1. The Appellant appealed against the conviction and sentence of the Court Martial in Moi Air Base No 12/2022. The Appellant was convicted for the offences of Absence without leave contrary to Section 75(1) as read with Section 75(2) of the Kenya and Escape from Custody contrary to Section 105 of the Kenya Defence Forces Act . He was sentenced to 2 years imprisonment for each count ordered to run concurrently.
THE CHARGES
2. The Appellant was arraigned for plea on 30/5/2022 and 14/10/2022 when the amended charge sheet was read to him as follows:-
1. Conduct to prejudice the good order and service discipline contrary to Section 121 of the Kenya Defence Forces Act .
On diverse dates in the month of January 2021 within Eldoret town in pretext that he was in a position to recruit Mr Elphas Kipkorir Chebii of National ID Card No 32397680 into the Kenya Defence Forces solicited and received Ksh 300,000/= in two tranches Ksh 280,000/= cash from Mrs Emily Jebet Chebon of ID 22063131 and Ksh 20,000/= from Mpesa account no 0725101185 Gladys Cherono ID 33982245 at the request of Mrs Emily Jebet Chebon on false pretence he was in a position to recruit Mr Elphas Kipkorir Chebii of No 32397680 into the Kenya Defence Forces an act he knew or ought to have known constitutes an offence .
3. ALTERNATIVE CHARGE : Committing a Civil Offence contrary to Section 133 (1)(b) of the Kenya Defence Forces Act that is Obtaining Money by false pretenses contrary to Section 313 of the Penal Code, particulars of the charges are that :
On diverse dates in the month of January 2021 within Eldoret town with intent to defraud obtained Ksh 300,000 in two tranches, Ksh 280,000/= cash from Mrs Emily Jebet Chebon and Ksh 20,000/= Mpesa from Gladys Cherono on false pretense he was in a position to recruit Elphas Kikorir Chebii into the Kenya Defence Forces a fact he knew or ought to have known to be false.
4. Conduct to prejudice the good order and service discipline contrary to Section 121 of the Kenya Defence Forces Act
On diverse dates in the month of January a 2021 and April 2021 within Eldoret town in pretext that he was in a position to recruit Sheila Jebiwott of National ID Card No 37558513 into the Kenya Defence Forces solicited and received Ksh 331,500/= in two tranches Ksh 291,000/= cash from Mrs Emily Jebet Chebon
of ID 22063131 and Ksh 40,000/= from Mpesa account no 0725101185 Gladys Cherono ID 33982245 at the request of Mrs Emily Jebet Chebon on false pretence he was in a position to recruit Mr Elphas Kipkorir Chebii of No 32397680 into the Kenya Defence Forces an act he knew or ought to have known constitutes an offence .
5. ALTERNATIVE CHARGE : The Appellant was charged with the civil offence of Obtaining Money on False pretence under Section 313 of the Penal Code ., on diverse dates in January and April 2021 with intent to defraud the Appellant obtained Ksh 331,500/= from Emily Jebet Chebon and Gladys Cherono on false pretense that he was in a position to recruit Sheila Jebiwott an act he knew or ought to have known to constitute an offence .
6. Absence without leave contrary to Section 75(1) as read with Section 75(2) of the Kenya Defence Forces Act .
The particulars of the charges were that on 6/9/2021 at 08000hrs the Appellant absented himself without leave until he was apprehended by military police personnel on 28/11/2021 total time 83 days at about 0045hrs an act he knew or ought to have known to be false.
7. Escape from Lawful custody contrary to Section 105 of the Kenya Defence Forces Act .
Particulars of the charges were that :
On 10/6/2022 at or about 1310hrs the Appellant escaped lawful custody while being held at Moi Airbase main gate guardroom during closed arrest awaiting trial by court Martial and remained at large until 29/6/2022 when he presented himself back at Moi Airbase main gate and was escorted to Moi Airbase main gate guardroom, an act he knew ought to have known to have constituted an offence.
The Appellant pleaded not guilty to all the charges.
The Prosecution called 12 witnesses in proof of the charges.
The Prosecution later withdrew the charges on Count 1 and Count 2 under Section 87A of the Criminal Procedure Code.
THE EVIDENCE AT TRIAL.
8. PW1 Ambrose Munyoki from the Law Enforcement Liasion Office Security Department of Safaricom PLC as Data Analyst he referred to extract copies of Mpesa Statements of mobile No 0725101185 and 0722880006.The numbers were registered in the Appellant’s name Gilbert Biwott Kipya of ID registration number 25171038. He was served with Court order to process the details sought. He extracted the statement using a computer and a printer and also produced the Certificate of electronic evidence under Section 106 and 65 of the Evidence Act. He produced the Statements Orders & Certificate as exhibits.
9. In cross examination by Defense Counsel, he stated that Safaricom has records of ID Card numbers and names of subscribers and the ID Card is submitted during registration. A photo is also taken and is keyed and kept as part of records. He confirmed that the certificate of electronic evidence does not bear the letter head of Safaricom.He also confirmed that he did not come with any document that confirms that the phone number 0725101185 belongs to the accused. That Safaricom PLC is able to tell the location of any line at any given time.
10. The witness was stood down after the defence counsel indicated that some pages were missing on the Mpesa statement.
11. Pw2 Major Naomi Nyakerario Ondieki serving at officer cadets as an adjutant and stationed at Kenya Military Academy.
12. She stated that on 6/9/2021 she received information from Cadet Intake 40 who were on field training exercise at Mt Kenya. One driver attached to the training was absent. The driver was the accused who was also pointed out by the witness before the court.
13. After receiving the message she raised the AWOL message and initiated absent message to the Academy headquarters. PW2 learnt about the accused absence through a letter from the Cadet intake which she acted on.
14. PW2 referred to the Cadet Intake document which was issued after 7 days when a person has an AWOL and has not returned back to duty. The document report included service member and also restricted payment. It was used to restrict the Appellant’s salary payment. The Abseight document exhibit 5 in the Abstract was sent after 7 days after a person had an AWOL.
15. In cross examination by Defense Counsel, PW2 stated that people work in shifts and there is also a document which confirms that the Accused was supposed to be on duty on a particular day but it was not availed /produced in proceedings. There are also documents for the shifts and specific time. PW2 stated that Accused was supposed to be in Mt Kenya not Isiolo.
