(As consolidated vide the ruling delivered in HCCR MiSC Appl NO. E128/2025 Mombasa dated 22 nd May 2025 and delivered HCCRA E172 OF 2024)
1. JEFFREY OKURI PEPELA……………….…………....Criminal Appeal No.153 of 2014
2. GABRIEL KIRIGHA CHAWANA ………………….……..Criminal Appeal No.4 of 2015
3. REID NYAMWEYA………………………….....…….Criminal Appeal No.169 of 2014
4. SAMUEL KIMANI ONESMUS………………….............Criminal Appeal No.5 of 2015
5. JAPHETH MURIITHI…………………………..…….Criminal Appeal No.184 of 2014
6. ASHFORD CHABARI………………………………….Criminal Appeal No.13 of 2015
7. POLYCARP NYAIRO…………………………..............Criminal Appeal No.19 of 2015
8. AGGREY LANOGWA…………………………………Criminal Appeal No.18 of 2015
9. EDWARD ODANGA…………………………….…….Criminal Appeal No.22 of 2015
10. PAUL GICHINI ………………………………...……....Criminal Appeal No.7 of 2015
11. ROMANO NTONGONDU……………….…………..Criminal Appeal No.175 of 2014
12. LEORNARD KIGHOMBE……………...……………..Criminal Appeal No.174 of 2014
13. ALFRED KETOLE…………………………………….Criminal Appeal No.173 of 2014
14. JONATHAN MANKO MURIMI………………………....Criminal Appeal No.8 of 2015
15. GEORGE NGÁNGÁ ……………………….……….…..Criminal Appeal No.9 of 2015
16. MOSES BOLO………………………………………...Criminal Appeal No.10 of 2015
17. ZECHARIAH OICHOE ………………………………….Criminal Appeal No.2 of 2015
18. ALBERT MUOKI MWOLOLO …………………………..Criminal Appeal No.3 of 2015
19. VICTOR NABWERA……………….……………………Criminal Appeal No.7 of 2015
20. SOUD MOHAMED OMAR ……………………………..Criminal Appeal No.6 of 2015
21. JOHN MUTUA MWEWA…………………………….Criminal Appeal No.168 of 2014
22. MOSES SIMIYU NYONGESA………………….……...Criminal Appeal No.171 of 2014
23. GEORGE MUTABARI……………………...…………Criminal Appeal No.176 of 2014
24. SAMUEL MAINGI…………………………...……….Criminal Appeal No.169 of 2014
25. SIMON NJOROGE MBUGUA………………………...Criminal Appeal No.172 of 2014
(Being the twenty-five appeals remitted for rehearing by the Court of Appeal in Republic v Pepela & 24 others (Criminal Appeal Nos. 64 & 66–89 of 2016 (Consolidated)) [2024] KECA 204 (KLR))
(Arising from the convictions and sentences of the Court Martial sitting at Mtongwe Naval Base, Mombasa, delivered on diverse dates)
A. INTRODUCTION
1. The Appellants, all former servicemen of the Kenya Navy, were convicted by the Court Martial for the offence of desertion contrary to section 74(1)(a) as read with section 74(3)(a)(i) of the Kenya Defence Forces Act, 2012, and were, on diverse dates, sentenced to life imprisonment.
2. Aggrieved by those decisions, each Appellant lodged an individual appeal to this Court. On 21st August 2015, by a single consolidated judgment, this Court (Muya J) found that what had been proved was the lesser offence of absence without leave contrary to section 75 of the Act, which carries a maximum sentence of two years. The convictions for desertion were accordingly set aside and the lesser offence substituted, with the period already spent in custody being deemed sufficient punishment.
3. Dissatisfied with that decision, the Respondent appealed to the Court of Appeal. By its judgment in Republic v Pepela & 24 others (Criminal Appeal Nos. 64 & 66–89 of 2016 (Consolidated)) [2024] KECA 204 (KLR), delivered on 1st March 2024, the Court of Appeal declared the consolidated judgment a nullity on the ground that the first appellate court had failed to re-evaluate and determine each appeal separately. The appeals were remitted to this Court for rehearing by another Judge, with a direction that the matter be expedited and determined on a priority basis, having regard to the considerable period that had elapsed.
4. It is upon that remission that the twenty-five appeals now come before me for fresh determination.
Consolidation of the appeals
5. At the preliminary stage of the rehearing, this Court dealt with applications concerning the release of the Appellants on bail or bond pending the hearing of their appeals. The Respondent thereafter applied for the twenty-five appeals to be consolidated for purposes of hearing and determination. The application was considered in the presence of all the parties, and the Appellants, the Respondent and the Court were in agreement that consolidation was the most prudent and convenient course for the disposal of the matters.
