Victims, the State and the Constitutional Place of Alternative Justice Systems in Kenya
Criminal justice is traditionally understood as a public function. When a person commits an offence, the State assumes responsibility for prosecution because the wrongdoing is considered to affect not only the immediate victim but also the wider legal and social order. This explains why the decision of a victim to forgive the offender does not, by itself, extinguish the State’s interest in prosecution or determine the punishment that should follow. However, the public character of criminal justice does not mean that the State’s conception of justice must invariably coincide with that of the victim.
This tension came into focus during the sentencing proceedings in Republic v Obado & 2 others [2026] KEHC 11351 (KLR) (Crim) (23 July 2026), following Okoth Obado’s conviction for the murder of Sharon Otieno. Sharon Otieno’s parents indicated to the Court they had forgiven Obado and invited it to consider a non-custodial sentence. Their position brought an important consideration into the sentencing process. Although the State retains an independent interest in accountability and punishment, the victim’s family may understand justice in terms that also emphasise forgiveness, rehabilitation and the possibility of reconciliation.
The same tension, viewed from a different institutional perspective, underlies the ongoing constitutional petition before the High Court in Eldoret challenging the circular issued by the Office of the Director of Public Prosecutions (ODPP) on the use of Alternative Justice Systems (AJS) and mediation in criminal matters (AJS Petition). While the Obado proceedings concern the weight that may be given to a victim’s perspective at sentencing, the AJS Petition raises a broader question about the place of alternative and restorative approaches within the criminal justice system. It brings into focus the relationship between the DPP’s constitutional authority over prosecutions and the Constitution’s recognition of alternative forms of dispute resolution.
These developments raise a common question concerning the purposes and boundaries of criminal justice, particularly the manner in which the State’s responsibility to prosecute crime can coexist with meaningful victim participation, rehabilitation and restorative approaches within Kenya’s constitutional framework.
This analysis examines that relationship. It begins with the Obado proceedings to explore the place of the victim’s perspective in sentencing and the tension between the State’s interest in punishment and the victim’s own conception of justice. It then considers the competing purposes of criminal punishment and the growing recognition of approaches that give greater weight to rehabilitation, restoration and the interests of affected communities. Against this background, it examines the constitutional and statutory basis for reconciliation and alternative justice, including Article 159(2)(c) of the Constitution and section 176 of the Criminal Procedure Code, before turning to the pending AJS petition and its implications for mediation and prosecutorial discretion. Ultimately, the analysis considers how these approaches may be accommodated within a criminal justice system that must protect victims’ interests, uphold the rights of accused persons and safeguard the wider public interest.
The Obado Proceedings and Victim Perspectives in Sentencing
Following the conviction of Okoth Obado for the murder of Sharon Otieno, Sharon Otieno’s parents invited the High Court to consider leniency in relation to Obado. They expressed forgiveness and indicated that they would not oppose a non-custodial sentence, bringing before the court the victim’s family’s own understanding of what justice should require in the circumstances.
For the family, justice was not necessarily synonymous with imprisonment. Forgiveness, reconciliation, rehabilitation and the possibility of the offender contributing positively to society formed part of their understanding of an appropriate response to the offence.
The prosecution, however, maintained that the views of the victim’s family could not solely determine the sentence. Criminal proceedings vindicate the public interest as well as address the harm suffered by the immediate victim. Accordingly, although the decision of the family to forgive the convict was relevant to the sentencing process, it did not determine the appropriate sentence or displace the State’s independent interest in accountability and deterrence.
At the same time, the modern criminal justice system has moved considerably from the traditional conception of the victim as merely a witness for the prosecution. Victims have recognised rights to information, participation, dignity and consideration of their interests throughout criminal proceedings. Their views may therefore form part of a court’s assessment of an appropriate sentence even though those views do not determine the final outcome.
The Victim Protection Act reinforces this position. Section 9 recognises the right of victims to participate in criminal proceedings and, where their personal interests are affected, to have their views and concerns presented and considered at appropriate stages of the proceedings.
The victim’s perspective is, however, only one of the considerations that may inform sentencing. Probation officers’ pre-sentence reports provide the court with a broader social assessment of the offender, the circumstances of the offence, the victim’s views, the community’s attitude and the prospects of rehabilitation. These reports may recommend a non-custodial sentence where appropriate, although the recommendation does not bind the court. The 2023 Sentencing Policy Guidelines recognise the importance of such reports in sentencing decisions, particularly where a non-custodial sentence is being considered. They therefore provide an additional means through which the court can assess the circumstances of the offence and the interests of those affected before determining an appropriate sentence.