16. PW2 did not have any documents confirming the Appellant was supposed to be on duty at that time. She did not have documents indicating he was assigned to be at Mt Kenya that day.PW2 stated that she was acting on a letter that she received from the Commanding Officer and and acting on the information received initiated the letter to the Military Academy headquarters.
17. PW2 acted on the letter which was from the Command Wing of Cadet Intake KMA Forces, she did not have this letter which she said she acted upon but the one she initiated. Further that she was not on the ground and was back at the camp as the Chief Training Officer.
18. PW2 also confirmed that drivers are assigned vehicles depending on the work they are going to do. She also explained that being an In charge of a group and a team member absents himself, she raised an absence message through the necessary channel.
19. That the absence is raised when efforts to reach the person fail. She was not directly responsible for this information and efforts to reach him and she only acted on the information she received.
20. Further that they reside in camps when they work in training areas. She did not see any Part One Orders stating that the accused had been allocated duties that day. She only acted on information from the intake where the Appellant was supposed to be. She admitted that she did not verify the information.
21. In the Appellant’s case he was supposed to be at Mt Kenya That the witnesses would have acted on the facts if they would have realize this.
22. Pw3 Captain Bakari Maina 131453 also from the Kenya Military Academy. He was referred to the Inter Office Memo issued on 1/12/2021. He explained that it was a REJAB for the Appellant which is raised for service personnel returning from being absent without leave.
23. He stated that he knew the Appellant but by the time he was posted to the Kenya Military Academy an AWOL was already issued. Pw3 signed the REJAB notice and also stated that the Accused was reprimanded and brought to KMA by the Military police.
24. He stated during cross examination that he saw the Appellant when the accused was brought to the office by the Military police .
25. He was placed on the guard room on 28th November and Pw3 raised the REJAB on 1st December. That the days when a person is placed on the guard room are included in the number of days of absence.
26. He did not have any document for placing the Appellant in the guard room. That he raised the REJAB to the Academy Headquarters which is the headquarters involved in personnel handling AWOL. That the Appellant’s work station was Kenya Military Academy and he was supposed to be stationed at Cadet training though he could not tell the location.
27. He did not know the Appellant’s in charge during the training and also did not know where he departed to before the training. He could not tell how long the training took.
28. The operation order had a list of names of people who are supposed to move from one place to another for training or camp. PW3 had not seen such an order indicating where the Appellant was supposed to be during the period that the prosecution claimed he was absent.
29. He stated during reexamination that he did not indicate the days when the accused was in the guard, he counted the period between 6th September and 28th November . He was also not present when the Appellant was placed on the guard room.
30. Pw4 WOII Hassan Dida also posted at the Kenya Military Academy testified that he was at Larisoro Training Camp on 6/9/2021 where he was CSM of Intake 40. He had known the Appellant although he had not worked with him.
31. He stated that the motor transport HOD Sgt Kioni informed him that he was not seeing Biwott, Pw4 started reaching the Appellant through his phone but it was not going through.
32. That they took the 1st trip to the training camp earlier in the morning and were supposed to go back for the 2nd trip The Appellant came back for the 2nd trip at around 7:15-0645hrs and was assigned vehicle 00KA44G Isuzu FTS was supposed to come back for the 2nd trip.
33. Pw4 realized the Appellant was missing at around 0730hrs and after receiving this information he informed his Admin Officer. He reported to the Admin Officer that he got information from MTO Sgt Kioni that he was not seeing the driver of service vehicle 00KA44G. The Admin officer directed him to raise the absent messageof 76968 Gilbert Kipya
34. Pw4 was cross examined and he stated that he did not work with the Appellant and the Accused person was answerable to him as he dealt with Admin but he did not allocate duty to the Appellant and it was Admin officer who allocated duties. He testified that he was dealing with part of admin which was delegated to him as a junior. The orders are given to officers on duty, he did not have any document to prove that the accused was on duty at that particular time.
35. He stated that he did not see the Appellant’s name in the Part One Orders, at the time the Accused worked at the Kenya Military Unit Camp and it was not in Isiolo but Larisoro. There was nothing to show that he was supposed to be at Larisoro. Without his name in Part One Orders, there was nothing to show he was working in Larisoro.
36. That he was told by Appellant’s superior that someone tried to reach him but his phone was switched off. He did not have call logs to show the Appellant was reached, and he did not have any evidence like Call Logs to prove this fact.
37. That the Appellant made one trip from 6:00-6:15hrs which was in the morning. The others in the camp were to report at 6:00hrs in the morning, there was no document that the Appellant was supposed to report to duty at 6:00am.
38. There was also no document showing persons who were working during the previous night.
39. PW5 SSGT Kioni Muthoga engaged at the Military at Transport Battalion stated that he was at the Kenya Military Academy in the year 2021. That he was at Lorisoro Training camp on 6/9/2021. He had worked with the Appellant for one year.
40. Pw5 stated that on 6/9/2021 he was given military duty to take cadets to a military exercise with Sgt Biwott. The Appellant was given detail to return and take breakfast for the cadets but he was not found when tea break reached That he searched for the accused and could not find him; that time the vehicle was at the training camp. The vehicle was 00KA44G, Isuzu
41. He looked for him at the military tents and also tried to call him. That efforts to reach him were futile and he raised an AWOL.He reported to Sgt Major who was appointed as CSO Mr WOII Dida Pw4 who forwarded the AWOL.
42. The Appellant was on duty that day.
43. Pw5 was cross examined and stated that he did not have any document to show the Appellant was on duty .Pw5 went to join those who were in Mt Kenya .The Appellant had an Adm. Officer that he was reporting to and he was not exempted from any task. Further that when there is an operation there are no specific days for Operation Orders, it continues until the operation is over.
44. That he went to Mt Kenya for training which was for 7 days, he joined the accused who had been there for 3 days. He stayed with him for the other 4 days. PW5 did not remember the days he moved to Mt Kenya and when the Appellant reported at the place.
45. He stated that not all military work involved Part One Orders and that these are not used during military training areas. That, they break for hours during the training and the hourly rests are taken at the rest rooms.
46. Pw5 confirmed that it was not the same document that took Accused to Mount Kenya also took him there. The Documents and instructions were undertaken by the Adjutant. He confirmed he did not work with Part One Orders it was not always the part One Orders are used and were not used during training areas.
