A court of Appeal in Mombasa on Friday, March 1, overturned a High Court decision that acquitted 25 former Kenya Defence Forces (KDF) soldiers.
In a statement released by the Office of the Director of Public Prosecutions (ODPP), the 25 had previously challenged a ruling by the court-martial, that had sentenced them to life in prison over the offence of desertion.
A ruling delivered by a three-member bench of the Court of Appeal, however, has mandated a retrial of the appeal by a different High Court judge, putting the liberty of the 25 individuals at risk.
The decision by the Court of Appeal followed a demand from the Director of Public Prosecutions (DPP) to review the verdict issued by the High Court of Kenya in Mombasa, which acquitted the soldiers. The prosecution contended that the High Court failed to adequately assess the ruling of the Court-martial, resulting in an inconclusive decision.
Defending the decision to reverse the acquittal, the prosecution added that the Judge, who issued a single judgment for the 25, failed to review the factual findings and conclusions concerning the individual appeals.
Under Section 74(1)(a) of the Kenya Defence Forces Act 2012, the former servicemen were found to have violated the law by legally abandoning the defence forces.
Despite pleading not guilty, the Court Martial found them guilty and sentenced them to life imprisonment.
Subsequently, dissatisfied with the sentence, the soldier appealed at the High Court. In a judgment delivered on August 21, 2018, the appeal was successful, resulting in the release of all respondents.
The Kenya Defence Forces (KDF) accused the soldiers of deserting their duty in 2007 and 2008 to work for US security firms in Kuwait, Iraq, and Afghanistan.
Facing charges before three military courts at the Mtongwe naval base, the 25 individuals denied the allegations of desertion during wartime.
They argued that they were charged under the Kenya Defence Forces Act of 2010, despite leaving the military in 2007 and 2008 meaning, they should have been tried under the Kenya Armed Forces Act.
