Automated Summary
Key Facts
Mohamed Abdow Mohamed was charged with the murder of Osman Ali Abdi in October 2011 at Eastleigh, Nairobi. The prosecution sought to withdraw the case after the families of the accused and deceased reached a settlement under Islamic law, involving compensation of camels, goats, and traditional ornaments. The court, citing Article 159(1) of the Constitution, discharged the accused on 2 May 2013, recognizing the settlement as a valid alternative dispute resolution mechanism.
Issues
The court considered the application to discontinue a murder prosecution after the accused's family and the deceased's family reached a settlement under Islamic law, involving compensation through camels, goats, and traditional rituals. The issue centered on the legality of discontinuing criminal proceedings via traditional dispute resolution mechanisms under Article 159(1) of the Constitution, balancing the Director of Public Prosecutions' mandate (Article 157) with the parties' mutual satisfaction and adherence to cultural practices.
Holdings
The court discharged the accused, Mohamed Abdow Mohamed, after the Director of Public Prosecutions (DPP) discontinued the criminal proceedings. The discontinuation was based on a settlement reached under Islamic law and customs, where the families resolved the matter through traditional compensation (camels, goats, ornaments) and reconciliation. The judge cited Article 157 of the Constitution, which grants the DPP authority to discontinue proceedings, and Article 159 (1), allowing courts to use alternative dispute resolution mechanisms. The court concluded that the ends of justice were satisfied by allowing the withdrawal of the case.
Remedies
- The accused was released from custody forthwith, unless otherwise lawfully held, following the settlement between the families.
- The court discharged the accused, Mohamed Abdow Mohamed, from the murder charge as the matter was settled through traditional and Islamic compensation methods.
Legal Principles
The court relied on Article 159(1) of the Constitution, which allows courts to be guided by alternative dispute resolution (ADR) mechanisms including traditional and Islamic laws, and Article 157 of the Constitution, which grants the Director of Public Prosecutions (DPP) the authority to discontinue criminal proceedings at any stage. The judge concluded that the ends of justice were served by allowing the discontinuation due to the settlement and reconciliation between the families under customary law.
Cited Statute
Constitution of Kenya
Judge Name
R. LAGAT - KORIR
Passage Text
- Under Article 157 of the Constitution the Director of Public Prosecution is mandated to exercise state powers of prosecution and in that exercise may discontinue at any stage criminal proceedings against any person. In the unique circumstances of the present application, I am satisfied that the ends of justice will be met by allowing rather than disallowing the application.
- The two families have sat and some form of compensation has taken place wherein camels, goats and other traditional ornaments were paid to the aggrieved family. Actually one of the rituals that have been performed is said to have paid for blood of the deceased to his family as provided for under the Islamic Law and customs. These two families have performed the said rituals, the family of the deceased is satisfied that the offence committed has been fully compensated to them under the Islamic Laws and Customs applicable in such matters and in the foregoing circumstances, they do not wish to pursue the matter any further be it in court or any other forum.
- He is set at liberty forthwith unless otherwise lawfully held.