6. I consider it necessary to address this matter because consolidation subsequently featured as one of the complaints advanced by the Respondent before the Court of Appeal. The record, however, is clear that consolidation was sought by the Respondent itself before this Court , and was adopted with the concurrence of all the parties and the Court. It was considered the appropriate course having regard to the common questions of law, the substantial overlap in the evidence, the common witnesses and the fact that the appeals arose from proceedings before the same Court Martial.
7. The order of consolidation did not, however, merge the twenty-five appeals into one appeal or dispense with the obligation to consider the circumstances of each Appellant separately. Consolidation is a procedural device for convenience and efficient administration of justice. It does not extinguish the distinct identity of the individual appeals.
8. It follows that the fact that the appeals were heard and considered together cannot properly be understood as relieving the first appellate court of the duty to examine the evidence relating to each Appellant. Each conviction remained an individual conviction. Each Appellant was entitled to a determination based upon the evidence tendered in his own case.
9. It is in that context that the decision of the Court of Appeal must be understood. The vice identified by that Court was not that the appeals had been consolidated as such. Rather, it was that, notwithstanding the consolidation, the first appellate court had failed to undertake the requisite individual evaluation and determination of the twenty-five appeals.
10. The present rehearing therefore proceeds on that basis. The common questions of law and the common evidence may properly be considered together where appropriate, but the Court shall thereafter return to the evidence and circumstances peculiar to each Appellant and make an individual determination in respect of each appeal.
B. GROUNDS OF APPEAL
11. Upon a perusal of the twenty-five petitions of appeal, the grounds raised are substantially common and may conveniently be condensed into complaints that the trial court erred in law and in fact in:
(a) failing to appreciate that there was no substantive holder of the office of the Director of Military Prosecutions as established under section 213 of the Kenya Defence Forces Act;
(b) failing to appreciate that the prosecution was conducted by legal officers not mandated by the Act;
(c) applying the Kenya Defence Forces Act to conduct alleged to have occurred when the Armed Forces Act was still in force;
(d) convicting the Appellants upon defective charges and upon contradictory and inconsistent evidence;
(e) treating desertion as an absolute or strict-liability offence without considering the constituent elements of the particular statutory provision;
(f) admitting the prosecution's secondary evidence while declining documents tendered by the defence, notwithstanding a notice to produce;
(g) upholding convictions notwithstanding that the prosecution had not proved its case beyond reasonable doubt; and
(h) violating the Appellants' constitutional and human rights before and during the trial.
12. Some of these grounds raise questions common to all the appeals. Others arise only in relation to particular Appellants. The Court will therefore deal first with the common questions of law and thereafter consider the evidence and circumstances peculiar to each Appellant.
C. BACKGROUND
13. The Appellants were servicemen in the Kenya Navy. At the time material to the allegations against them, their service was governed by the Armed Forces Act, Cap. 199, which was subsequently repealed and replaced by the Kenya Defence Forces Act, No. 25 of 2012.
14. Between 2007 and 2008, the Appellants severally and independently sought to terminate or otherwise regularise their service. The circumstances were not identical. Some made applications for discharge; one was a commissioned officer who tendered his resignation; in some cases applications were expressly declined; and in others there was no communicated response before the Appellant left the service establishment.
15. The evidence also disclosed that, in the course of the administrative processes, some Appellants surrendered military stores in their possession and were issued with clearance forms which they completed and presented to the relevant authorities.
16. The Appellants subsequently left their respective places of service and remained away for prolonged periods. In early 2014, some were arrested after responding to requests by the military to present themselves at their former bases, while others had rejoined the service through a program styled “REJAB” and were thereafter arrested and placed under close arrest.
17. They were subsequently charged before the Court Martial with desertion and, upon conviction, sentenced to life imprisonment. It is those convictions and sentences which are the subject of the present appeals.
D. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT
18. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the entire evidence on record and to draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify.
19. In Okeno v Republic [1972] EA 32, the predecessor of the Court of Appeal held that an appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
20. That principle was reaffirmed in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Kiilu & another v Republic [2005] KECA 335 (KLR). The appellate court must reconsider and evaluate the evidence itself and draw its own conclusions, while making allowance for the fact that it did not have the advantage of seeing and hearing the witnesses.
21. The Court is, however, reminded by Peters v Sunday Post Ltd [1958] EA 424 that an appellate court should exercise caution in interfering with findings based upon the credibility of witnesses whom the trial court had the advantage of seeing and hearing.
22. The appellate jurisdiction applicable to these appeals is also informed by section 188(1) of the Kenya Defence Forces Act, which empowers the High Court to allow an appeal where the conviction is unreasonable, cannot be supported having regard to the evidence, is founded upon a wrong decision on a question of law, or is attended by a miscarriage of justice.
23. In the present rehearing, these principles assume particular importance. The Court of Appeal did not remit the appeals for a general reconsideration divorced from the individual records. It did so because the twenty-five appeals had not been separately evaluated and determined. I must therefore examine the evidence relating to each Appellant independently, even where the governing legal principles and portions of the evidence are common.