47. He confirmed that there was no document showing that the Appellant had gone missing and a document to show that he was on duty
48. Further that he tried to reach the Appellant through his phone but he did not have his phone in court. He stated that it was misplaced.
49. Pw6 SSGT John Nyambane from IMP Unit.He stated that on 12/11/2021 he was tasked to apprehend SVC No 76968 one Cpl Gilbert Biwott Kipya. He was instructed by the Commanding Officer SIU Major but he could not remember his name. He had information that the Appellant was in Nakuru , he was accompanied by his fellow worker to Nakuru. They searched places they suspected the Appellant was hiding but they he was not there. They got information that he was in Eldoret at Moiben area which was his home area.
50. They proceeded to Moiben on 28/11/2021 and with assistance of the Local Area Chief they managed to arrest the Appellant at a village called Kondapilet within Moiben
Uasin Gishu County.
51. That he was not known to the Appellant and he was given some guidelines on his physical appearance and he had seen photos. The local chief also knew him.
52. The witness identified the Appellant in court. The witness also referred to the document dated 28/11/2021 which he originated after the arrest.
53. The Appellant was arrested at around midnight at 0045hrs on 28/11/2021.They booked him in civil police at Moiben Police station and later booked out and was handled over to them. They went to 9KR in Eldoret where Pw6 also originated the incident identified earlier.
54. They placed the Appellant on close arrest pending his collection by his unit. They informed his unit that he had been placed under close arrest at 9KR.The Appellant’s Unit was to facilitate his collection. He produced the Incident Report as Exhibit 5.
55. He confirmed that he wrote his statement, he indicated his name in the statement as John Nyabue while the incident report indicated it a John Nyambane. These are his names although he did not have any document to prove this.
56. His statement did not indicate the place where the Appellant was arrested. It indicated that he was arrested in his village which was within the Appellant’s area.
57. The reason for arrest was absence from his place of work from 6/9/2021. He was given full details of the Appellant’s place of work and where he came from.
58. That the Appellant was supposed to be at Kenya Military Academy at Lanet. He did not have the occurrence book in court.
59. His colleagues did not know the Appellant. They also used a police private car and he did not have any document for allocation of the vehicle.
60. He explained the authority to arrest the Appellant was in the letter issued by the Unit to the Commanding Officer Military Police. The Commanding Officer also called him. These communications were with the Commanding Officer.
61. Pw7 SPTE IAN MWAI No 151737 attached to Signal at Moi Airbase stated that he knew the Appellant and that they were in the guard room together. That on 10/6/2022 they had gone to empty dustbins and had been given permission by Sgt Kaula, he was later asked about the Appellant but he did know his whereabouts.
62. That he did not know his whereabouts when he went back to the sleeping room although they got to the guardroom together. That he went to report to the Military Police officer when he realized he was not in the guardroom.
63. Pw7 was at the guardroom because he had a pending case before the court Martial. He was taken to the guardroom on 11/9/2021 but he was brought to Moi Airbase on 11/4/2022. That one has to be guarded to get out of the guardroom. That Sgt. Kaula was the Chief Commander on duty and permission had to be obtained from him to undertake any other duties or healthcare while in guard room. He and the Accused were in closed arrest not open arrest and stayed in guard room and left only with escort.
64. He was cross examined and he stated that the Appellant was under closed arrest and in such arrest one must have an escort every moment. He did not know the Appellant’s escort.
65. That the Appellant was not manned when he went to empty the dust bins.He came back by himself. That anyone can empty the dustbins in the guardroom although it goes by seniority.
66. PW8 105724 WOII P. Omundi a security warrant officer, he explained his duties as deploying KAF police and ensuring installation and equipment are secure.
67. He received a call on 10/6/2022 at about 1300hrs from Senior Sgt Titus Kiprono warrant officer II who informed him that the Appellant had escaped from custody. Pw8 confirmed this at the gate when it was apparent that he was missing. He later informed his senior Captain Luteipa who advised him to authorize KAF police personnel and guard personnel to see if they could find his whereabouts.
68. Pw8 and the duty officer and KAF police personnel went to where the Appellant had gone to throw the dust bins from the main guard room and realized that he had left his clothes.
69. The clothes were confirmed by the shift commander Sgt Kaula who also said that he was wearing the clothes earlier.
70. The CCTV showed that he was wearing civilian clothing, a black trouser, a sky blue short sleeved and combat trouser after he escaped. That he wore a long combat plus track suit long sleeve before he escaped and he wore a black track suit.
71. The route he used to escape was explained to the court. He said that it could be seen on the CCTV
72. In cross examination, Pw8 stated there were those who manned the gate and guarded the Guard Room and the people in Guard room and at the gate interacted. He was shown CCTV footage and he did not write that Accused escaped as shown through CCTV camera. He stated investigations begun when Accused was Corporal and had risen to Sergent and he was Warrant Class II and he was then Warrant Class I. To stay in the Mess one needed permission from the Incharge of Guard Room. The Accused came back to Guard Room by himself. He said he did not know if the matter reached the CO or not.
73. Pw9 WOII No 105727 Titus Kiprono gave details of the occurrence of 10/6/2022.He explained that he was the Senior Sergeant when the Appellant escaped. He was called by shift commander Captain Njuguna at 1330hrs and was informed that one of the prisoners identified as Sgt Biwott was not within the camp area. The Accused resided with Pw7 and another Officer from Embakasi.Pw9 conducted a search in the guardroom where the Appellant stayed, the toilets and the place he had gone to empty the dust bins. That he contacted WOII Omondi who also informed Lt Leteipa .
74. They found the Appellant’s uniform at the place he had gone to throw the garbage; the place was bushy. They also checked the CCTV and found that the Appellant had changed and walked out through the main gate. That the Appellant was supposed to be in the guardroom cells and could only leave when he went to get water empty dust bins He had emptied dustbins before and he would come back.
75. The Appellant came back on 29/6/2022 at 6 am alone and had no escort.
76. Pw9 was cross examined and said that he did not have CCTV He did not mention the fact that the Appellant had gone to change, he also did not mention the uniform He did not have evidence of the Appellant coming back on 29/6/2022 That for someone to be placed in the guardroom instructions had to be issued but there was no instruction in court.
