Twenty-five former Kenya Defence Forces (KDF) soldiers who were convicted by the military court for desertion of duty but later acquitted by the High Court have been summoned for a fresh hearing of the case on April 30 in Mombasa.
The Office of the Director of Public Prosecutions (ODPP) has notified the soldiers to appear in court in person or through their advocates for a mention of the case.
“Take further notice that in the event of your failure to appear in person or by advocate as ordered by the court ,the applicant shall be at liberty to seek orders for your arrest and committal to prison to serve the remaining term of the sentence of life imprisonment as passed by the Courts Martial following your convictions,” Assistant Director of Public Prosecutions Jami Yamina said in the notice.
The ODPP has further warned the former soldiers that the application may be heard and decided in their absence should they fail to honour the summons to appear before the High Court in Mombasa.
Their case will be heard again after the Court of Appeal overturned a High Court judgment acquitting the former soldiers for the offence of desertion of duty, which the State alleged happened at a time the country was facing aggression from her enemies.
The 25 former Kenya Navy soldiers, who were sentenced to life imprisonment before being acquitted by the High Court, will be retried for desertion of duty.
The soldiers, who have enjoyed their freedom since 2015, now risk being jailed again if their initial conviction will be upheld after the Court of Appeal ordered the rehearing of their case.
Three appellate judges, Agnes Murgor, Mumbi Ngugi and George Odunga faulted the High Court for failing to render judgments in each of the 25 appeals as required by law.
“We agree with the State that the first appellate court failed in its duty to re-evaluate the evidence on the record in each of the respondents’ appeals so as to reach its own independent conclusions. As a result of the glaring deficiencies, we find of necessity to declare the first appellate court’s judgment a nullity,” said the judges in a decision delivered last month.
The judges noted that since the appeals arise from court martial proceedings, a rehearing will involve the re-assessment and re-evaluation of the evidence on record, therefore, the question of attendance by witnesses does not arise.
The appellate judges declared a judgment delivered by the High Court on August 21, 2018, a nullity and ordered the rehearing of the case, where the new judge will analyse the appeals of each of the 25 soldiers.
“The appeals specified herein are remitted back to the High Court for rehearing by another judge other than the judge that heard the appeals. The rehearing of the appeals should be expedited and determined on a priority basis, having regard to the period that has so far elapsed,” said the judges.
In 2015, High Court Judge Martin Muya set free the 25 ex-soldiers after overturning a court martial verdict that sentenced them to life imprisonment for desertion. While acquitting the former soldiers, Justice Muya noted that the KDF and the ODPP had not proved they abandoned duty.
The judge said the charge of desertion had not been proven and that the former soldiers were only absent without leave.
The ex-soldiers had appealed the conviction that they had been handed by the court martial in Mtongwe.
They argued that the charges of deserting during wartime were defective.
Furthermore, they informed the High Court that the acts for which they were convicted were supposed to have occurred in 2007, but the statute they allegedly violated was passed in 2012.
They further contended that Kenya was not at war when they left the country, and they had written letters of resignation before leaving the military.
The State accused the former soldiers of quitting the military between 2007 and 2008 to work for private American security corporations that sent them to Afghanistan, Iraq, Kuwait, Syria, and Jordan.
The former soldiers claimed that they were unlawfully convicted under the Kenya Defence Forces Act 2012, despite leaving the service under the Kenya Armed Forces Act.
Justice Muya agreed with the former soldiers and set them free.
However, the ODPP appealed at the Court of Appeal, where Mr Yamina argued that the High Court failed to fulfil its obligation by independently and thoroughly evaluatinh the decision of the court martial.