24. The common evidence will consequently be considered once where appropriate. The individual evidence, the circumstances surrounding each Appellant's departure, the status of any application for discharge or resignation, the evidence concerning absence and the applicable statutory ingredients will thereafter be considered separately.
E. THE QUESTIONS ARISING FOR DETERMINATION
25. From the petitions of appeal, the record of the Court Martial, the written submissions and the oral arguments presented before this Court, the following principal questions arise:
(a) What was the applicable substantive legal regime governing the alleged acts of desertion committed in 2007 and 2008, and what was the effect of sections 309, 310 and 311 of the Kenya Defence Forces Act, 2012?
(b) What was the legal character of the offence of desertion under the law applicable at the material time? In particular, was the relevant statutory limb an absolute or strict-liability offence, and what ingredients was the prosecution required to prove?
(c) Whether the prosecution was properly constituted under sections 213 and 214 of the Kenya Defence Forces Act and, in that regard, what is the effect of the decisions in Kamau v Director of Military Prosecution & another and Samuel Sabuni & 2 others v Court Martial & 8 others .
(d) Whether the Appellants' applications for discharge, the 1st Appellant's resignation, surrender of military stores and completion of clearance forms had any legal or evidential effect upon the allegation of desertion.
(e) Whether the alleged failure to communicate decisions on applications for discharge within the period contended by the Appellants had any legal effect under the law applicable at the material time.
(f) Whether the prolonged period between the Appellants' departure, their arrest and their trial violated their constitutional rights, including the right to a fair trial within a reasonable time.
(g) Whether any limitation of the Appellants' constitutional rights was authorised by law and capable of justification under Article 24, bearing in mind the rights declared non-derogable under Article 25.
(h) Whether the Appellants were on active service or under orders for active service and the legal consequence thereof.
(i) Whether the Court Martial was properly constituted and whether its findings were legally sufficient having regard to the law governing Court Martial proceedings at the material time.
(j) Whether the prosecution proved the offence charged beyond reasonable doubt against each Appellant.
(k) If the convictions cannot stand, what orders ought properly to follow in each appeal.
F. THE APPLICABLE LEGAL REGIME
The law in force when the alleged conduct occurred
26. I begin with the legal regime applicable to the alleged conduct. This is not a matter of nomenclature. It goes to the foundation of the criminal charges.
27. The alleged acts of desertion occurred in 2007 and 2008. At that time, the governing legislation was the Armed Forces Act, Cap. 199 . The Kenya Defence Forces Act, No. 25 of 2012, had not yet been enacted or commenced.
28. Section 31 of the Armed Forces Act dealt with desertion. It identified different circumstances in which a person subject to the Act committed desertion, including circumstances involving an intention to remain permanently absent and, separately, absence without leave for a continuous period exceeding ninety days.
29. The Kenya Defence Forces Act was subsequently enacted and commenced on 17th September 2012. Section 309 repealed the Armed Forces Act. Section 310 contained transitional and savings provisions, while section 311 dealt with persons who were serving immediately before commencement of the new Act.
Section 310 and the repeal of the Armed Forces Act
30. The existence of those transitional provisions is important. The Court cannot simply ignore the 2012 legislation on the basis that the alleged conduct predates it. Equally, the Court cannot assume that the new Act retrospectively governed criminal conduct occurring five years earlier. The two propositions must be kept distinct.
31. Section 310 begins with the words “Notwithstanding section 309” and makes provision for the transition from the Armed Forces Act to the Kenya Defence Forces Act. Among other matters, references to the repealed Act in written law are to be construed with reference to the new Act, and existing regulations, directives, orders, instructions and other administrative measures made under the repealed Act and still in force immediately before commencement are preserved subject to the statutory qualifications.
32. Section 311, separately, provides for the continued service status of persons who were serving immediately before commencement of the new Act.
33. Those provisions are important for the continued administration and regulation of the Defence Forces. They do not, in express terms, provide that an act committed in 2007 or 2008 and constituting an offence under the Armed Forces Act shall retrospectively be deemed to have been committed under the corresponding provision of the Kenya Defence Forces Act.
34. The distinction between preservation of an existing legal or administrative regime and retrospective creation or alteration of criminal liability is fundamental. A transitional provision may preserve service status and permit continuity of military administration without altering the law applicable to an act which had already occurred.
35. Article 50(2)(n) of the Constitution reinforces this principle. An accused person has the right not to be convicted for an act or omission which, at the time it was committed or omitted, was not an offence under Kenyan or international law.
36. The converse is equally important. The repeal of a statute does not necessarily extinguish liability or proceedings arising from acts done while the statute was in force. The effect of repeal must therefore be considered together with the applicable saving provisions, including section 23 of the Interpretation and General Provisions Act, Cap. 2.
