The Court of Appeal has allowed the State to appeal the acquittal of 26 former Navy soldiers by the High Court in 2015 a year after they were convicted by a court martial to life in prison for desertion.
The former soldiers have been contesting the State’s intention to appeal, arguing that the law it seeks to depend on was not in existence when they were freed.
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The Kenya Defence Forces (KDF) has been attempting to rely on the amended version of the Act which enables it to appeal the acquittal. Before last year the Act did not allow such an appeal.
But yesterday, the Court of Appeal ruled that even without relying on the amended Act, KDF has a right of appeal under the 2010 constitution.
The 26 were charged before the court martial with deserting to work for US security firms in Kuwait, Afghanistan and Iraq and convicted to life in prison. On August 21, 2015 Justice Martin Muya overturned the conviction and sentences, saying the charges at the court martial and subsequent conviction were factually wrong for stating that the former soldiers deserted during “war time” and freed them.
The State has since tried to overturn Justice Muya’s judgment, including seeking court orders to have the former soldiers returned to prison pending the outcome of the appeal.
KDF had also tried to rely on the amendment to strengthen its appeal which was opposed by the former soldiers.
The judges found that KDF had a right to appeal as was provided in the Constitution despite the amendment of KDF Act 2016 .
The ex-soldiers, represented by a battery of lawyers, had argued that since the KDF Act was amended in 2016 after the ex-soldiers had been acquitted, there was no way they could be subjected to the new Act which was not in existence by then.
"This right is not derived from the 2016 amendment to KDF Act, because we agree the said amendment cannot operate retroactively, but because the right was endowed by the constitution which expressly forbids discrimination and the same is not outlawed by any statute,” the judges said.
They ruled that since the appeal by KDF raised matters of public interest, it would be unfair for the court to close its eyes because the issue of whether the judgment in question was a nullity is for the bench sitting on the appeal to determine.
“One of the most important fundamental rights introduced by the 2010 Constitution is the right against discrimination as espoused under article 27. This article decrees equality of all persons before the law and the right to equal benefit of the law," the judges said.