her house, he would cut her up and no one would be left alive. That he called the sub-chief called Nelson Munene and he later recorded his statement at Kiriari.  That the appellant is his friend and he identified him on the dock.  On cross examination he stated that the appellant was at the complainant’s gate when he was abusing her.
  5. PW3 was Festus Murithi who stated that on the 19/07/2023 at around 6.30 hours, he had gone home to help the complainant to milk.  He heard a stone hit the plantation banana while the 2nd one hit the complainant’s door.  That he saw the appellant throwing the stone and he was 50 metres away.  He asked the appellant why he was throwing stones and he said our witchcraft would not defeat him and when the complainant asked him what was wrong, he repeated the same words.
  6. That the complainant called the appellant’s parents on phone and also tried to call the village elder but he could not be reached.  On her way to call the sub-area, PW1 met with the appellant’s parents and the appellant jumped over the fence while armed with a panga and intercepted his parents and asked them what they wanted there.  The appellant repeated the same threat that if he ever got to PW1’s compound he would cut her into pieces and leave her for the dead. He called her a vagina and that he would kill her and her cows.  That he has known the appellant for a long time.
  7. PW4 was P.C Geoffrey Kioko who was the investigating officer in the case.  He stated that on 19/07/2023, he was at the police post when a case was reported by PW1 who alleged that her life had been threatened by the appellant who is her neighbour.  She stated that the appellant went to her house while drank and armed with a panga, and rungu and threatened her.  On visiting the scene, they recovered the panga, rungu and stones and their in charge directed them to trace the appellant whom they arrested from his house as he was well known to him.  They escorted him to Kiriari Police Post and after he had sobered up, they took his finger prints and recorded his statement.  He produced one wooden handed panga, one concrete stone and wooden stuff as exhibits.
  8. When he was placed on his defence, he gave unsworn evidence and stated that there is a dispute between him and their neighbours.  That on the material day, on the 19/07/2023 he was trimming his fence and he had confronted his neighbour who had been releasing noxious gases to his compound.  That on the material date, they alleged that he had thrown a stone to her compound and she called his parents, the assistant chief and other neighbours.  That the chief asked how they could help him and he told him the only way was by moving his wooden structure from near PW1’s compound to the other end.  That PW1 framed him with the matter and that the exhibits were planted and that he does not have a panga.
  9. The learned magistrate found him guilty and sentenced him to serve five years imprisonment and being dissatisfied with conviction and the sentence, filed a petition of appeal praying that the appeal be allowed, the conviction be quashed and the sentence be set aside.  The following are the grounds of appeal:
  10. The learned magistrate erred in law and in fact by failing to consider that much of the evidence was hearsay.
  11. The learned magistrate erred in law and in fact on relying on a defective charge sheet.
  12. The learned magistrate erred in law and in fact in failing to consider that there was a grudge between him and the complainant.
  13. The learned magistrate erred in law and in fact by failing to consider the appellant’s defence.
  14. The learned magistrate erred in law and in fact by showing open bias which led to an unfair trial.
  15. The appeal was disposed of by way of written submissions which this Court has duly considered.
  16. The only issue for determination is whether the prosecution proved the case against the appellant.  The appellant was charged under section 223 (1) of the penal code which provides that;

“ 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 gulty of a felony and is liable to imprisonment for ten years”

  1. The ingredients of the offence of threatening to kill were set out in the case of Phenias Njeru Koru Vs. Republic (2015) eKLR as follows;
  2. without lawful excuse utters
  3. or directly or indirectly causes any person to receive a threat.
  4. the threat may be in writing or verbal.
  5. it must be a threat to kill any person.
  6. In the case of Martin Ng’ang’a Kamanu Vs. Republic (2020) eKLR 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 the 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.”

  1. In this case, the complainant testified that the appellant abused him and threatened to cut her into pieces and that if he were to enter her house, he would not leave anyone alive.  He also told her that he would kill her cows. This evidence was corroborated by that of PW2 who heard the threat when he was about 4 – 5 meters away and he repeated the same words that the appellant used when he threatened PW1.
  2. In addition to the evidence of PW1 and PW2, there is also the evidence of PW3 who was with PW1 from the beginning to the end from the time the appellant threw stones in PW1’s compound up to the time the appellant uttered the words threatening PW1.  PW3 repeated the same words that the appellant uttered which were also repeated by PW2 verbatim.
  3. In his grounds of appeal, the appellant alleges that much of the evidence was hearsay and that the learned magistrate failed to consider that there was a grudge between him and PW1, the complainant. In the case of Kiinyati Vs. Republic (1984), the Court of appeal defined hearsay evidence as follows;

“Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying, offered as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made”

  1. In regard to this issue, PW1 herself testified on what transpired between herself and the appellant.  There is also evidence of PW2, and PW3 who heard the threats being uttered by the appellant.  PW3 on his part was with PW1 in her compound and he witnessed first hand what transpired.  I do not agree with the appellant that much of evidence was hearsay evidence.
  2. On the issue of the grudge between the appellant and the complainant, the appellant in his cross-examination did not bring out that issue and no questions were put to the complainant or any of her witnesses on the the alleged grudge between them.  The appellant raised the issue for the first time in his defence which must have been an afterthought.
  3. The appellant also decried that the charge sheet was defective.  Section 134 of the criminal procedure code provides as follows;

“Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”.

  1. In the case of GMM Vs. Republic (2020) KEHC 4160 (KLR) while considering the question whether the appellant was convicted on the basis of a defective charge sheet, the court stated;

“21. On the issue of a defective charge sheet, this court would have to direct itself as to whether or not the charge sheet did not specify the offence with which the appellant had been charged.  Whether it did not give information as to the nature of the offence charged and whether the appellant was prejudiced or the same occasioned any miscarriage of justice.”

  1. The court has keenly perused the record of the trial court and it is noted that the appellant participated in the trial throughout and at no point did he raise any issue.  The particulars as set out in the charge sheet were clear on the charge that he was facing as well as the particulars of the charge.  The appellant has also not stated what prejudice he suffered, if at all, due to the alleged defectiveness of the charge.
  2. On the ground that the learned magistrate showed open bias which led to an unfair trial, this ground is so vague and no particulars were provided by the appellant.  He did not state how the trial magistrate was biased and in what way or manner, therefore, this Court does not have any specific material on this ground for consideration.
  3. On whether the sentence is harsh and/or excessive, sentencing by a trial court is discretionary and an appellate court would only interfere where it is demonstrated that the sentence imposed is not legal or it is harsh and excessive as to amount to a miscarriage of justice. This was the principle laid out in the case of Shadrack Kipchoge Kugo Vs. Republic eKLR where the Court of appeal pointed out that in order for a trial Court’s sentence to be overturned, it must be shown that the trial Court made an error in law, considered irrelevant factors or that the sentence was excessive and disproportionate.  The section under which the appellant was charged provides for a sentence of 10 years. The learned magistrate sentenced him to five years imprisonment which is not harsh and/or excessive.
  4. In the end, I find that the appeal lacks merit and it is hereby dismissed.
  5. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    ROY WAKAUNE MUGO VS The Republic ROY WAKAUNE MUGO VS The Republic