37. I therefore approach the issue in three stages. First, I identify the substantive criminal law in force when the alleged conduct occurred. Secondly, I consider the effect of the repeal and the transitional and savings provisions. Thirdly, I consider whether the charges actually preferred and the proceedings subsequently conducted complied with that legal framework.
38. On the first question, there can be no serious doubt: the alleged desertions commenced in 2007 and 2008, when the Armed Forces Act was in force. Section 31 of that Act is therefore the starting point in determining the substantive criminal liability arising from those acts.
39. The fact that the Appellants were eventually tried after commencement of the Kenya Defence Forces Act does not, without more, alter the date upon which the alleged offences were committed. The Court must therefore be cautious not to use the 2012 Act retrospectively merely because it was the legislation under which the Court Martial proceedings were subsequently conducted.
40. At the same time, I do not at this stage hold that every charge brought after 17th September 2012 in respect of earlier conduct was necessarily a nullity. That question requires consideration of the transitional and savings provisions, the law governing defective charges, and the precise nature of the offence charged. It will be addressed fully before the individual appeals are determined.
Constitutional protection and limitation
41. Article 50(2)(n) is not a technical provision. It is a substantive constitutional safeguard against retrospective criminal liability. The Court must therefore identify the law applicable to the conduct before considering whether the later statute can properly govern the proceedings.
42. Article 25(c) is equally important. It places the right to a fair trial among the rights that may not be limited. The military status of an accused person does not remove him from the protection of Article 50.
43. Article 24 provides the general constitutional framework for limitation of rights and freedoms which are otherwise subject to limitation. A limitation must be authorised by law and must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The constitutional test requires the Court to consider, among other matters, the nature of the right and the purpose, nature and extent of the limitation.
44. Article 24 must, however, be applied according to the nature of the particular right in question. It cannot be used to justify a limitation of a right which Article 25 has expressly made non-derogable.
45. There is a specific constitutional recognition that certain rights of persons serving in the Kenya Defence Forces may be limited by legislation. Article 24(5) identifies the rights which may be so limited. That provision cannot, however, be read as a general exclusion of the constitutional guarantees governing criminal trials.
46. Thus, where the Appellants complain of restrictions upon movement, military discipline or service-related rights, the Court must examine the applicable statutory and constitutional limitations. Where the complaint concerns the fairness of the criminal trial itself, Article 50 and Article 25(c) remain controlling.
47. The same distinction applies to the complaint concerning delay. Article 50(2)(e) guarantees the right to have a trial begin and conclude without unreasonable delay. The absence of a conventional statutory limitation period for a military offence does not give the State an unlimited period within which to prosecute without constitutional scrutiny.
48. The issue of delay will therefore be considered separately. The Court must determine the length of the delay, the reasons advanced for it, the responsibility of the parties, the prejudice caused, and whether the delay affected the fairness of the proceedings. Article 24 will be engaged where the State seeks to justify a limitation of a right which is constitutionally capable of limitation; it cannot be invoked to dilute the non-derogable content of the fair-trial guarantee.
G. THE NATURE OF THE COURT MARTIAL FINDING
49. I also consider it necessary to clarify at the outset the nature of the decision rendered by the Court Martial.
50. The proceedings giving rise to these appeals predated the present detailed procedural framework governing Court Martial proceedings. The Court Martial's determination was a finding upon the charge. It was not a judgment in the same form as a judgment of a civil or ordinary criminal court under section 169 of the Criminal Procedure Code.
51. In Charles Maina Ngare v Republic [2016] KEHC 7781 (KLR), the High Court considered the applicable Armed Forces Rules of Procedure and noted that Rule 65 prescribed the manner in which a finding on a charge was to be recorded. The Court was not required to reproduce the structure of a civil-court judgment.
52. The same distinction is reflected in Robert Nyambariga v Republic [2020] KEHC 9516 (KLR), where the High Court explained that the members of the Court Martial determine the finding, while the Judge Advocate performs the distinct legal role assigned to that office and does not vote on the finding.
53. I therefore would not invalidate the Court Martial proceedings merely because the recorded findings were brief. The applicable law did not require the Court Martial to produce a civil-court-style judgment.
54. That, however, is not the end of the matter. The brevity of a finding cannot relieve an appellate court of the obligation to examine the record to determine whether the conviction was supported by the evidence and the law.
55. In the present cases, the Judge Advocate gave lengthy legal directions and addressed many of the issues raised by the defence. The recorded findings of the members were, in substance, brief statements that desertion had been proved. The Judge Advocate's directions cannot themselves be treated as the finding of the Court Martial. The finding was that of the members.
56. The question for this Court is therefore not whether the Court Martial was required to write a lengthy judgment. It was not. The question is whether, upon the whole record, the finding that desertion had been proved can safely stand when the statutory ingredients of the offence, the evidence adduced by the prosecution, and the material issues raised by the defence are examined.
