By Willis Oketch
Some of the 27 former Kenya Navy soldiers [photo: Gideon Muandu/Standard]
:The Kenya Defence Forces (KDF) will wait for two weeks for the Court of Appeal to determine the fate and direction of three martial courts trying 26 former naval servicemen accused of deserting the armed forces eight years ago.
Three Court of Appeal judges sitting in Malindi will rule on May 29 on a Government application seeking to reinstate military trials suspended by the High Court in Mombasa on April 30.
On Tuesday, the Appellate judges declined to issue new orders for the immediate quashing of the High Court orders and set a new date for the ruling.
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Justices Hannah Okwengu, Justice Milton Asige Makhandia and Justice Fatuma Sichale set the date after hearing an application by KDF through lawyer Alex Muteti who want the execution of the High Court orders stopped.
Muteti argued that KDF considers the ex-servicemen, in detention at the Mtongwe naval base since this February, to be subject to KDF disciplinary action for alleged desertion. The soldiers left to seek jobs in Kuwait, Afghanistan and Iraq in 2007 and 2008.
Defence lawyers argue that their clients were lawfully discharged from the forces and later tricked back to be detained.
On Tuesday, Muteti pleaded with the judges to stop execution of the High Court order.
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However, the ex-servicemen’s lawyers Daniel Kamunda and Henry Kurauka opposed the application arguing the court should not entertain KDF’s application because the military had not complied with a High Court order releasing the ex-soldiers on bail.
“We are opposing this application by KDF because they have not complied with the High Court orders to release our clients from their custody” said Mr Kamunda.
The other lawyers representing the ex-soldiers are Michael Mwanyale and Charles Mwalimu, who concurred with Kamunda’s submission that KDF application should not be entertained.
Kamunda said KDF officers have been frustrating defence lawyers’ efforts to serve the military officers with court release orders they obtained from the court on April 30.
But Mwangi Njoroge, who is also representing the KDF and Cabinet Secretary, Defence Rachel Omamo, who have been sued by the ex- service men, claimed the servicemen in question had committed other disciplinary offences, which contravenes section 77 of Kenya’s constitution.
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Mr Njoroge told the court that they wanted a stay of execution of the court orders to allow them appeal against the ruling in favour of the ex-servicemen because there were high chances of having the ruling overturned.
“We have high chances of overturning the ruling when the execution of the court orders is stayed to enable us to appeal as there are triable issues in this matter” said Njoroge.
In a sworn affidavit to support the application to stop execution of the court order on April 30, Lieutenant Colonel Evans Oguna 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.
Lft Col Oguna claimed the soldiers in question have been to conflict prone areas in the Middle East which was known to have intense terrorists network activities.