Forgiven, not jailed: Inside Kenya's quiet push for alternative justice

Alternative Justice System Head of Secretariat Jemimah Aludah. [Courtesy]

Just like the Biblical prodigal son, Kipchirchir (not his real name) decided to return to his family and apologised for the misfortunes he had caused them for over two years.

The boda-boda operator had been violent to his wife and his two-year-old daughter, and in 2022, he attempted to kill them and commit suicide inside their house in Othaya, Nyeri County.

“After the disagreement, I went on a drinking spree, bought petrol, and I attempted to torch my house down before torching myself,” he told Senior Principal Magistrate Monica Munyendo.

Luckily, his wife and child were saved; he was also arrested and charged with attempted arson. A charge that carries a jail term of up to 14 years.

However, after hearing Kipchirchir’s story and the efforts he had made to reconcile, Ms Munyendo referred his case to the Alternative Justice System (AJS).

AJS Head of Secretariat Jemimah Aluda describes the system as an out-of-court system consisting of panellists who focus on dispute resolution so that all the parties aggrieved win.

“The system was initiated to reduce backlogs of cases and resolve family and land disputes faster. Cases that have been pending for decades have been resolved in weeks,” said Aluda.

Kipchirchir, who appeared before an AJS panel, said he wanted to kill his family because they reported him to the police for threatening to kill them. He was detained for four days.

“I lost my parents and grandparents, and my wife and child are my only support system. After they turned on me, I felt that I had nothing else to live for,” he said.

The panel established that he had a traumatic life that drove him to alcohol and substance abuse.

In the resolution, his arson case was withdrawn, provided he and his wife attended post-trauma counselling.

According to Munyendo, the AJS panel, after a visit, established that Kipchirchir had reformed and he now educates other young men on the effects of crime, alcohol, and drugs.

“If AJS was not in Othaya, I would be in jail. I am now planning to buy a place for my family to call home,” he said.

In Nakuru, Monica Muthoni, 98, agreed to forgive her grandson Peter Kamau, 30, even after he stole three Friesian Cows, which she depended on for her milk business.

An AJS Panel visited Muthoni at the chief’s office in Dundori Gwa Kiongo. Prison officers escorted Kamau from the remand, where he had been detained for over three months.

After four hours of negotiations, Muthoni, who admitted she had been fed up and wanted Kamau jailed for three years, decided to forgive him after he promised to reform.

The panel heard that Kamau had been instructed by her parents to care for his grandmother and her cows at her home in Githiomi Village, Nyandarua County.

In contrast, however, Kamau stole two cows worth Sh100,000. After an uproar, his aunts paid for the stolen cows.

A few weeks later, he stole another cow worth Sh55,000 and Muthoni, who had had enough, reported him to the police.

Kamau was arrested and arraigned before then Chief Magistrate Bildad Ochieng, now deceased, who referred the matter to AJS.

“We have been reunited as a family through the AJS, even after we clashed for years. I promise to change my behaviour because my time in prison has taught me a lesson,” he said.

The Ethics and Anti-Corruption Commission (EACC) has accelerated its bid to recover public land.

Its latest report of April 2024 showed that EACC had recovered property worth over Sh3.6 billion through AJS in Nakuru alone.

Through its communication department, the commission admitted that the majority of the grabbed properties were allocated to strangers by corrupt government officials.

However, EACC noted that once the developers learned that they had been deceived, they surrendered the property to the government.

“Kenyans have volunteered to return government property they acquired illegally, and we call upon all individuals owning titles for government land to surrender,” said EACC.

When Senior Principal Magistrate Peter Wasike was transferred to Mandera County in January 2020, he observed a ‘peculiar’ trend where many cases were being withdrawn from the courts.

When he followed up, he said he realised that over 60 per cent of the court cases were withdrawn on the basis that they had been resolved by elders.

“After I met the elders (Sultans), I realised that people had belief in their elders to resolve cases through a system called Maslaha.

Wasike said they decided to incorporate the Maslaha system and on August 28, 2023, Chief Justice (CJ) Martha Koome launched the Mandera AJS Model and Maslaha Centre.

Wasike noted that the county has communal conflicts stemming from land, pasture, and water.

The Judiciary has launched the AJS system for Muslims, dubbed Majlis Shuura (Consultation session), to resolve disputes in the Muslim community.

The office of the Director of Public Prosecutions (ODPP) is also embracing the AJS, through prison decongestion exercises in plea-bargain agreements.

In May this year, the exercise piloted at the Nakuru GK Prisons saw the release of at least 20 inmates, 50 inmates committed to non-custodial sentences, while 50 others had their sentences reduced after they admitted to their charges.

The process targeted inmates with pending cases who were willing to avoid the court process by admitting to their charges.

Notably, the Nakuru prison, with a capacity of 800, is already overcrowded, holding over 1800 inmates, including many with petty offences. At least 40 per cent are those in remand.

Vincent Monda, the Senior Deputy Director, DPP, said the exercise involved speeding up the cases as enshrined in the Constitution.

“We are listening to the inmates and their concerns, and they are listening to us too, to ensure there is an understanding of the judicial process,” he said.

A 2024/25 State of the Judiciary and Administration of Justice Report showed that courts received 621,425 new cases and concluded 647,686, achieving a Case Clearance Rate of 104 per cent.

The report also showed that pending cases fell by three per cent, while the overall case backlog reduced by 30 per cent despite a 20 per cent increase in new filings.

According to CJ Koome, expanding mediation and AJS would reduce pressure on courts by diverting suitable disputes away from lengthy litigation.

“AJS complements the formal court system and does not replace it. The resolutions are through dialogue, mediation and reconciliation while safeguarding constitutional values, human rights and the rule of law,” she said.

Judge Joel Ngugi, the chair of the National Steering Committee on AJS, noted that customary and traditional dispute resolution mechanisms are often more accessible and affordable than formal justice systems.

He said the system helps in access to affordable justice, is aligned with community traditions and practices and is efficient and, at the same time, empowers communities.

He added that the judiciary has made steps in the development and implementation of the AJS Policy.

“At least 13 counties have already operationalised county AJS action plans, with 12 more expected to finalise the process by the end of the year,” he said.

The system is full of challenges, including a lack of trust in the mechanisms, delays and lack of funding.

Law Society of Kenya (LSK) expressed that the system has diverted the right of Kenyans to get sustainable solutions to justice that incorporate quality legal support and dependable justice.

The President, Charles Kanjama, said the judiciary needed to slow down incorporating stakeholder feedback if 'they truly seek transformation in the justice sector'.

"The Judiciary should improve the efficiency of its processes, systems and officers and should enhance its performance management and measurement systems to accomplish this," he said.

He suggested that in the next decades, gaps revealed by the system need to be sealed to ensure the same is efficient and trusted.

[e-mail]