57. This distinction becomes particularly important when the Court considers the individual appeals. The legal regime applicable at the time will be respected, but the Court must nevertheless determine whether each conviction was supported by the law and evidence and whether the proceedings were attended by a miscarriage of justice.
H. THE COMMON EVIDENCE
58. Lieutenant Evan Oguga was a material witness in the proceedings. His evidence concerned, among other matters, the Appellants' service records, their absence and the circumstances in which their absence was dealt with.
59. Lieutenant-Colonel Peter Shikuku Chelimo gave evidence concerning the Navy Commander's Planning Directive on Operation Linda Mpaka dated 31st December 2006 and Operation Linda Mpaka Operation Order No. 04/07 dated 7th November 2007. The prosecution relied upon those documents in support of its contention that the Navy was engaged in operations and that the Appellants were not at liberty simply to leave the service.
60. The Appellants, on their part, relied upon evidence concerning their applications for discharge or resignation, the surrender of military stores, clearance forms and the circumstances in which they left their places of duty.
61. The record further contains evidence concerning the subsequent arrest and detention of the Appellants, including the circumstances in which some presented themselves to the military authorities and others returned through the REJAB programme.
62. The prosecution and defence also took differing positions concerning whether the Appellants were on active service or under orders for active service at the material time. That question is material because of the punishment prescribed for desertion and will therefore require separate consideration.
63. There was also evidence and argument concerning the establishment and functioning of the office of the Director of Military Prosecutions, the persons who conducted the prosecutions before the Court Martial, and the effect of sections 213 and 214 of the Kenya Defence Forces Act.
64. These matters cannot properly be resolved by reference to a generalised account of the twenty-five Appellants. The Court will therefore first determine the common questions of law and thereafter apply those principles to each Appellant on the evidence relating to him.
I. CONCLUSION OF PART I
65. At this stage, I make the following preliminary findings.
66. First, the twenty-five appeals are properly before this Court on rehearing pursuant to the decision of the Court of Appeal. Consolidation was sought by the Respondent , considered by the Court in the presence of all the parties, and adopted with the agreement of the parties and the Court as the most prudent and convenient course. Consolidation did not merge the individual appeals into one. Each appeal remains an individual appeal arising from a separate conviction, and each must be determined upon its own facts and evidence.
67. Second, the fact that consolidation was subsequently relied upon by the Respondent as a ground before the Court of Appeal does not alter the circumstances in which consolidation was ordered by this Court. The defect identified by the Court of Appeal lay not in consolidation itself, but in the failure to undertake the necessary individual evaluation and determination of the twenty-five appeals.
68. Third, the alleged acts of desertion occurred in 2007 and 2008 when the Armed Forces Act was in force. Section 31 of that Act therefore forms the starting point in determining the substantive criminal law applicable to the alleged conduct.
69. Fourth, the subsequent enactment of the Kenya Defence Forces Act, 2012 and its transitional provisions must be considered carefully. Section 310 cannot simply be ignored, but neither can it be treated as an express retrospective conversion of offences committed under the repealed Act into offences under the new Act.
70. Fifth, the constitutional protection against retrospective criminal liability in Article 50(2)(n) must be observed, while the right to a fair trial under Article 25(c) remains non-derogable. Article 24 will be applied where a constitutionally permissible limitation is alleged, but cannot be used to limit a right which the Constitution has expressly made non-derogable.
71. Sixth, desertion must be examined according to the particular statutory provision applicable to the conduct alleged. It is not sufficient to describe desertion in the abstract as either an offence requiring an intention permanently to remain absent or as an absolute offence. The Court must identify the precise statutory limb charged and determine its constituent elements.
72. Seventh, the Court Martial's decision must be understood as a statutory finding , not as a civil-court judgment. The brevity of the recorded finding is therefore not, by itself, fatal. The conviction must nevertheless be capable of being supported by the law and evidence when examined on appeal.
73. With those matters clarified, I now turn to the question of the Director of Military Prosecutions and sections 213 and 214 of the Kenya Defence Forces Act .
I. THE OFFICE OF THE DIRECTOR OF MILITARY PROSECUTIONS
74. Section 213 of the Kenya Defence Forces Act, 2012 establishes the office of the Director of Military Prosecutions. It prescribes the qualifications for appointment and sets out the powers of the holder of that office. Of particular relevance to these appeals is subsection (6), which provides that the office of the Director of Military Prosecutions “shall be a separate office from that of the legal department in the Defence Forces or Ministry.” The question before the Court is whether that statutory requirement was observed at the time these Appellants were prosecuted.
