MOMBASA, KENYA: Some 26 former naval servicemen facing desertion charges will now move to the Supreme Court to try and secure bail after the Court of Appeal in Malindi yesterday reversed a High Court order issued on April 30 in Mombasa freeing them pending trial by a court martial.
The State has put them on trial alleging they deserted the Kenyan Defence Forces (KDF) to work for a US security firm in Kuwait, Afghanistan and Iraq between 2007 and 2008.
The ruling made in Malindi yesterday was initially slated for Thursday.
They suffered a setback yesterday when the Court of Appeal suspended the High Court order allowing bail pending an appeal by the state seeking to quash it completely.
On April 30 the Mombasa High Court suspended the courts martial for 60 days to hear the defence’s contention that the ex-servicemen were being charged illegally by military tribunals yet they were civilians, after leaving the military between 2007 and 2008.
However, the military’s lawyers say the suspects, who have been in detention at the Mtongwe navy base for almost 100 days, are still soldiers and hence subject to court martial. Despite the High Court’s order to free them on a Sh500,000 bail with one surety for each, military authorities refused to enforce the release orders and proceeded to the Court of Appeal to challenge the decision.
Yesterday the Court of Appeal allowed the Kenya Defence Forces to continue holding the soldiers at the base until the appeal is heard and determined.
The defence lawyers immediately applied for certified copies of the Court of Appeal proceedings to move to the Supreme Court. Justices Hannah Okwengu, Milton Asige Makhandia and Fatuma Sichale halted the release of the ex-soldiers after finding KDF had an arguable appeal against the orders, which the High Court gave on April 30 and May 2.
The judges ordered chief of defence forces General Julius Karangi to file his appeal within 30 days after he and others sued by the soldiers were granted stay of execution of the High orders to have the soldiers released pending hearing and determination of their case.
But after the judgment was given, lawyer Daniel Kamunda applied for court proceedings to move to the Supreme Court because he had instruction appeal against the decision.
“My clients are disappointed by the ruling and have decided to move to the Supreme Court to challenge the Court of Appeal decision,” said Kamunda.
“By virtue that KDF is claiming these people are still service members there is presumption they are service members subject to court martial proceedings,” said the judges.
The judges said in the light of the prevailing security situation in Kenya these people should remain in custody until the appeal has been heard.
During the hearing in the Court of Appeal last week, KDF’s lawyer Alex Muteti said the ex-servicemen were still subject to military disciplinary action.
He said according to the KDF Act, the accused were still subject to KDF laws because they have not been officially discharged from duty.
Muteti pleaded with the judges to stop execution of the High Court order, which had stopped proceedings at the martial court.
However Kamunda opposed the application arguing that the court should not entertain KDF’s application because they had not complied with the orders of releasing the former soldiers.
In an affidavit Lieutenant Colonel Evans Oguga claims the servicemen should be punished because they did not get clearance from the Principal Secretary in the Ministry of defence to go and work in foreign countries.