77. That the person who was missing was Kibiwott, the Appellant was called Biwott. The witness was of the view that it was the same person. That Sgt Abraham Kaula was the Appellant’s escort and he was charged with the Appellant’s escape.
78. Pw10 No 107421 Ssgt Abraham Kaula also testified on the events of 10/6/2022. He had been posted to Kenya Airforce Police where he had worked since 2017. He stated that on 10/6/2022 he was manning the Main gate at Moi Air Base and was the shift commander. That the workforce they were few and he manned the Main gate as the leader .He was checking the vehicles passing through the gate and making sure any incidents are reported to the police .The main gate is comprised of the security area where everyone entering the gate must be searched, the pedestrian gate where people are searched and confirmation of authority to enter is done. Exit area for searching those getting out of the gate are searched.
79. That 5 people were in the guardroom, he listed them as Spte Mwai, Sgt Kipkemboi Spte Langat, Sgt Kibiwott but he could not remember the other one.
80. He had known the Appellant for 3 weeks. He did a head count and deployed his soldiers. The soldiers went for lunch and he remained behind to man the main gate. He later went for lunch when they returned, he did not find food outside and opted to take lunch where prisoner’s lunch was organized.
81. That as he was washing his plate, Spte Mwai told him that the guardroom had dirt and he started to collect the garbage and place it on buckets. The Appellant was asleep and was in full combat and Spte Langat woke him up and he put on his shoes. The Appellant and Spte Mwai went to throw the buckets.
82. That Spte Mwai came back and he asked him the whereabouts of the Appellant. Spte Mwai told him stories and he became confused and forgot that someone had not returned to the guardroom.
83. That Sgte Njunguna came and did a head count and the Appellant was not found. That they searched the Appellant within the guard room and he was not found. He testified that the Appellant’s uniform was found at the place where he had gone to throw the dust bins. That they also saw him leave through the main gate in the CCTV footage. There are many routes to exit the barracks.
84. That he was the Appellant’s escort, also that he did not have the CCTV footage in court and there was no evidence showing him leave the main gate and come back.
85. After head count he confirmed Accused was missing; He reported to Ssgt Kiprono and searched guard room and perimeter search and at the bushes and found he dumped
his service combat. They went to the CCTV and watched saw him coming out in a blue T shirt a mask on the head while talking on phone and in a black track suit trouser. He informed Ssgt Kiprono who informed OC.He was put under arrest and it is the Accused who escaped from the Guard room.
84. In cross examination Pw10 confirmed that there is a document or instructions to place the Accused in the Guard room and the records remained at the Main Gate. He was on duty that day and the Accused ‘s escort. He had no document on being Accused escort. He did not write anything about CCTV in his Statement. He did not have the CCTV that day in Court but he confirmed that he had it in his phone but he had no evidence CCTV cameras captured on 10/6/2022. He did not know the Accused person’s Commanding Officer.
85. Pw11 108621 Sergeant Kimani Njuguna stated that he was taking over duty and did a head count of the prisoners in the guardroom. That the people in the guardroom were 5 and he listed them as Spte Mwai, Sgt Kipkemboi ,Spte Langat, Sgt Kibiwott but he forgot the name one of them.
86. That one person was missing and the person was identified as Kibiwott. He said it was the same as Biwott and that the names were for same person although the Appellant’s service record did not indicate Kibiwott.
87. That they searched the guardroom and the places around it. That he and Ssgt Kaula reported the matter to their superior senior Seargent Kiprono.That they later found the Appellant’s uniform at the place where gone to throw the dust bins. The CCTV showed him wearing a black trouser, a sky blue short sleeved and combat trouser after he escaped.
88. He confirmed that the CCTV was not in court and the document placing the Appellant in the guardroom was not in court, the terms of placement were not indicated and that there was no evidence of him leaving and coming back or walking through the main gate on 29/6/2022.That he had to use the main gate to return to the guard room.
89. In cross examination Pw11 confirmed that he saw the document Placing the Accused in the guard room but he did not have the document in court. In his statement he stated the prisoner was missing and he did not see him escaping but he was missing. It was prisoners duty to offload dust bins and clean the guard room. He did not see him leaving Moi Air base Camp and he did not see him coming back.
He stated that when one is placed in the Guard room orders are issued and published to members of Armed Forces. The Gate people were not given the document showing who is/are in the Guard room. The person in charge of the Prisoners is the Shift commander. He did not have proof that the prisoner left the Camp.
In re-examination Pw11 stated that he was not involved in drafting the document that he was sent. He also would not go to the Sergeant Mess if he was supposed to be in the Guard room.
90. Pw12 No. 155670 SPTE Diana Bosibori testified that on 10/6/2022 she was deployed at 2 MB MAB detach as Duty NC at 1500 HRS, Sgt Kaula Shift Commander reported to her that Sgt Biwott was under closed arrest went missing after he was granted permission to go empty dust bins. Sgt Kaula granted permission for the accused to empty dustbins.
91. As Investigation Officer , she investigated the case involving escape from custody.Pw12 had the Abstract of Evidence Exh 1 that had history of the incident and MAB detach. She visited the guard room and established the accused had escaped and informed her senior through the chain of command who instructed her to raise the incident. The Appellant was supposed to be in the guardroom as he was court Martial trial. The trial involved court Martial malpractice.
92. She was instructed by her CO to draw the abstract her Commanding Officer Lt. Col Munene. The Appellant returned on 29/6/2022 at around 0600hrs and was not escorted.
91. Pw12 was cross examined and she stated that she was not sure whether the offence should be pardoned by the Commander. That she did not have the Appellant’s clothes before court, the clothes were his and were returned to him. The Appellant had allegedly identified as the Appellant’s camouflaged trousers and a blue jacket.
That the main gate has CCTV cameras although she did not have the footage in court. There is no evidence establishing that the Appellant was called.
92 . That the Commanding officer gives authority before a person is placed in the guard room. That if the Appellant had to seek leave it had to be from his Commanding Officer. She did not take the Appellant’s Commanding Officer’s statement.
93. The Prosecution made an application to withdraw the charges 1 and 2 and their alternative charges under Section of the Criminal Procedure Code. The application was
allowed and the prosecution closed its case.
