[2017] KEHC 2572 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA CRIMINAL CASE NO. 2 OF 2016

REPUBLIC……………………………………………………….PROSECUTOR

VS

MUSILI IVIA……...…………………………………………..…1ST ACCUSED

AND

MUTINDA MULI……….………………………………………2ND ACCUSED

RULING

The two accused herein Musili Ivia and Mutinda Muli stand charged with murder contrary to section 203 as read with 204 of the Penal Code. The particulars of the offence are that on 23rd January 2016 at Q order form in Sankuri Location in Garissa County in the Republic of Kenya jointly murdered Dominic Mukungi Mutemia. The prosecution did not list any prospective witness in the Information which contains the charge sheet.

The accused were first brought to court on 9th February 2016 and on 2nd March 2016 that they pleaded not guilty to the charge and the hearing of the case was fixed for 30th August 2016. On that day, Mr. Okemwa the Principal Prosecuting Counsel informed the court that though he had present in court one prosecution witness, the prosecution had not served witness statements on the defence and thus asked for adjournment. Hearing was thus fixed for 11th October 2016. The matter case has since been adjourned severally for various reasons.

Ultimately on 26th May 2017 Mr. Okemwa for the Principal Prosecuting Counsel informed the court that a new development had came to light, that clan members of the deceased and the accused had approached their office requesting termination of the criminal proceedings, as they wanted to pursue an amicable resolution on the issue of the death of the deceased. The case was thus adjourned.

The matter was thereafter mentioned on 26th June 2017, and on 27th July 2017 Mr. Okemwa informed the court that a settlement had been reached by the kin of both the deceased and the two accused persons for amicable settlement. Counsel stated that in the circumstances it would not be possible for the prosecution to get relevant witnesses come to court to testify in support of the prosecution case. Counsel tendered to court written minutes of inter-clan discussions held and agreements signed between relatives of the deceased and relatives of the accused persons evidencing agreement for payment for blood money under customs of the Kamba community, in the form of cows and bulls.

Counsel informed the court that such an arrangement was not inconsistent with Article 159(2) (c) of the Constitution of Kenya 2010, nor did it contravene international principles of human rights, and relied on a ruling in Nairobi High Court Criminal Case No. 86 of 2011 REPUBLIC-VS-MOHAMED ABDOW MOHAMED as well as a previous decision of this court in Garissa Criminal Case No. 10 of 2015.

The Principal Prosecuting Counsel concluded by asking this court to allow the request of the prosecution for discontinuance of the criminal proceedings herein.

Mr. Wambugu who held brief for Mr. Nyasani for the accused persons stated that the defence did not oppose the request.

I have considered the request by the Director of Public Prosecutions. I have also perused the documents filed as evidence for the amicable settlement in this criminal matter on the killing of Dominic Mukungi Mutemia.

The deceased is from the Kamba community from the Mbaa Katui clan in Mwingi East area, Kyuso District. The two accused persons also come from the same area and are from the Mbaa Amutei clan.

From the documents of reconciliation filed in court, the Amutei clan was represented by Muuvie Mbuvi, Titanic Lungui Kimwele, Mbiti Kilingi Ngia, Mwanza Mutemie and Stella Nzuvili, while the Mbaa Katui clan was represented by John Musyoka Mutemi, Jacob Muimi Mutemi, Lydia Kanyiva Musya, Priscilla Samuel Kimunga and John Matoi Mwenga. The agreed terms were witnessed by the Chief of Nguni Location Kyuso District PS Kimunga. It was agreed that the Amutei clan will pay the surviving relatives of the deceased fifteen (15) cows, and a bull and a cow has already been paid.

In determining the request by the representative of the Director of Public Prosecution, I have to state that in my view, each case has to be considered on its own facts and circumstances.

A court has to consider the provisions of the Constitution, the written law and international conventions. If any of these prohibit such a settlement then the request has to be declined. Secondly the court has to consider the effect such a proposed settlement will have on the interests of the victim, relatives of the victim, local community and the public at large. In the circumstances of this case, I do not find the settlement agreement to be inconsistent with the spirit and purpose of Article 159(2) (c ) and (3) of the Constitution of Kenya 2010 which provides as follows:-

159 (2) in exercised judicial authority, the courts and tribunals shall be guided by the following principles.

(a) ………………………

(b) ………………………

(c) Alternative formed of dispute resolution including reconciliation, mediation, arbitration and tradition dispute resolution mechanisms shall be promoted, subject to clause (3);

(d) ……………………….

(e)………………………..

(3) Traditional dispute resolution mechanisms shall not be used in a way that:-

(a) contravenes the Bill of Rights.

(b) is repugnant to justice and morality or results in outcomes that are repugnant of justice or morality; or

(c) inconsistent with this Constitution or any written law.

I am also not aware of any written law or International Convention that prohibits the amicable settlement proposed. The victim is already dead, and close relatives agree to the settlement. I have not been told that there is any objection from the community or the public. I will therefore accord the clan settlement consideration in this matter.

Under Article 157(6) and (8) of the Constitution of Kenya 2010, the Director of Public Prosecutions has power to discontinue criminal proceedings subject to the permission of the court. He has now asked for such discontinuance of the criminal proceedings, on the above reconciliation agreement. He has stated that as a result of the settlement reached he cannot be able to avail prosecution witnesses. In my view, this court is entitled to promote the reconciliation as requested and I thus allow the request of the Director of Public Prosecutions and order that the criminal proceedings herein against the two accused herein for murder be and are hereby discontinued.

As no witness has testified yet, both the accused persons are hereby discharged.

Dated and delivered at Garissa on 5th October, 2017.

GEORGE DULU

JUDGE