‘Nitakuua’ not enough for conviction, magistrate rules, acquits man

A man who was accused of threatening to kill his uncle has been acquitted by the Chief Magistrate’s Court in Nyeri. 

A man who was accused of threatening to kill his uncle has been acquitted by the chief magistrate’s court in Nyeri. 

While Michael Ndiritu did utter the words ‘nitakuua nikumalize, wewe ni mjinga’ ( loosely translated to mean I will kill you, you are a fool), the context of a family land dispute undermined the threat, the magistrate found.

Senior resident magistrate Mary Gituma ruled the prosecution failed to prove the complainant genuinely feared for his life. 

The complainant, Johnstone Ndiritu, had testified that on November 28 last year he went to his farm at Muruguru location with his employee, James Kiago. 

They found the accused carrying iron sheets. 

“On questioning the accused as the iron sheets belonged to the complainant, the accused insulted the complainant,” the court heard. 

It was then that the accused made the utterances. The employee corroborated this account.

“The complainant reported the matter to the police and the accused was arrested... He explained that there was a dispute between him and the accused involving the said land.”

Ndiritu denied the charge, submitting that he visited his grandmother on the said day and decided to look around the farm. 

“He claimed that he met the complainant and PW2 [Kiago] and they were taking pictures. He asked them why they were taking the pictures but they did not respond,” court documents show. 

“The accused claimed that he notified his grandmother and she informed him that the complainant, who is his uncle, has been disturbing them.”

About 15 minutes later, police arrived and arrested him. 

The accused said there was a dispute between him and his uncle over the land, which he was given land by his grandfather and which the complainant was trying to take away.

Two witnesses, the grandmother and another uncle, also gave testimony. 

The grandmother told the court that she had sent her grandson to fetch pasture for the sheep and, from a distance, observed her son (the complainant) taking photographs but could not make out any conversation.

The uncle confirmed the land feud and told the court the complainant had “bad intentions”.

“He explained that the accused had sued him and his brothers over land. He stated that the complainant, his brothers and him had been given land by their father. However, the complainant was not satisfied and has been trying to grab their lands.”

Magistrate Gituma underscored the gravity of the charge. 

“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 10 years.” 

Although the prosecution proved that the words were indeed spoken, Gituma ruled that the context did not meet the legal threshold required for a conviction. 

“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.

“Other than the accused being found holding iron sheets, neither PW1 nor PW2 stated that the accused was armed with any weapon.

“Further, neither PW1 nor PW2 suggested that the accused acted in an aggressive manner such as approaching the complainant while uttering the aforementioned words.”

The magistrate concluded that while he found the accused did utter the words, he was not persuaded that in the context, the complainant was apprehensive for his life.

The court found the prosecution had not proved the offence beyond reasonable doubt and acquitted the accused and gave 14 days for appeal.