25 ex-soldiers go into hiding after Court of Appeal deals them blow

KDF soldiers patrol Ol-Moran area in Laikipia County on September 12, 2021. [Kipsang Joseph, Standard]

Twenty-five former military officers whose seven years of freedom were on Friday cut short by the Court of Appeal are said to have gone missing.

The ex-soldiers are to be re-arrested after the Court of Appeal in Mombasa nullified the High Court judgment of 2018, which had saved them from serving life imprisonment.

Justice Agnes Murgor, Justice Mumbi Ngugi and Justice George Odunga declared that the judgment of August 2018, which set free the 25 ex-soldiers following their appeal against a Court Martial decision, was a nullity.

The judges instead ordered the appeal be readmitted to the High Court for a fresh hearing before any other judge apart from the one who heard it in 2018.

"Given the foregoing, we consider that the order that best lends itself in the circumstances is a rehearing of the appeals against the court martial verdicts in each of the respondents' cases.

"Consequently, we allow the appeal pursuant to section 361(2) of the Criminal Procedure Code and make the following orders: The appeals specified herein are remitted back to the High Court for rehearing by another judge other than the judge that heard the appeals," said the judges.

The former soldiers had been convicted of deserting the military to work for US security firms in Kuwait, Iraq and Afghanistan.

The former soldiers who will now go back to jail to serve as an example to other soldiers who may harbour thoughts of deserting the military will be arrested by the police.

The ex-soldiers' lawyers said they would go to the High Court and ask for bond, pending re-hearing of the appeal. The appellate judges ordered that the re-hearing of each appeal be given priority.

Lawyer Samuel Odhiambo, who is representing 10 of the ex-soldiers, admitted that his clients were convicts until their appeals are heard and determined.

The life imprisonment had been handed to them by Court Martial at Kenya Navy Base in Mtongwe in 2015 for desertion of duty when the country was at war.

They successfully appealed against the conviction and sentence in the High Court, which set them free.

The Directorate of Public Prosecutions successfully appealed against the judgment of the High Court.

Speaking after the Court of Appeal decision, state lawyer Alexander Jamii expressed satisfaction with the decision.

"They are supposed to be at Shimo La Tewa serving life imprisonment," said Jamii.

He, however, did not say when they would give the notice for the mention in the High Court for direction.

During the hearing, the soldiers claimed they were tricked by senior military officers to report back to Kenya Navy Mtongwe Base and be paid their retirement benefits.

However, after reporting back, they were detained before charges of desertion of duty were preferred against them.

The soldiers, led by Lt Jeffery Okuri Pepela and 24 other servicemen, were found guilty of desertion of duty during the war against Al Shabaab in Somalia and were sentenced to life imprisonment.