75. The Appellant
[...truncated]
1. JEFFREY OKURI PEPELA……………….…………....Criminal Appeal No.153 of 2014
2. GABRIEL KIRIGHA CHAWANA ………………….……..Criminal Appeal No.4 of 2015
3. REID NYAMWEYA………………………….....…….Criminal Appeal No.169 of 2014
4. SAMUEL KIMANI ONESMUS………………….............Criminal Appeal No.5 of 2015
5. JAPHETH MURIITHI…………………………..…….Criminal Appeal No.184 of 2014
6. ASHFORD CHABARI………………………………….Criminal Appeal No.13 of 2015
7. POLYCARP NYAIRO…………………………..............Criminal Appeal No.19 of 2015
8. AGGREY LANOGWA…………………………………Criminal Appeal No.18 of 2015
9. EDWARD ODANGA…………………………….…….Criminal Appeal No.22 of 2015
10. PAUL GICHINI ………………………………...……....Criminal Appeal No.7 of 2015
11. ROMANO NTONGONDU……………….…………..Criminal Appeal No.175 of 2014
12. LEORNARD KIGHOMBE……………...……………..Criminal Appeal No.174 of 2014
13. ALFRED KETOLE…………………………………….Criminal Appeal No.173 of 2014
14. JONATHAN MANKO MURIMI………………………....Criminal Appeal No.8 of 2015
15. GEORGE NGÁNGÁ ……………………….……….…..Criminal Appeal No.9 of 2015
16. MOSES BOLO………………………………………...Criminal Appeal No.10 of 2015
17. ZECHARIAH OICHOE ………………………………….Criminal Appeal No.2 of 2015
18. ALBERT MUOKI MWOLOLO …………………………..Criminal Appeal No.3 of 2015
19. VICTOR NABWERA……………….……………………Criminal Appeal No.7 of 2015
20. SOUD MOHAMED OMAR ……………………………..Criminal Appeal No.6 of 2015
21. JOHN MUTUA MWEWA…………………………….Criminal Appeal No.168 of 2014
22. MOSES SIMIYU NYONGESA………………….……...Criminal Appeal No.171 of 2014
23. GEORGE MUTABARI……………………...…………Criminal Appeal No.176 of 2014
24. SAMUEL MAINGI…………………………...……….Criminal Appeal No.169 of 2014
25. SIMON NJOROGE MBUGUA………………………...Criminal Appeal No.172 of 2014
(Being the twenty-five appeals remitted for rehearing by the Court of Appeal in Republic v Pepela & 24 others (Criminal Appeal Nos. 64 & 66–89 of 2016 (Consolidated)) [2024] KECA 204 (KLR))
(Arising from the convictions and sentences of the Court Martial sitting at Mtongwe Naval Base, Mombasa, delivered on diverse dates)
A. INTRODUCTION
1. The Appellants, all former servicemen of the Kenya Navy, were convicted by the Court Martial for the offence of desertion contrary to section 74(1)(a) as read with section 74(3)(a)(i) of the Kenya Defence Forces Act, 2012, and were, on diverse dates, sentenced to life imprisonment.
2. Aggrieved by those decisions, each Appellant lodged an individual appeal to this Court. On 21st August 2015, by a single consolidated judgment, this Court (Muya J) found that what had been proved was the lesser offence of absence without leave contrary to section 75 of the Act, which carries a maximum sentence of two years. The convictions for desertion were accordingly set aside and the lesser offence substituted, with the period already spent in custody being deemed sufficient punishment.
3. Dissatisfied with that decision, the Respondent appealed to the Court of Appeal. By its judgment in Republic v Pepela & 24 others (Criminal Appeal Nos. 64 & 66–89 of 2016 (Consolidated)) [2024] KECA 204 (KLR), delivered on 1st March 2024, the Court of Appeal declared the consolidated judgment a nullity on the ground that the first appellate court had failed to re-evaluate and determine each appeal separately. The appeals were remitted to this Court for rehearing by another Judge, with a direction that the matter be expedited and determined on a priority basis, having regard to the considerable period that had elapsed.
4. It is upon that remission that the twenty-five appeals now come before me for fresh determination.
Consolidation of the appeals
5. At the preliminary stage of the rehearing, this Court dealt with applications concerning the release of the Appellants on bail or bond pending the hearing of their appeals. The Respondent thereafter applied for the twenty-five appeals to be consolidated for purposes of hearing and determination. The application was considered in the presence of all the parties, and the Appellants, the Respondent and the Court were in agreement that consolidation was the most prudent and convenient course for the disposal of the matters.
6. I consider it necessary to address this matter because consolidation subsequently featured as one of the complaints advanced by the Respondent before the Court of Appeal. The record, however, is clear that consolidation was sought by the Respondent itself before this Court , and was adopted with the concurrence of all the parties and the Court. It was considered the appropriate course having regard to the common questions of law, the substantial overlap in the evidence, the common witnesses and the fact that the appeals arose from proceedings before the same Court Martial.
7. The order of consolidation did not, however, merge the twenty-five appeals into one appeal or dispense with the obligation to consider the circumstances of each Appellant separately. Consolidation is a procedural device for convenience and efficient administration of justice. It does not extinguish the distinct identity of the individual appeals.
