The accused person in this matter was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal code.
The facts on the face of the information read that on 24 th November 2024 af Mrangi Bar within Eastleigh Area Kamukunji Subcounty Nairobi County within the Republic of Kenya he murdered one ADAAN ABDUKADIR.
On 14 th July 2025 Ms Njoroge prosecution counsel informed this court that the Director of Public Prosecution had entered a Nolle prosequi in the matter which the Prosecution urged this court to record and discharge the accused person.
Ms Njoroge informed the court that the reason for the entry of the Nolle prosequi was that the Advocate for the accused through a letter dated 7 th May 2025 wrote to the Director of Public prosecutions informing him that the family of the deceased and that of the accused had resolved the matter through alternative Justice system.
Ms Njoroge invoked the provisions of Article 159 (2) (c) of the Constitution and submitted that the law permits parties to resolve disputes through alternative justice systems thus the Director of Public Prosecutions had considered the representation by counsel and consented to the termination of the proceedings under Article 157 (6) (c), (8) of the Constitution as read together with Section 82 (1) of the Criminal Procedure Code Cap 75 of the Laws of Kenya.
Counsel for the prosecution informed the court that the deceased and the accused person being persons of the Somali descent and ascribing to the same cultural beliefs and practices, the two families had resorted to resolving the murder through their traditional recognized method of “maslah” which ensures that the deceased’s family receives compensation from the offender’s family.
The court suo moto asked counsel for the Director of Public Prosecutions to avail a member of the deceased family to court to confirm to the court that indeed the “maslah’’ rituals had been met before the court could grant leave to the withdraw under Article 157 (8) of the Constitution.
Ms Njoroge availed one MAHAD MOALIM AHMED identity card No. 21542381 who after being sworn infromed the court that the deceased was his nephew and his father had passed away.
Ahmed informed the court that the deceased had no siblings.
Ahmed informed the court that the two families had resolved the matter in the manner explained by counsel for the state and that the necessary compensation had been paid.
He also confirmed that they had forgiven the accused and thus he had no objection to the termination of the proceedings.
The court emphasized on having the deceased’s family views being received because under Article 10 (1) (a), 10 (2) (b), (c) of the constitution the court is duty bound to ensure that there is transparency in the manner in which state power is exercised and that court processes are imbued with integrity transparency and accountability.
The victims voice must be heard before a decision is made to terminate proceedings of the nature of the matter before this court in line with the provisions of Section 4 (b) of the Victims Protection Act.
The prosecution must endeavor to capture the sentiments of victims in the form of affidavits and file them in court to sufficiently inform the court of the process leading to termination of the charges.
It must always be remembered that murder is one of the most serious crimes and once one is charged with the same, any decision to terminate or discontinue must be carefully weighed and the victim’s voice be heard.
The position taken by this court should not be interpreted to mean that the court is placing unnecessary fetter on the Director of Public Prosecutions power to terminate proceedings but it is simply borne out of the provisions of Articles 3(a), 10, 157 (8), 159 (2) (a), (c) and 159 (3) of the Constitution. The spirit of these articles must be upheld at all times.
The repugnancy clause is one that the court cannot overlook whenever parties purport to have resolved a dispute through alternative justice system based on their cultural practices and the victim’s interests and concerns must be taken on board.
The court takes judicial notice that under the Somali Culture Maslah is a recognized dispute resolution method and that the same is not repugnant to justice and morality.
The court therefore grants the requisite leave to the director of public prosecutions and Article 157(8) of the Constitution to terminate the proceedings through entry of the Nolle Prosequi dated 11 th July 2025 signed by Gikui Gichui Senior Assistant Director of Public Prosecution and received in court on 11 th July 2025.
Accordingly, the High Court Criminal Case Number E076 of 2024 Republic versus Ayaale Maxmud Qaasim is hereby marked as discontinued and the proceedings terminated.
The accused person shall stand discharged unconditionally under Section 82 (1) of the Criminal Procedure Code and shall immediately be released from prison custody unless otherwise lawfully held.
As stated in was stated by this court in Nairobi High Court Criminal Case Number E077/ 2024 Republic Vs Simon Kimani Ngunju & Another (unreported) the state should in future file affidavits of the victims and if any meetings were held between the parties, minutes of such meetings should be annexed to further make it easy for the courts to consider the reasons for withdrawal or determination within a shorter. These will eliminate the need for victims to appear in court and make their views known orally. The affidavits would make it more expedient for the courts in dealing with applications of this nature.
The prosecution and defense Council must continue to assist the court to give effect to Article 159 (2) (c) of the Constitution and reduce the ever -growing backlog cases.
I commend cancel for the parties for ensuring this matter has been sorted expeditiously. The file is now ordered to be closed.
