[2016] KEHC 1786 (KLR)
The court found that the prosecution was unable to proceed due to the unavailability of witnesses, who were unwilling to testify following a clan-based reconciliation and compensation agreement. The court recognized the seriousness of the murder charge but held that it could not compel witnesses to testify. Invoking...
Source-derived case information.
- Citation
- [2016] KEHC 1786 (KLR)
- Parties
- Applicant: Republic; Defendant: Adow Issack Kullow
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 20 of 2014
- Procedural Posture
- Criminal Case / Ruling on Application for Withdrawal/discontinuance of Proceedings
- Outcome
- criminal proceedings discontinued; accused discharged
- Judges
- GMA Dulu
- Legal Topics
- Murder Charge, Withdrawal of Proceedings, Alternative Justice Systems, Reconciliation, Prosecutorial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Adow Issack Kullow
Defendant
Procedural Posture
Criminal Case / Ruling on Application for Withdrawal/discontinuance of Proceedings
Legal Issues
- 1 Whether the court should permit the withdrawal and discontinuance of a murder charge due to unavailability of witnesses following clan-based reconciliation and compensation.
- 2 Whether Article 159 of the Constitution allows for alternative dispute resolution in serious criminal matters such as murder.
- 3 Whether discontinuance under section 25 of the Office of the Director of Public Prosecutions Act is appropriate in the circumstances.
Ratio Decidendi
The court found that the prosecution was unable to proceed due to the unavailability of witnesses, who were unwilling to testify following a clan-based reconciliation and compensation agreement. The court recognized the seriousness of the murder charge but held that it could not compel witnesses to testify. Invoking Article 159 of the Constitution, the court determined that promoting alternative justice systems, such as reconciliation, was appropriate in the circumstances. The court concluded that discontinuance of the proceedings under section 25 of the Office of the Director of Public Prosecutions Act was justified, as the prosecution could not proceed and the dispute had been amicably...
Court Disposition
criminal proceedings discontinued; accused discharged
Orders
- Criminal proceedings against Adow Issack Kullow are discontinued under section 25 of the Office of the Director of Public Prosecutions Act.
- The accused is discharged.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO. 20 OF 2014
REPUBLIC……..............................................................PROSECUTOR
VERSUS
ADOW ISSACK KULLOW.....................................................ACCUSED
RULING
The accused Adow Issack Kullow was brought to this court on 13th October 2014 charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on 4th October 2014 at Bulla Dana in Rhamu Township Rhamu SubCounty within Mandera County murdered one Jimalle Muhammed. He pleaded not guilty to the charge.
The case was thereafter mentioned on a number of occasions, and has not commenced hearing todate. The case has been fixed for hearing a number of occasions but has not been heard, and learned Prosecuting Counsel indicated to the court that he was finding it difficult to get witnesses.
On the 14th of September 2016, learned Prosecuting Counsel Mr. Okemwa informed the court that though the matter had previously been fixed to hearing a number of times, the prosecution had failed to proceed with the matter because the police were not able to trace witnesses as the said witnesses were unwilling to come to court, as compensation had already been paid to the family of the victim. Counsel relied on a letter dated 29th February 2016 from the police at Mandera as evidence of such frustrations. Counsel also relied on minutes of meetings in which, compensation of 1million shillings was agreed between the Degodia and Garre clans of the Somali community which was attended by the County Commissioner of Mandera Mr. Kuria, as well as the Chief Officer of the National Cohesion and Integration Commission.
Counsel submitted therefore that in view of the above, it was his opinion that Article 159 of the Constitution of Kenya which required courts to embrace alternative methods of dispensing justice including reconciliation, should be applied in the present case. As such counsel argued that there is no other sensible way for the exercise of the powers of the Director of Public Prosecutions under Article 157 of the Constitution, than asking for withdrawal of the case under section 25 (1) of the Office of the Director of Public Prosecutions Act of 2012. Counsel thus urged this court to grant permission for discontinuance of the case. Counsel relied on a case of Republic Vs. Mohamed Adow Mohamed Nairobi High Court Criminal Case No. 86 of 2011.
Mr. Nyasani learned counsel for the defence, submitted that the prosecution had taken unduly long to ask for the withdrawal of the case. Counsel appreciated however what the prosecuting counsel had said and stated that the defence did not object to the request of the prosecuting counsel for discontinuance of the case.
I have considered the matter. I have perused the letter dated 27th June 2016 addressed to the Office of the Director of Public Prosecutions at Garissa and signed by Samuel Sakwa an inspector of police, for the DCIO Mandera North. In that letter it was stated that two clans of the accused and the deceased had reached a compromise in the matter. The Garre clan had agreed to pay the Degodia clan 1 million shillings as compensation. They also agreed that a person who was injured in the fight from the Degodia clan be paid 40,000/= and his medical bills be paid by the Garre clan. The said letter attached minutes of the two clans of meetings held in October 2014 which evidenced the said agreements. I have also perused the said minutes.
I appreciate that the charge brought against the accused person is a serious charge of murder. However, as the prosecuting counsel has correctly pointed out, this court cannot force witnesses to come and testify. Admittedly, it is the responsibility and duty of witnesses to assist the court and tender evidence for justice to be done. In the present case however, the witnesses are not available because the two clans Garre and Degodia have amicably settled the dispute through payment of compensation to the Degodia clan.
In my view therefore and in the circumstances of this particular case, this court may invoke the provisions of Article 159 of the Constitution and promote alternative justice system, through the reconciliation which has already been conducted.
Allowing the withdrawal of this case, as requested by the Prosecuting Counsel at this stage, does not in any case result in an acquittal of the accused, as he can still be charged for the same facts and same offence.
I thus allow the request of the Director of Public Prosecutions and grant permission for the criminal proceedings herein to be discontinued. As such the criminal proceedings herein are hereby discontinued under section 25 of the Office of the Director of Public Prosecutions Act, and the accused is thus discharged.
Dated and delivered at Garissa this 12th day of October 2016
GEORGE DULU
JUDGE