The Obado proceedings illustrate the significance of considering these different perspectives at sentencing. The decision by the family to forgive the offender does not erase the conviction or determine the appropriate sentence. It nevertheless provides the court with relevant information concerning the family’s wishes, the possibility of reconciliation and the prospects of rehabilitation. The weight accorded to these considerations ultimately depends on the purposes that sentencing is intended to serve and how those purposes are balanced in the circumstances of each case.
The Competing Objectives of Criminal Punishment
The competing considerations arising from the Obado proceedings reflect the different objectives that criminal punishment seeks to achieve. While the State has an interest in ensuring accountability for criminal conduct, the sentencing process must also consider the offender’s rehabilitation, the harm suffered by victims and the broader interests of society. These considerations find expression in the recognised purposes of criminal punishment, including retribution, deterrence, rehabilitation and restoration.
Retribution is concerned with imposing a proportionate response to wrongdoing. Deterrence seeks to discourage both the offender and the wider public from committing similar offences. Rehabilitation focuses on reforming the offender and facilitating eventual reintegration into society. Restoration focuses on addressing the harm caused by the offence, acknowledging the experience of the victim, encouraging responsibility by the offender and repairing relationships where possible.
However, these objectives do not always lead to the same outcome. A sentence that gives substantial weight to retribution and deterrence may differ from the outcome desired by a victim seeking reconciliation. An outcome that is restorative for the victim may, in some cases, be insufficient to satisfy the wider public interest in punishment, accountability and deterrence.
Criminal justice therefore requires a balancing of different interests rather than the application of a single conception of justice.
Beyond a State-Centred Model
The traditional understanding of criminal offences as wrongs against the State remains an important foundation of criminal justice. It explains why criminal proceedings are ordinarily brought in the name of the State and why a victim’s withdrawal of a complaint or forgiveness of the accused may not, in every case, bring the prosecution to an end. This is particularly important in cases involving felonies and other serious offences, including murder, manslaughter, rape, defilement, robbery with violence and corruption, where the conduct complained of raises broader questions of public safety, accountability and the administration of justice. In such cases, the complainant’s willingness to forgive the accused or pursue an amicable settlement does not, by itself, require the DPP to discontinue the prosecution or terminate the proceedings. In Mwai v Director of Public Prosecution & 2 Others; JNM & Another (Interested Parties) [2023] KEHC 3021 (KLR), the High Court, at paragraphs 47- 49, affirmed that a complainant in a sexual offence cannot compel the withdrawal of criminal proceedings merely by expressing a desire to withdraw the complaint, and that reconciliation under section 176 of the Criminal Procedure Code is unavailable in respect of felonies.
The decision to discontinue criminal proceedings must therefore take account of the wider public interest, the gravity of the offence and the constitutional responsibilities of the Director of Public Prosecutions under Article 157(8) and (11) of the Constitution. While reconciliation remains an important component of criminal justice, its application must be consistent with the law governing the particular offence and the wider interests of justice.
That understanding, however, does not mean that criminal justice is concerned only with the relationship between the State and the accused. A broader conception of criminal justice recognises the interests of victims, offenders and communities alongside the State’s responsibility to maintain public order and enforce the criminal law. An offence may cause physical, psychological or material harm to the immediate victim, disrupt the lives of family members and communities, and undermine public safety and confidence in the law. Therefore, a system focused exclusively on punishment may not fully address these different dimensions of harm.
This understanding forms part of the foundation of restorative justice. Restorative justice extends beyond identifying the law that was broken and determining the punishment that should follow. It also considers who has been harmed, the nature of that harm and the extent to which it can be acknowledged or repaired.
The Constitution provides an important basis for this broader conception. Article 159(2)(c) requires courts and tribunals to promote alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The Constitution therefore recognises that the administration of justice is not confined to formal adjudication and punishment.
However, that recognition is subject to constitutional limits. Article 159(3) provides that traditional dispute resolution mechanisms must not be applied in a manner that contravenes the Bill of Rights, is repugnant to justice and morality, produces an outcome that is repugnant to justice and morality, or is inconsistent with the Constitution or written law.
