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The Court of Appeal has quashed the decision by the High Court to release 25 ex-soldiers who were serving life imprisonment for deserting duty in 2007.
In a judgment read on Friday, the appellate judges AK Murgor, Justice Mumbi Ngugi, and Justice George Odunga said they found glaring deficiencies in the High Court verdict, terming it null.
The Court of Appeal sitting in Mombasa declared that the judgment of August 2018, which set free the 25 ex-soldiers who appealed against Court Martial be re-heard by a different judge at the High Court.
A Court Martial sitting at the Mtongwe Naval Base sentenced the former soldiers to life imprisonment for deserting duty between 2007 and 2014, when Kenya was at war with Al-Shabaab in Somalia.
During the trial, the court heard that the accused resigned after they were lured to join private security firms in the Middle East countries. The senior most of the 25 was Lieutenant Jeffrey Okuri Pepela.
According to the court document Pepela was at Maritime Surveillance Radar Station (Masura), Malindi Station from where he disappeared on October 23, 2007, without leave.
However, Pepela was lured back to the naval base in Mombasa on March 10, 2014, when he was arrested by the military police for deserting duty in the country.
Pepela pleaded not guilty and the prosecution presented the evidence of 10 witnesses. Upon hearing of the case, the Court Martial sentenced him to life imprisonment on October 6, 2014.
Other junior soldiers who were also sentenced to life imprisonment include Gabriel Kirigha Chawana, Reid Nyamweya, Samuel Kimani Onesmus, Japheth Muriithi, Ashford Chabari, and Polycarp Nyairo.
Others were Aggrey Lanogwa, Edward, Paul Gichini, Romano Ntongondu, Leornard Kighombe, Alfred Ketole, Jonathan Manko, George Nganga, Moses, Zechariah Gichoe and Albert Muoki Mwololo.
Charged also were Victor Nabwera, Soud Mohamed Omar, John, Moses Simiyu, George Mutabari, Samuel Maingi, and Simon Njoroge Mbugua. All the accused moved to the High Court to appeal the case.
The High Court in Mombasa on August 21, 2015, overturned the sentence and set them free. But the state moved to the Court of Appeal which rendered its verdict yesterday.
According to sources in the Military and officers of the Director of Public Prosecution (DPP), the Court of Appeal ruling means that the former soldiers should be re-arrested and taken back to prisons.
During the hearing of the appeal, the DPP said the High Court judge was wrong to render a single judgment in respect of 26 separate appeals that were not consolidated.
The DPP insisted the judge misinterpreted the provisions of section 2 of the Kenya Defence Forces Act, No. 25 of 2012 on who is considered an enemy of the state.
The DPP argued that KDF laws relating to desertion are clear and that the finding that the respondents were absent without official leave (AWOL) is unlawful.
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