94. The Court Martial delivered its ruling on case to answer on 12/4/2024. The Appellant was placed on his defense.
THE DEFENCE CASE.
96. The defence counsel raised a preliminar
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THE CHARGES
2. The Appellant was arraigned for plea on 30/5/2022 and 14/10/2022 when the amended charge sheet was read to him as follows:-
1. Conduct to prejudice the good order and service discipline contrary to Section 121 of the Kenya Defence Forces Act .
On diverse dates in the month of January 2021 within Eldoret town in pretext that he was in a position to recruit Mr Elphas Kipkorir Chebii of National ID Card No 32397680 into the Kenya Defence Forces solicited and received Ksh 300,000/= in two tranches Ksh 280,000/= cash from Mrs Emily Jebet Chebon of ID 22063131 and Ksh 20,000/= from Mpesa account no 0725101185 Gladys Cherono ID 33982245 at the request of Mrs Emily Jebet Chebon on false pretence he was in a position to recruit Mr Elphas Kipkorir Chebii of No 32397680 into the Kenya Defence Forces an act he knew or ought to have known constitutes an offence .
3. ALTERNATIVE CHARGE : Committing a Civil Offence contrary to Section 133 (1)(b) of the Kenya Defence Forces Act that is Obtaining Money by false pretenses contrary to Section 313 of the Penal Code, particulars of the charges are that :
On diverse dates in the month of January 2021 within Eldoret town with intent to defraud obtained Ksh 300,000 in two tranches, Ksh 280,000/= cash from Mrs Emily Jebet Chebon and Ksh 20,000/= Mpesa from Gladys Cherono on false pretense he was in a position to recruit Elphas Kikorir Chebii into the Kenya Defence Forces a fact he knew or ought to have known to be false.
4. Conduct to prejudice the good order and service discipline contrary to Section 121 of the Kenya Defence Forces Act
On diverse dates in the month of January a 2021 and April 2021 within Eldoret town in pretext that he was in a position to recruit Sheila Jebiwott of National ID Card No 37558513 into the Kenya Defence Forces solicited and received Ksh 331,500/= in two tranches Ksh 291,000/= cash from Mrs Emily Jebet Chebon
of ID 22063131 and Ksh 40,000/= from Mpesa account no 0725101185 Gladys Cherono ID 33982245 at the request of Mrs Emily Jebet Chebon on false pretence he was in a position to recruit Mr Elphas Kipkorir Chebii of No 32397680 into the Kenya Defence Forces an act he knew or ought to have known constitutes an offence .
5. ALTERNATIVE CHARGE : The Appellant was charged with the civil offence of Obtaining Money on False pretence under Section 313 of the Penal Code ., on diverse dates in January and April 2021 with intent to defraud the Appellant obtained Ksh 331,500/= from Emily Jebet Chebon and Gladys Cherono on false pretense that he was in a position to recruit Sheila Jebiwott an act he knew or ought to have known to constitute an offence .
6. Absence without leave contrary to Section 75(1) as read with Section 75(2) of the Kenya Defence Forces Act .
The particulars of the charges were that on 6/9/2021 at 08000hrs the Appellant absented himself without leave until he was apprehended by military police personnel on 28/11/2021 total time 83 days at about 0045hrs an act he knew or ought to have known to be false.
7. Escape from Lawful custody contrary to Section 105 of the Kenya Defence Forces Act .
Particulars of the charges were that :
On 10/6/2022 at or about 1310hrs the Appellant escaped lawful custody while being held at Moi Airbase main gate guardroom during closed arrest awaiting trial by court Martial and remained at large until 29/6/2022 when he presented himself back at Moi Airbase main gate and was escorted to Moi Airbase main gate guardroom, an act he knew ought to have known to have constituted an offence.
The Appellant pleaded not guilty to all the charges.
The Prosecution called 12 witnesses in proof of the charges.
The Prosecution later withdrew the charges on Count 1 and Count 2 under Section 87A of the Criminal Procedure Code.
THE EVIDENCE AT TRIAL.
8. PW1 Ambrose Munyoki from the Law Enforcement Liasion Office Security Department of Safaricom PLC as Data Analyst he referred to extract copies of Mpesa Statements of mobile No 0725101185 and 0722880006.The numbers were registered in the Appellant’s name Gilbert Biwott Kipya of ID registration number 25171038. He was served with Court order to process the details sought. He extracted the statement using a computer and a printer and also produced the Certificate of electronic evidence under Section 106 and 65 of the Evidence Act. He produced the Statements Orders & Certificate as exhibits.
9. In cross examination by Defense Counsel, he stated that Safaricom has records of ID Card numbers and names of subscribers and the ID Card is submitted during registration. A photo is also taken and is keyed and kept as part of records. He confirmed that the certificate of electronic evidence does not bear the letter head of Safaricom.He also confirmed that he did not come with any document that confirms that the phone number 0725101185 belongs to the accused. That Safaricom PLC is able to tell the location of any line at any given time.
10. The witness was stood down after the defence counsel indicated that some pages were missing on the Mpesa statement.
11. Pw2 Major Naomi Nyakerario Ondieki serving at officer cadets as an adjutant and stationed at Kenya Military Academy.
12. She stated that on 6/9/2021 she received information from Cadet Intake 40 who were on field training exercise at Mt Kenya. One driver attached to the training was absent. The driver was the accused who was also pointed out by the witness before the court.
13. After receiving the message she raised the AWOL message and initiated absent message to the Academy headquarters. PW2 learnt about the accused absence through a letter from the Cadet intake which she acted on.
14. PW2 referred to the Cadet Intake document which was issued after 7 days when a person has an AWOL and has not returned back to duty. The document report included service member and also restricted payment. It was used to restrict the Appellant’s salary payment. The Abseight document exhibit 5 in the Abstract was sent after 7 days after a person had an AWOL.
15. In cross examination by Defense Counsel, PW2 stated that people work in shifts and there is also a document which confirms that the Accused was supposed to be on duty on a particular day but it was not availed /produced in proceedings. There are also documents for the shifts and specific time. PW2 stated that Accused was supposed to be in Mt Kenya not Isiolo.