It is so ordered.
The facts on the face of the information read that on 24 th November 2024 af Mrangi Bar within Eastleigh Area Kamukunji Subcounty Nairobi County within the Republic of Kenya he murdered one ADAAN ABDUKADIR.
On 14 th July 2025 Ms Njoroge prosecution counsel informed this court that the Director of Public Prosecution had entered a Nolle prosequi in the matter which the Prosecution urged this court to record and discharge the accused person.
Ms Njoroge informed the court that the reason for the entry of the Nolle prosequi was that the Advocate for the accused through a letter dated 7 th May 2025 wrote to the Director of Public prosecutions informing him that the family of the deceased and that of the accused had resolved the matter through alternative Justice system.
Ms Njoroge invoked the provisions of Article 159 (2) (c) of the Constitution and submitted that the law permits parties to resolve disputes through alternative justice systems thus the Director of Public Prosecutions had considered the representation by counsel and consented to the termination of the proceedings under Article 157 (6) (c), (8) of the Constitution as read together with Section 82 (1) of the Criminal Procedure Code Cap 75 of the Laws of Kenya.
Counsel for the prosecution informed the court that the deceased and the accused person being persons of the Somali descent and ascribing to the same cultural beliefs and practices, the two families had resorted to resolving the murder through their traditional recognized method of “maslah” which ensures that the deceased’s family receives compensation from the offender’s family.
The court suo moto asked counsel for the Director of Public Prosecutions to avail a member of the deceased family to court to confirm to the court that indeed the “maslah’’ rituals had been met before the court could grant leave to the withdraw under Article 157 (8) of the Constitution.
Ms Njoroge availed one MAHAD MOALIM AHMED identity card No. 21542381 who after being sworn infromed the court that the deceased was his nephew and his father had passed away.
Ahmed informed the court that the deceased had no siblings.
Ahmed informed the court that the two families had resolved the matter in the manner explained by counsel for the state and that the necessary compensation had been paid.
He also confirmed that they had forgiven the accused and thus he had no objection to the termination of the proceedings.
The court emphasized on having the deceased’s family views being received because under Article 10 (1) (a), 10 (2) (b), (c) of the constitution the court is duty bound to ensure that there is transparency in the manner in which state power is exercised and that court processes are imbued with integrity transparency and accountability.
The victims voice must be heard before a decision is made to terminate proceedings of the nature of the matter before this court in line with the provisions of Section 4 (b) of the Victims Protection Act.
The prosecution must endeavor to capture the sentiments of victims in the form of affidavits and file them in court to sufficiently inform the court of the process leading to termination of the charges.
It must always be remembered that murder is one of the most serious crimes and once one is charged with the same, any decision to terminate or discontinue must be carefully weighed and the victim’s voice be heard.
The position taken by this court should not be interpreted to mean that the court is placing unnecessary fetter on the Director of Public Prosecutions power to terminate proceedings but it is simply borne out of the provisions of Articles 3(a), 10, 157 (8), 159 (2) (a), (c) and 159 (3) of the Constitution. The spirit of these articles must be upheld at all times.
The repugnancy clause is one that the court cannot overlook whenever parties purport to have resolved a dispute through alternative justice system based on their cultural practices and the victim’s interests and concerns must be taken on board.
The court takes judicial notice that under the Somali Culture Maslah is a recognized dispute resolution method and that the same is not repugnant to justice and morality.
The court therefore grants the requisite leave to the director of public prosecutions and Article 157(8) of the Constitution to terminate the proceedings through entry of the Nolle Prosequi dated 11 th July 2025 signed by Gikui Gichui Senior Assistant Director of Public Prosecution and received in court on 11 th July 2025.
Accordingly, the High Court Criminal Case Number E076 of 2024 Republic versus Ayaale Maxmud Qaasim is hereby marked as discontinued and the proceedings terminated.
The accused person shall stand discharged unconditionally under Section 82 (1) of the Criminal Procedure Code and shall immediately be released from prison custody unless otherwise lawfully held.
As stated in was stated by this court in Nairobi High Court Criminal Case Number E077/ 2024 Republic Vs Simon Kimani Ngunju & Another (unreported) the state should in future file affidavits of the victims and if any meetings were held between the parties, minutes of such meetings should be annexed to further make it easy for the courts to consider the reasons for withdrawal or determination within a shorter. These will eliminate the need for victims to appear in court and make their views known orally. The affidavits would make it more expedient for the courts in dealing with applications of this nature.
The prosecution and defense Council must continue to assist the court to give effect to Article 159 (2) (c) of the Constitution and reduce the ever -growing backlog cases.
I commend cancel for the parties for ensuring this matter has been sorted expeditiously. The file is now ordered to be closed.
It is so ordered.