The constitutional recognition of alternative justice therefore raises the question of how reconciliation and restoration can complement formal criminal proceedings without undermining accountability, victims’ rights or the public interest.
Alternative Justice Within the Criminal Process
The use of Alternative Justice Systems (AJS) in criminal proceedings is recognised in Kenya’s legal framework. Section 176 of the Criminal Procedure Code expressly provides for reconciliation in certain criminal cases, permitting courts to promote an amicable settlement where the nature and seriousness of the offence fall within the scope of the provision. The provision empowers a court to promote reconciliation and facilitate the amicable settlement of proceedings for common assault, or for another offence of a personal or private nature that does not amount to a felony and is not aggravated in degree. Such a settlement may be made on terms involving the payment of compensation or other terms as the parties may deem fit. Where these conditions are met, the court may order the proceedings to be terminated.
The scope of section 176 is therefore limited by the nature and seriousness of the offence. It does not confer a general right on parties to resolve criminal charges through reconciliation, nor does an agreement between the parties, of itself, determine whether criminal proceedings should be discontinued. The court retains a supervisory role in assessing the proposed settlement and deciding whether to give effect to it under the provision.
Section 176 consequently provides a statutory basis for reconciliation within the formal criminal process, but only within defined legal boundaries. The application of alternative justice must remain consistent with those boundaries and the wider interests of justice. The provision therefore illustrates how restorative approaches may be accommodated within criminal proceedings without transferring the State’s responsibility for the administration of criminal justice to the parties themselves.
The Petition Challenging the ODPP Circular
It is against this background that the ongoing AJS Petition becomes particularly significant. The petition challenges an August 2026 circular issued by the Office of the Director of Public Prosecutions concerning the handling of criminal matters through Alternative Justice Systems and mediation. The circular directed that criminal matters already filed in court should not be referred to AJS or mediation and instead identified other mechanisms, including diversion and plea negotiation, for appropriate cases.
The petitioner challenges the legality and constitutionality of this position and raises issues concerning Article 159(2)(c), access to justice, prosecutorial discretion and the exercise of administrative power by the Office of the Director of Public Prosecutions.
The petition therefore raises a question about the extent to which the DPP may deploy administrative policy to restrict referrals to AJS or mediation in light of Article 159(2)(c). Its determination may clarify how prosecutorial independence under Article 157 should be reconciled with the constitutional recognition of alternative forms of dispute resolution.
Reconciling the Interests of Victims, Offenders, Communities and the State
The AJS Petition and the Obado Proceedings bring into focus the different interests that the criminal justice system must accommodate. Victims have an interest in recognition of the harm suffered and meaningful participation in the justice process. Offenders retain constitutional rights and, where appropriate, an interest in rehabilitation and reintegration. Communities have an interest in safety and social order, while the State bears responsibility for enforcing the criminal law and safeguarding the public interest.
These interests may align in some circumstances but conflict in others. Their reconciliation must therefore be guided by the nature of the offence, the applicable legal framework, the rights of those involved and the wider public interest.
Read together, the Obado proceedings and the pending petition illustrate distinct but related questions: how victim perspectives should inform sentencing, and how restorative approaches may be accommodated within the institutional framework governing criminal prosecutions.
Key Issues that May Arise in the Current Petition
The petition may have significant implications for the relationship between prosecutorial discretion and the constitutional recognition of alternative justice. Key issues that may arise in the petition include the extent to which the DPP may restrict referrals to AJS through administrative policy, the manner in which Article 157 of the Constitution should be reconciled with Article 159(2)(c), and whether the circular adequately distinguishes between offences for which reconciliation may lawfully be available and those whose nature or seriousness makes such referral impermissible.
A blanket restriction on referring criminal matters to AJS may raise constitutional concerns when considered against Article 159(2)(c) and section 176 of the Criminal Procedure Code. Although neither provision permits the indiscriminate use of reconciliation in criminal proceedings, both recognise a legal basis for alternative approaches within defined limits. Whether the circular is consistent with that framework will depend, among other things, on its scope, legal basis and the extent to which it accounts for those limits. The Court’s determination may therefore clarify the relationship between the DPP’s prosecutorial authority, the use of AJS in ongoing criminal proceedings and the State’s responsibility to administer criminal justice in the public interest.
We will continue to follow the proceedings and provide further analysis as the matter develops.