16. PW2 did not have any documents confirming the Appellant was supposed to be on duty at that time. She did not have documents indicating he was assigned to be at Mt Kenya that day.PW2 stated that she was acting on a letter that she received from the Commanding Officer and and acting on the information received initiated the letter to the Military Academy headquarters.
17. PW2 acted on the letter which was from the Command Wing of Cadet Intake KMA Forces, she did not have this letter which she said she acted upon but the one she initiated. Further that she was not on the ground and was back at the camp as the Chief Training Officer.
18. PW2 also confirmed that drivers are assigned vehicles depending on the work they are going to do. She also explained that being an In charge of a group and a team member absents himself, she raised an absence message through the necessary channel.
19. That the absence is raised when efforts to reach the person fail. She was not directly responsible for this information and efforts to reach him and she only acted on the information she received.
20. Further that they reside in camps when they work in training areas. She did not see any Part One Orders stating that the accused had been allocated duties that day. She only acted on information from the intake where the Appellant was supposed to be. She admitted that she did not verify the information.
21. In the Appellant’s case he was supposed to be at Mt Kenya That the witnesses would have acted on the facts if they would have realize this.
22. Pw3 Captain Bakari Maina 131453 also from the Kenya Military Academy. He was referred to the Inter Office Memo issued on 1/12/2021. He explained that it was a REJAB for the Appellant which is raised for service personnel returning from being absent without leave.
23. He stated that he knew the Appellant but by the time he was posted to the Kenya Military Academy an AWOL was already issued. Pw3 signed the REJAB notice and also stated that the Accused was reprimanded and brought to KMA by the Military police.
24. He stated during cross examination that he saw the Appellant when the accused was brought to the office by the Military police .
25. He was placed on the guard room on 28th November and Pw3 raised the REJAB on 1st December. That the days when a person is placed on the guard room are included in the number of days of absence.
26. He did not have any document for placing the Appellant in the guard room. That he raised the REJAB to the Academy Headquarters which is the headquarters involved in personnel handling AWOL. That the Appellant’s work station was Kenya Military Academy and he was supposed to be stationed at Cadet training though he could not tell the location.
27. He did not know the Appellant’s in charge during the training and also did not know where he departed to before the training. He could not tell how long the training took.
28. The operation order had a list of names of people who are supposed to move from one place to another for training or camp. PW3 had not seen such an order indicating where the Appellant was supposed to be during the period that the prosecution claimed he was absent.
29. He stated during reexamination that he did not indicate the days when the accused was in the guard, he counted the period between 6th September and 28th November . He was also not present when the Appellant was placed on the guard room.
30. Pw4 WOII Hassan Dida also posted at the Kenya Military Academy testified that he was at Larisoro Training Camp on 6/9/2021 where he was CSM of Intake 40. He had known the Appellant although he had not worked with him.
31. He stated that the motor transport HOD Sgt Kioni informed him that he was not seeing Biwott, Pw4 started reaching the Appellant through his phone but it was not going through.
32. That they took the 1st trip to the training camp earlier in the morning and were supposed to go back for the 2nd trip The Appellant came back for the 2nd trip at around 7:15-0645hrs and was assigned vehicle 00KA44G Isuzu FTS was supposed to come back for the 2nd trip.
33. Pw4 realized the Appellant was missing at around 0730hrs and after receiving this information he informed his Admin Officer. He reported to the Admin Officer that he got information from MTO Sgt Kioni that he was not seeing the driver of service vehicle 00KA44G. The Admin officer directed him to raise the absent messageof 76968 Gilbert Kipya
34. Pw4 was cross examined and he stated that he did not work with the Appellant and the Accused person was answerable to him as he dealt with Admin but he did not allocate duty to the Appellant and it was Admin officer who allocated duties. He testified that he was dealing with part of admin which was delegated to him as a junior. The orders are given to officers on duty, he did not have any document to prove that the accused was on duty at that particular time.
35. He stated that he did not see the Appellant’s name in the Part One Orders, at the time the Accused worked at the Kenya Military Unit Camp and it was not in Isiolo but Larisoro. There was nothing to show that he was supposed to be at Larisoro. Without his name in Part One Orders, there was nothing to show he was working in Larisoro.
36. That he was told by Appellant’s superior that someone tried to reach him but his phone was switched off. He did not have call logs to show the Appellant was reached, and he did not have any evidence like Call Logs to prove this fact.
37. That the Appellant made one trip from 6:00-6:15hrs which was in the morning. The others in the camp were to report at 6:00hrs in the morning, there was no document that the Appellant was supposed to report to duty at 6:00am.
38. There was also no document showing persons who were working during the previous night.
39. PW5 SSGT Kioni Muthoga engaged at the Military at Transport Battalion stated that he was at the Kenya Military Academy in the year 2021. That he was at Lorisoro Training camp on 6/9/2021. He had worked with the Appellant for one year.
40. Pw5 stated that on 6/9/2021 he was given military duty to take cadets to a military exercise with Sgt Biwott. The Appellant was given detail to return and take breakfast for the cadets but he was not found when tea break reached That he searched for the accused and could not find him; that time the vehicle was at the training camp. The vehicle was 00KA44G, Isuzu
41. He looked for him at the military tents and also tried to call him. That efforts to reach him were futile and he raised an AWOL.He reported to Sgt Major who was appointed as CSO Mr WOII Dida Pw4 who forwarded the AWOL.
42. The Appellant was on duty that day.
43. Pw5 was cross examined and stated that he did not have any document to show the Appellant was on duty .Pw5 went to join those who were in Mt Kenya .The Appellant had an Adm. Officer that he was reporting to and he was not exempted from any task. Further that when there is an operation there are no specific days for Operation Orders, it continues until the operation is over.
44. That he went to Mt Kenya for training which was for 7 days, he joined the accused who had been there for 3 days. He stayed with him for the other 4 days. PW5 did not remember the days he moved to Mt Kenya and when the Appellant reported at the place.
45. He stated that not all military work involved Part One Orders and that these are not used during military training areas. That, they break for hours during the training and the hourly rests are taken at the rest rooms.
46. Pw5 confirmed that it was not the same document that took Accused to Mount Kenya also took him there. The Documents and instructions were undertaken by the Adjutant. He confirmed he did not work with Part One Orders it was not always the part One Orders are used and were not used during training areas.
