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DPP Keriako Tobiko appeals soldiers’ acquittal, says judge erred

By Willis Oketch | Updated Sat, October 29th 2016 at 00:00 GMT +3
Lt. Jaffery Pepella (right) and former soldiers during the ruling on their bond application at the High Court in Mombasa on March 16, 2015. [Photo: file/Standard]

The State has lodged an appeal seeking to re-arrest and jail for life, 25 naval soldiers who were acquitted on charges of deserting the military in 2007 and 2008.

In papers filed by Director of Public Prosecutions (DPP) Keriako Tobiko, at the Court of Appeal in Malindi, the State accuses the judge of wrongly substituting charges brought by the military courts and reaching a judgment after misinterpreting relevant laws.

The appeal was filed exactly a year and two months after the High Court in Mombasa freed the 25 former naval soldiers after acquitting them on charges that they deserted Kenya’s military to work for US security firms in Afghanistan, Iraq and Kuwait. They had been sentenced to life imprisonment by three court martials at the Mtongwe navy base.

However, on August 21 last year, Justice Martin Muya freed them after finding that the military courts convicted them without evidence. The judge ruled that Kenya was not at war when the soldiers left the military.

Although the soldiers were found guilty of leaving the armed forces without official permission, they were freed on the account of time served since their arrest in early 2014.

But now the State is arguing the judge freed the soldiers on a wrong premise as “there was no proper judgment issued in the case.”

Substituting charges

In papers filed by state lawyer Alexander Jamii for the DPP, the State accuses the judge of wrongly substituting charges of desertion with “being absent from duty without leave”.

Hundreds of soldiers left the military for US jobs and returned after more than five years. The 25 soldiers argued that they were lured to Mtongwe naval barracks by authorities who pretended they wanted to clear them for honourable discharge. Instead, they were detained, indicted, and they remained held at the base and later at Shimo la Tewa Prison until their release by the High Court.

They were held without bail during the entire trial. During Court of Appeal proceedings in Malindi, the State disclosed that over 800 soldiers had deserted the military in 2007 and 2008.

Some of those freed by Justice Muya have already left Kenya.

Mr Jamii wants the court to re-evaluate and re-examine each finding of the Court Martial in each of the cases. He says the judge should not have consolidated the cases and given one judgment for all of them.

He wants the Court of Appeal to nullify the High Court ruling.

“The High Court consequently failed in its duty as the first appellate court. As such, there was no proper judgment issued in the case,” says Jamii, who adds that Justice Muya misinterpreted what constitutes the offence of desertion of duty, which attracts life imprisonment. The crime of absence without leave attracts two years in jail.

He says the DPP opposed the consolidation of the cases in the High Court last year, but the judge went ahead and consolidated them. The DPP argues that since each soldier was tried individually in the court martial, the judge should have not consolidated the cases.

The solders’ lawyers, led by Gikandi Ngibuni, said at the High Court that evidence of their clients’ resignation was rejected by the military tribunals.

When he freed the former soldiers, Justice Muya declared that the military court’s judgment was “harsh and uncalled for.” Muya faulted the Court Martial’s decision, saying there was no “tangible evidence” to link the former soldiers to the charge of deserting duty during war.


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