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Court of Appeal overturns acquittal of 25 former KDF servicemen

Justice John Onyiego of the Garissa High Court said the sentence included the three years and seven months that Noor Ahmed Ismail was in custody during the trial. (Photo: EV)

By Farhiya Hussein | Friday, March 1, 2024

The judges further directed that the appeals be expedited and determined on a priority basis

The Court of Appeal in Mombasa on Friday overturned a High Court decision that acquitted 25 former Kenya Defence Forces (KDF) servicemen who had challenged their convictions by the Court Martial.

The 25 former KDF servicemen had been charged by the Court Martial with the offence of desertion, contrary to Section 74(1) (a) of the Kenya Defence Forces Act 2012.

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They all pleaded not guilty, and after the trial, the Court Martial found them guilty and sentenced them to life imprisonment.

Dissatisfied with the conviction and the sentence, the former KDF officers filed an appeal at the High Court.

The High Court, in a judgment dated August 21, 2015, allowed the appeal, setting aside both the conviction and the sentence and setting all the respondents at liberty.

The DPP, however, appealed the decision by the Mombasa High Court to acquit the 25.

They include Jeffrey Okuri Pepela, Gabriel Kirigha Chawana, Reid Nyamweya, Samuel Kimani Onesmus, Japheth Muriithi, Ashford Chabari, Polycarp Nyairo, Aggrey Lanogwa, Edward Odanga, Paul Gichini, Romano Ntongondu, Leornard Kighombe, Alfred Ketole, Jonathan Manko Murimi, George Nganga, Moses Bolo, Zechariah Gichoe, Albert Muoki Mwololo, Victor Nabwera, Soud Mohamed Omar, John Mutua, Moses Simiyu, George Mutabari, Samuel Maingi and Simon Njoroge Mbugua.

The prosecution, through Yamina Jami, submitted that the High Court failed to fulfil its obligation to independently and thoroughly evaluate the decision of the Court Martial and in so doing, arrived at the wrong conclusion of acquitting the accused.

He further stated that the judge failed to review the factual findings and conclusions in relation to the individual appeals rather than issuing a single judgment for all 25 respondents.

In a judgment delivered by a three-member Court of Appeal judge bench consisting of Lady Justice Agnes Murgor, Lady Justice Mumbi Ngugi and Justice George Vincent Odunga, ordered for the rehearing of the appeal by a High Court judge other than the judge who previously heard the appeals.

They further directed that the appeals be expedited and determined on a priority basis, taking into account the time that has so far elapsed.