8. It follows that the fact that the appeals were heard and considered together cannot properly be understood as relieving the first appellate court of the duty to examine the evidence relating to each Appellant. Each conviction remained an individual conviction. Each Appellant was entitled to a determination based upon the evidence tendered in his own case.
9. It is in that context that the decision of the Court of Appeal must be understood. The vice identified by that Court was not that the appeals had been consolidated as such. Rather, it was that, notwithstanding the consolidation, the first appellate court had failed to undertake the requisite individual evaluation and determination of the twenty-five appeals.
10. The present rehearing therefore proceeds on that basis. The common questions of law and the common evidence may properly be considered together where appropriate, but the Court shall thereafter return to the evidence and circumstances peculiar to each Appellant and make an individual determination in respect of each appeal.
B. GROUNDS OF APPEAL
11. Upon a perusal of the twenty-five petitions of appeal, the grounds raised are substantially common and may conveniently be condensed into complaints that the trial court erred in law and in fact in:
(a) failing to appreciate that there was no substantive holder of the office of the Director of Military Prosecutions as established under section 213 of the Kenya Defence Forces Act;
(b) failing to appreciate that the prosecution was conducted by legal officers not mandated by the Act;
(c) applying the Kenya Defence Forces Act to conduct alleged to have occurred when the Armed Forces Act was still in force;
(d) convicting the Appellants upon defective charges and upon contradictory and inconsistent evidence;
(e) treating desertion as an absolute or strict-liability offence without considering the constituent elements of the particular statutory provision;
(f) admitting the prosecution's secondary evidence while declining documents tendered by the defence, notwithstanding a notice to produce;
(g) upholding convictions notwithstanding that the prosecution had not proved its case beyond reasonable doubt; and
(h) violating the Appellants' constitutional and human rights before and during the trial.
12. Some of these grounds raise questions common to all the appeals. Others arise only in relation to particular Appellants. The Court will therefore deal first with the common questions of law and thereafter consider the evidence and circumstances peculiar to each Appellant.
C. BACKGROUND
13. The Appellants were servicemen in the Kenya Navy. At the time material to the allegations against them, their service was governed by the Armed Forces Act, Cap. 199, which was subsequently repealed and replaced by the Kenya Defence Forces Act, No. 25 of 2012.
14. Between 2007 and 2008, the Appellants severally and independently sought to terminate or otherwise regularise their service. The circumstances were not identical. Some made applications for discharge; one was a commissioned officer who tendered his resignation; in some cases applications were expressly declined; and in others there was no communicated response before the Appellant left the service establishment.
15. The evidence also disclosed that, in the course of the administrative processes, some Appellants surrendered military stores in their possession and were issued with clearance forms which they completed and presented to the relevant authorities.
16. The Appellants subsequently left their respective places of service and remained away for prolonged periods. In early 2014, some were arrested after responding to requests by the military to present themselves at their former bases, while others had rejoined the service through a program styled “REJAB” and were thereafter arrested and placed under close arrest.
17. They were subsequently charged before the Court Martial with desertion and, upon conviction, sentenced to life imprisonment. It is those convictions and sentences which are the subject of the present appeals.
D. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT
18. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the entire evidence on record and to draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify.
19. In Okeno v Republic [1972] EA 32, the predecessor of the Court of Appeal held that an appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
20. That principle was reaffirmed in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123 and Kiilu & another v Republic [2005] KECA 335 (KLR). The appellate court must reconsider and evaluate the evidence itself and draw its own conclusions, while making allowance for the fact that it did not have the advantage of seeing and hearing the witnesses.
21. The Court is, however, reminded by Peters v Sunday Post Ltd [1958] EA 424 that an appellate court should exercise caution in interfering with findings based upon the credibility of witnesses whom the trial court had the advantage of seeing and hearing.
22. The appellate jurisdiction applicable to these appeals is also informed by section 188(1) of the Kenya Defence Forces Act, which empowers the High Court to allow an appeal where the conviction is unreasonable, cannot be supported having regard to the evidence, is founded upon a wrong decision on a question of law, or is attended by a miscarriage of justice.
23. In the present rehearing, these principles assume particular importance. The Court of Appeal did not remit the appeals for a general reconsideration divorced from the individual records. It did so because the twenty-five appeals had not been separately evaluated and determined. I must therefore examine the evidence relating to each Appellant independently, even where the governing legal principles and portions of the evidence are common.
24. The common evidence will consequently be considered once where appropriate. The individual evidence, the circumstances surrounding each Appellant's departure, the status of any application for discharge or resignation, the evidence concerning absence and the applicable statutory ingredients will thereafter be considered separately.
