Forty camels worth Sh4 million were what Irshad Abdi Abdullahi paid for the murder of Hassan Barre, a father of two.
The accused fought with Mr Barre, his village mate, for an unknown reason in 2012, and the latter was killed during the brawl.
Mr Abdullahi was charged with the murder but walked away a free man three years later, following a deal with Barre’s widow, Binto Barre.
The families of the accused and the deceased struck the agreement, which was produced before High Court judge George Dulu in Garissa County.
“… the deliberations are that the Guled family of Irshad, who is in custody, to pay 40 camels equivalent to Sh4,400,000 current market price to the family of the deceased. The family of the alleged assailant pay the compensation without any hesitation, and the elders unanimously agree to have Irshad released from custody,” read the agreement produced before Mr Dulu.
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Accused discharged
The judge ordered the criminal proceedings discontinued and the accused discharged forthwith on October 25, 2016.
The Director of Public Prosecutions (DPP) had lined up four witnesses, among them Binto, to testify against Abdullahi but they all agreed that no one was to raise a word to condemn him in court after receiving the compensation.
A meeting chaired by Bulle Abdullahi Gedi in Arel village, Turkana County, on December 19, 2015, reached the compensation deal and effectively halted the criminal prosecution.
The court cannot determine a case without hearing evidence, and a prosecutor cannot argue his case without producing testimonies and evidence in court.
And for the price of 15 cows, Musili Ivia and Mutunda Muli were freed on October 5 last year, ending their trial for the murder of Dominic Mukungi.
It was the two accused persons’ clan - Mbaa Amutei - that will pay for the death of Mukungi, who came from the Mbaa Katui clan in Mwingi East, Kyuso sub-county.
It has been two years since Mukungi was killed in Sankuri ward, Garissa County, and although his death ignited a feud between the two families, the acrimony has since eased and they now live in harmony despite the grave being a constant reminder that a life was taken away.
Ivia and Muli were charged with murder on January 23, 2016, and both pleaded not guilty.
The prosecution had not listed prospective witnesses in the charge sheet and the court was informed that only one was willing to come forward.
After adjourning three times, both families approached the prosecutor, saying they had signed a truce.
A criminal trial can take between two and six years, but within months, the murder case had been settled out of court.
From the documents of reconciliation filed in court, both families selected five representatives each and called the area chief to witness the terms of agreement.
It was agreed that the Amutei clan would pay the relatives of the deceased 15 cows and a bull. They then approached the DPP’s office to terminate the murder trial.
Taking root
Blood money compensation is slowly taking root in the country’s criminal justice system as an alternative way of resolving murder cases.
Among the Somali community it is known as ‘diya’ or ‘mag.’ In this concept, payment for a crime or a mistake by an individual is made by a person’s clan that is held collectively responsible for the misdeeds of individual members.
According to the State of the Judiciary and Administration of Justice Report 2016-2017, some 3,934 murder cases are pending in the High Court. At least 1,225 murder trials began in the High Court while 1,031 were resolved over the same period. And 1,721 attempted murder cases were filed in magistrate courts over the same period.
Of the 1,225 murder cases, most were filed in Meru County (111), followed by Eldoret (102). Nairobi and Nakuru had 91 cases each. The High Court in Kisumu had 36 murder cases, Bungoma had 31, and Migori and Busia 22 and 16 cases respectively.
Senior Assistant Deputy Public Prosecutor Moses Omirera says although the country is testing the waters, the blood money practice should be abhorred.
Mr Omirera argued that the concept should only be allowed at the tail end of a trial process.
In his view, each case must be considered on its own facts and circumstances, and the court should weigh in on whether the suspect killed deliberately or by mistake.
“I do not agree with the concept. It may be allowed in terms of the customs at the sentencing stage. Upon conviction, that proposal may be tabled indirectly in the victims impact statement,” he said.
“If there were no aggravated features and both sides have met and talked about these things then the court will consider it.”
On witnesses crippling the trial, the senior prosecutor said the courts have powers to compel a witness to appear before it.
Justice Jessie Lesiit also believes reconciliation cannot be used to solve murder cases.
Felony status
Ms Lesiit said a charge of felony status could not be settled by communities, and proceedings of any kind should be prohibited.
Lesiit made the verdict in a case that involved Abdullahi Noor Mohamed, also known as Arab, who had been arraigned for the stabbing to death of Abdifatah Sharif Mohamed on June 24, 2013.
In another case, the court released Juliana Mwikali, Grace Mue, Joseph Ngumbau and Agnes Mutisya after their family paid cows for the life of Stephen Wambua, who they had been accused of killing.
The man was killed in 2015 and the four charged with his murder. Despite the court releasing them on bail, they remained in remand until May 17 last year, when they were discharged due to poverty.
Katonye Mwangangi, the mother of the deceased, and his brother swore affidavits that they were content with the compensation they had received and were no longer interested in the case.
A copy of a handwritten agreement on the mode of payment was also filed in court.
“Having considered the request of the Prosecuting Counsel on behalf of the Director of Public Prosecutions and the documents filed on the reconciliation of the affected persons herein, I am of the view that this is a matter where the court should promote reconciliation as envisaged in the Constitution,” ruled Justice Ndulu.
In Nairobi, High Court judge Roselyne Lagat-Korir set free Mohamed Abdow Mohamed on the same concept.
In a ruling delivered on May 2, 2013, the judge let the accused go after his family paid camels and goats to the victim’s family.
Mr Mohamed was charged with the murder of Osman Ali Abdi in Eastleigh, Nairobi, in 2011.
Requesting termination
On March 26, 2012, the date of the hearing, the judge was told that the deceased’s family had written to the DPP requesting termination of the case.
“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,” read the letter written by the family.
“Actually, one of the rituals that have been performed is said to have paid for the blood of the deceased to his family as provided for under the Islamic Law and customs…”