47. He confirmed that there was no document showing that the Appellant had gone missing and a document to show that he was on duty
48. Further that he tried to reach the Appellant through his phone but he did not have his phone in court. He stated that it was misplaced.
49. Pw6 SSGT John Nyambane from IMP Unit.He stated that on 12/11/2021 he was tasked to apprehend SVC No 76968 one Cpl Gilbert Biwott Kipya. He was instructed by the Commanding Officer SIU Major but he could not remember his name. He had information that the Appellant was in Nakuru , he was accompanied by his fellow worker to Nakuru. They searched places they suspected the Appellant was hiding but they he was not there. They got information that he was in Eldoret at Moiben area which was his home area.
50. They proceeded to Moiben on 28/11/2021 and with assistance of the Local Area Chief they managed to arrest the Appellant at a village called Kondapilet within Moiben
Uasin Gishu County.
51. That he was not known to the Appellant and he was given some guidelines on his physical appearance and he had seen photos. The local chief also knew him.
52. The witness identified the Appellant in court. The witness also referred to the document dated 28/11/2021 which he originated after the arrest.
53. The Appellant was arrested at around midnight at 0045hrs on 28/11/2021.They booked him in civil police at Moiben Police station and later booked out and was handled over to them. They went to 9KR in Eldoret where Pw6 also originated the incident identified earlier.
54. They placed the Appellant on close arrest pending his collection by his unit. They informed his unit that he had been placed under close arrest at 9KR.The Appellant’s Unit was to facilitate his collection. He produced the Incident Report as Exhibit 5.
55. He confirmed that he wrote his statement, he indicated his name in the statement as John Nyabue while the incident report indicated it a John Nyambane. These are his names although he did not have any document to prove this.
56. His statement did not indicate the place where the Appellant was arrested. It indicated that he was arrested in his village which was within the Appellant’s area.
57. The reason for arrest was absence from his place of work from 6/9/2021. He was given full details of the Appellant’s place of work and where he came from.
58. That the Appellant was supposed to be at Kenya Military Academy at Lanet. He did not have the occurrence book in court.
59. His colleagues did not know the Appellant. They also used a police private car and he did not have any document for allocation of the vehicle.
60. He explained the authority to arrest the Appellant was in the letter issued by the Unit to the Commanding Officer Military Police. The Commanding Officer also called him. These communications were with the Commanding Officer.
61. Pw7 SPTE IAN MWAI No 151737 attached to Signal at Moi Airbase stated that he knew the Appellant and that they were in the guard room together. That on 10/6/2022 they had gone to empty dustbins and had been given permission by Sgt Kaula, he was later asked about the Appellant but he did know his whereabouts.
62. That he did not know his whereabouts when he went back to the sleeping room although they got to the guardroom together. That he went to report to the Military Police officer when he realized he was not in the guardroom.
63. Pw7 was at the guardroom because he had a pending case before the court Martial. He was taken to the guardroom on 11/9/2021 but he was brought to Moi Airbase on 11/4/2022. That one has to be guarded to get out of the guardroom. That Sgt. Kaula was the Chief Commander on duty and permission had to be obtained from him to undertake any other duties or healthcare while in guard room. He and the Accused were in closed arrest not open arrest and stayed in guard room and left only with escort.
64. He was cross examined and he stated that the Appellant was under closed arrest and in such arrest one must have an escort every moment. He did not know the Appellant’s escort.
65. That the Appellant was not manned when he went to empty the dust bins.He came back by himself. That anyone can empty the dustbins in the guardroom although it goes by seniority.
66. PW8 105724 WOII P. Omundi a security warrant officer, he explained his duties as deploying KAF police and ensuring installation and equipment are secure.
67. He received a call on 10/6/2022 at about 1300hrs from Senior Sgt Titus Kiprono warrant officer II who informed him that the Appellant had escaped from custody. Pw8 confirmed this at the gate when it was apparent that he was missing. He later informed his senior Captain Luteipa who advised him to authorize KAF police personnel and guard personnel to see if they could find his whereabouts.
68. Pw8 and the duty officer and KAF police personnel went to where the Appellant had gone to throw the dust bins from the main guard room and realized that he had left his clothes.
69. The clothes were confirmed by the shift commander Sgt Kaula who also said that he was wearing the clothes earlier.
70. The CCTV showed that he was wearing civilian clothing, a black trouser, a sky blue short sleeved and combat trouser after he escaped. That he wore a long combat plus track suit long sleeve before he escaped and he wore a black track suit.
71. The route he used to escape was explained to the court. He said that it could be seen on the CCTV
72. In cross examination, Pw8 stated there were those who manned the gate and guarded the Guard Room and the people in Guard room and at the gate interacted. He was shown CCTV footage and he did not write that Accused escaped as shown through CCTV camera. He stated investigations begun when Accused was Corporal and had risen to Sergent and he was Warrant Class II and he was then Warrant Class I. To stay in the Mess one needed permission from the Incharge of Guard Room. The Accused came back to Guard Room by himself. He said he did not know if the matter reached the CO or not.
73. Pw9 WOII No 105727 Titus Kiprono gave details of the occurrence of 10/6/2022.He explained that he was the Senior Sergeant when the Appellant escaped. He was called by shift commander Captain Njuguna at 1330hrs and was informed that one of the prisoners identified as Sgt Biwott was not within the camp area. The Accused resided with Pw7 and another Officer from Embakasi.Pw9 conducted a search in the guardroom where the Appellant stayed, the toilets and the place he had gone to empty the dust bins. That he contacted WOII Omondi who also informed Lt Leteipa .
74. They found the Appellant’s uniform at the place he had gone to throw the garbage; the place was bushy. They also checked the CCTV and found that the Appellant had changed and walked out through the main gate. That the Appellant was supposed to be in the guardroom cells and could only leave when he went to get water empty dust bins He had emptied dustbins before and he would come back.
75. The Appellant came back on 29/6/2022 at 6 am alone and had no escort.
76. Pw9 was cross examined and said that he did not have CCTV He did not mention the fact that the Appellant had gone to change, he also did not mention the uniform He did not have evidence of the Appellant coming back on 29/6/2022 That for someone to be placed in the guardroom instructions had to be issued but there was no instruction in court.
77. That the person who was missing was Kibiwott, the Appellant was called Biwott. The witness was of the view that it was the same person. That Sgt Abraham Kaula was the Appellant’s escort and he was charged with the Appellant’s escape.
