It was celebration galore after the High Court in Mombasa overturned the Court Martial’s decision to sentence 25 former soldiers servicemen to life sentence imprisonment for deserting the military.
The High Court quashed the sentenced and set the ex-soldiers free terming last year’s ruling by the Court Martial as “harsh and uncalled for” sparking dancing, singing, shouts of joy among family members and friends of the accused soldiers.
Justice Martin Muya faulted the Court Martial’s decision saying there was no “tangible evidence” to link the ex-soldiers to the charge of deserting duty during the war but upheld the second charge that the soldiers left their work place without leave.
He said the prosecution had failed to prove that the country was at war with Somalia between 2007 and 2008 when the soldiers left the service.
“I find the prosecution did not prove the case beyond any reasonable doubt that the appellant had deserted the military jobs while Kenya was at war with Somalia. I therefore set them free,” said Justice Muya.
God is great
The judge said the second charge, being absent from work without permission, carries a maximum sentence of two years, which the appellants had already served given they had been detained for one and half years.
“I there find the accused guilty of being absent from duty without permission and they are liable for sentence of two years. However they have already been in detention for one and half years which is equivalent to serving their sentence. I there set them free because they have served the sentence,” ruled the judge.
The ruling sparked celebration in the court room as relatives and other ex-soldiers who had been following the proceedings anxiously at the public gallery broke into shouts of joy.
“God is great. At long last God has answered our prayers. To Him be the glory,” said one of the relatives.
The soldiers were accused by their seniors of deserting their naval stations in 2007 and 2008 ‘during war time’ to work for US security firms in Iraq, Afghanistan and Kuwait.
Their lawyers led by Gikandi Ngibuni insisted during the hearing of the appeal that soldiers’ resignation evidence was rejected by the military tribunal after tendering resignation documents as proof that they were lawfully allowed to leave the armed forces.
The soldiers claimed that the Kenyan military was not engaged in any war when they quit. They further allege that they have been charged and convicted under the Kenya Defense Forces Act of 2010, yet they left the force before it was enacted.
The judges who presided over the tribunals are former Mombasa Senior Principal Joyce Gandani, former Kwale Senior Principal Elizabeth Usui and former Mombasa Principal Magistrate Samuel Gacheru.
He however said the prosecution proved beyond reasonable doubt that the appellants were guilty of being absent from their duty without leave which only carries a maximum sentence of two years only.
Yesterday, Justice Mutya also found that Court Martial illegally jailed Lft Pepela to life imprisonment and yet he was only charged with desertion which carries a maximum of two years.
Senior Assistant Director of Public Prosecution Alex Muteti efforts to have the soldiers detained as he prepared to appeal was also denied by the court.
“You honour I want the court to grant interim orders for of a stay (ex-soldiers to remain in custody) for 14 days to allow us to file an appeal at the Court of Appeal because the court has a duty to listen to both sides,” said Muteti.
He said the celebration which had been witnessed in the court would could easily derail essence of discipline in the Kenya Defence Forces.
The assistant DPP argued that they should be given stay so that the soldiers are taken back to Shimo La Tewa to wait for the appeal against the decision.
Release of the appellants also met stiff opposition from the defence lawyers.
Gikandi said DPP had no legal rights to ask the court to stay acquittal because the court had no jurisdiction. He told the judge not to allow the application.
In his ruling the judge ordered Kenya Defense Forces to release the documents they were holding and said the DPP be supplied with the proceedings to allow them to head to the Court of Appeal.
Following judge’s decision in rejecting Muteti’s application to stay execution of the release of the appellants, the crowd at the gallery burst into song and dance.