A court has allowed the Director of Public Prosecutions Noordin Haji to file an appeal against the acquittal of 25 soldiers.
The High Court had set free the soldiers sentenced to life in prison by a court martial.
The Court of Appeal has now ruled that the DPP has the right to appeal the decision acquitting the Kenya Navy soldiers who had been accused of desertion.
Appellate judges Alnashir Visram, Wanjiru Karanja and Martha Koome said the right is not derived from the KDF (Amendment) Act since the amendment cannot operate retroactively but because it (right) was endowed in the constitution.
“With the repeal of the Armed Forces Act, there is no statute that denies the applicant (DPP) the right of appeal to this court on second appeal in matters arising from court martials,” said the three-judge appellate bench.
The judges said they are persuaded that the need to conform with the constitution is what precipitated amendments to the KDF Act to allow the DPP same right as others to move to the Court of Appeal on second appeal in matters arising from court martials.
The appellate court directed the DPP to file his intended appeal against the decision to acquit the soldiers within the next 14 days.
The DPP had filed the application arguing that the KDF Act 2012 (repealed) was silent on the procedure to be adopted by the prosecution which desired to prefer an appeal.
According to the DPP, his intended appeal raises arguable points which warrant consideration of the court.
The prosecution had argued that the decision to acquit the soldiers had the effect of curtailing the court martial’s power as a disciplinary mechanism within the KDF and compromise national security.
Through their lawyers, the soldiers argued that the application by the DPP was an abuse of the court process and devoid of merit.
According to the soldiers, the DPP had no right to appeal to the court under the KDF Act or any other legislation and that the application was filed with unreasonable delay.
In 2015, High Court judge Martin Muya acquitted the former navy soldiers saying the offence of desertion had not been proved.
However, he said the offence of absence without leave had been proved but ruled that the amount of time spent by the soldiers in remand was enough punishment hence acquitting them.
The judge said it was incumbent for the prosecution to prove their case and that the sentence against the former soldiers was excessive.
The court also ruled that the charges against the former soldiers were defective and the court martial erred in finding that they were active in service.
Justice Muya condemned the “blanket” life sentence against the former soldiers saying it was uncalled for at the same time noting that the military court did not consider their mitigation.
Prior to their appeal at the High Court, the former KDF soldiers were serving their jail terms at Shimo La Tewa prison.
They had been charged at the Court Martial with Desertion contrary to Section 74 (1) (a) as read together with Section 74 (3) (2) (i) of the Kenya Defence Forces Act 2012.
They served in the KDF till the years 2007 and 2008 before being charged in 2014.