78. Pw10 No 107421 Ssgt Abraham Kaula also testified on the events of 10/6/2022. He had been posted to Kenya Airforce Police where he had worked since 2017. He stated that on 10/6/2022 he was manning the Main gate at Moi Air Base and was the shift commander. That the workforce they were few and he manned the Main gate as the leader .He was checking the vehicles passing through the gate and making sure any incidents are reported to the police .The main gate is comprised of the security area where everyone entering the gate must be searched, the pedestrian gate where people are searched and confirmation of authority to enter is done. Exit area for searching those getting out of the gate are searched.
79. That 5 people were in the guardroom, he listed them as Spte Mwai, Sgt Kipkemboi Spte Langat, Sgt Kibiwott but he could not remember the other one.
80. He had known the Appellant for 3 weeks. He did a head count and deployed his soldiers. The soldiers went for lunch and he remained behind to man the main gate. He later went for lunch when they returned, he did not find food outside and opted to take lunch where prisoner’s lunch was organized.
81. That as he was washing his plate, Spte Mwai told him that the guardroom had dirt and he started to collect the garbage and place it on buckets. The Appellant was asleep and was in full combat and Spte Langat woke him up and he put on his shoes. The Appellant and Spte Mwai went to throw the buckets.
82. That Spte Mwai came back and he asked him the whereabouts of the Appellant. Spte Mwai told him stories and he became confused and forgot that someone had not returned to the guardroom.
83. That Sgte Njunguna came and did a head count and the Appellant was not found. That they searched the Appellant within the guard room and he was not found. He testified that the Appellant’s uniform was found at the place where he had gone to throw the dust bins. That they also saw him leave through the main gate in the CCTV footage. There are many routes to exit the barracks.
84. That he was the Appellant’s escort, also that he did not have the CCTV footage in court and there was no evidence showing him leave the main gate and come back.
85. After head count he confirmed Accused was missing; He reported to Ssgt Kiprono and searched guard room and perimeter search and at the bushes and found he dumped
his service combat. They went to the CCTV and watched saw him coming out in a blue T shirt a mask on the head while talking on phone and in a black track suit trouser. He informed Ssgt Kiprono who informed OC.He was put under arrest and it is the Accused who escaped from the Guard room.
84. In cross examination Pw10 confirmed that there is a document or instructions to place the Accused in the Guard room and the records remained at the Main Gate. He was on duty that day and the Accused ‘s escort. He had no document on being Accused escort. He did not write anything about CCTV in his Statement. He did not have the CCTV that day in Court but he confirmed that he had it in his phone but he had no evidence CCTV cameras captured on 10/6/2022. He did not know the Accused person’s Commanding Officer.
85. Pw11 108621 Sergeant Kimani Njuguna stated that he was taking over duty and did a head count of the prisoners in the guardroom. That the people in the guardroom were 5 and he listed them as Spte Mwai, Sgt Kipkemboi ,Spte Langat, Sgt Kibiwott but he forgot the name one of them.
86. That one person was missing and the person was identified as Kibiwott. He said it was the same as Biwott and that the names were for same person although the Appellant’s service record did not indicate Kibiwott.
87. That they searched the guardroom and the places around it. That he and Ssgt Kaula reported the matter to their superior senior Seargent Kiprono.That they later found the Appellant’s uniform at the place where gone to throw the dust bins. The CCTV showed him wearing a black trouser, a sky blue short sleeved and combat trouser after he escaped.
88. He confirmed that the CCTV was not in court and the document placing the Appellant in the guardroom was not in court, the terms of placement were not indicated and that there was no evidence of him leaving and coming back or walking through the main gate on 29/6/2022.That he had to use the main gate to return to the guard room.
89. In cross examination Pw11 confirmed that he saw the document Placing the Accused in the guard room but he did not have the document in court. In his statement he stated the prisoner was missing and he did not see him escaping but he was missing. It was prisoners duty to offload dust bins and clean the guard room. He did not see him leaving Moi Air base Camp and he did not see him coming back.
He stated that when one is placed in the Guard room orders are issued and published to members of Armed Forces. The Gate people were not given the document showing who is/are in the Guard room. The person in charge of the Prisoners is the Shift commander. He did not have proof that the prisoner left the Camp.
In re-examination Pw11 stated that he was not involved in drafting the document that he was sent. He also would not go to the Sergeant Mess if he was supposed to be in the Guard room.
90. Pw12 No. 155670 SPTE Diana Bosibori testified that on 10/6/2022 she was deployed at 2 MB MAB detach as Duty NC at 1500 HRS, Sgt Kaula Shift Commander reported to her that Sgt Biwott was under closed arrest went missing after he was granted permission to go empty dust bins. Sgt Kaula granted permission for the accused to empty dustbins.
91. As Investigation Officer , she investigated the case involving escape from custody.Pw12 had the Abstract of Evidence Exh 1 that had history of the incident and MAB detach. She visited the guard room and established the accused had escaped and informed her senior through the chain of command who instructed her to raise the incident. The Appellant was supposed to be in the guardroom as he was court Martial trial. The trial involved court Martial malpractice.
92. She was instructed by her CO to draw the abstract her Commanding Officer Lt. Col Munene. The Appellant returned on 29/6/2022 at around 0600hrs and was not escorted.
91. Pw12 was cross examined and she stated that she was not sure whether the offence should be pardoned by the Commander. That she did not have the Appellant’s clothes before court, the clothes were his and were returned to him. The Appellant had allegedly identified as the Appellant’s camouflaged trousers and a blue jacket.
That the main gate has CCTV cameras although she did not have the footage in court. There is no evidence establishing that the Appellant was called.
92 . That the Commanding officer gives authority before a person is placed in the guard room. That if the Appellant had to seek leave it had to be from his Commanding Officer. She did not take the Appellant’s Commanding Officer’s statement.
93. The Prosecution made an application to withdraw the charges 1 and 2 and their alternative charges under Section of the Criminal Procedure Code. The application was
allowed and the prosecution closed its case.
94. The Court Martial delivered its ruling on case to answer on 12/4/2024. The Appellant was placed on his defense.
THE DEFENCE CASE.
96. The defence counsel raised a preliminar
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