E. THE QUESTIONS ARISING FOR DETERMINATION
25. From the petitions of appeal, the record of the Court Martial, the written submissions and the oral arguments presented before this Court, the following principal questions arise:
(a) What was the applicable substantive legal regime governing the alleged acts of desertion committed in 2007 and 2008, and what was the effect of sections 309, 310 and 311 of the Kenya Defence Forces Act, 2012?
(b) What was the legal character of the offence of desertion under the law applicable at the material time? In particular, was the relevant statutory limb an absolute or strict-liability offence, and what ingredients was the prosecution required to prove?
(c) Whether the prosecution was properly constituted under sections 213 and 214 of the Kenya Defence Forces Act and, in that regard, what is the effect of the decisions in Kamau v Director of Military Prosecution & another and Samuel Sabuni & 2 others v Court Martial & 8 others .
(d) Whether the Appellants' applications for discharge, the 1st Appellant's resignation, surrender of military stores and completion of clearance forms had any legal or evidential effect upon the allegation of desertion.
(e) Whether the alleged failure to communicate decisions on applications for discharge within the period contended by the Appellants had any legal effect under the law applicable at the material time.
(f) Whether the prolonged period between the Appellants' departure, their arrest and their trial violated their constitutional rights, including the right to a fair trial within a reasonable time.
(g) Whether any limitation of the Appellants' constitutional rights was authorised by law and capable of justification under Article 24, bearing in mind the rights declared non-derogable under Article 25.
(h) Whether the Appellants were on active service or under orders for active service and the legal consequence thereof.
(i) Whether the Court Martial was properly constituted and whether its findings were legally sufficient having regard to the law governing Court Martial proceedings at the material time.
(j) Whether the prosecution proved the offence charged beyond reasonable doubt against each Appellant.
(k) If the convictions cannot stand, what orders ought properly to follow in each appeal.
F. THE APPLICABLE LEGAL REGIME
The law in force when the alleged conduct occurred
26. I begin with the legal regime applicable to the alleged conduct. This is not a matter of nomenclature. It goes to the foundation of the criminal charges.
27. The alleged acts of desertion occurred in 2007 and 2008. At that time, the governing legislation was the Armed Forces Act, Cap. 199 . The Kenya Defence Forces Act, No. 25 of 2012, had not yet been enacted or commenced.
28. Section 31 of the Armed Forces Act dealt with desertion. It identified different circumstances in which a person subject to the Act committed desertion, including circumstances involving an intention to remain permanently absent and, separately, absence without leave for a continuous period exceeding ninety days.
29. The Kenya Defence Forces Act was subsequently enacted and commenced on 17th September 2012. Section 309 repealed the Armed Forces Act. Section 310 contained transitional and savings provisions, while section 311 dealt with persons who were serving immediately before commencement of the new Act.
Section 310 and the repeal of the Armed Forces Act
30. The existence of those transitional provisions is important. The Court cannot simply ignore the 2012 legislation on the basis that the alleged conduct predates it. Equally, the Court cannot assume that the new Act retrospectively governed criminal conduct occurring five years earlier. The two propositions must be kept distinct.
31. Section 310 begins with the words “Notwithstanding section 309” and makes provision for the transition from the Armed Forces Act to the Kenya Defence Forces Act. Among other matters, references to the repealed Act in written law are to be construed with reference to the new Act, and existing regulations, directives, orders, instructions and other administrative measures made under the repealed Act and still in force immediately before commencement are preserved subject to the statutory qualifications.
32. Section 311, separately, provides for the continued service status of persons who were serving immediately before commencement of the new Act.
33. Those provisions are important for the continued administration and regulation of the Defence Forces. They do not, in express terms, provide that an act committed in 2007 or 2008 and constituting an offence under the Armed Forces Act shall retrospectively be deemed to have been committed under the corresponding provision of the Kenya Defence Forces Act.
34. The distinction between preservation of an existing legal or administrative regime and retrospective creation or alteration of criminal liability is fundamental. A transitional provision may preserve service status and permit continuity of military administration without altering the law applicable to an act which had already occurred.
35. Article 50(2)(n) of the Constitution reinforces this principle. An accused person has the right not to be convicted for an act or omission which, at the time it was committed or omitted, was not an offence under Kenyan or international law.
36. The converse is equally important. The repeal of a statute does not necessarily extinguish liability or proceedings arising from acts done while the statute was in force. The effect of repeal must therefore be considered together with the applicable saving provisions, including section 23 of the Interpretation and General Provisions Act, Cap. 2.
37. I therefore approach the issue in three stages. First, I identify the substantive criminal law in force when the alleged conduct occurred. Secondly, I consider the effect of the repeal and the transitional and savings provisions. Thirdly, I consider whether the charges actually preferred and the proceedings subsequently conducted complied with that legal framework.
38. On the first question, there can be no serious doubt: the alleged desertions commenced in 2007 and 2008, when the Armed Forces Act was in force. Section 31 of that Act is therefore the starting point in determining the substantive criminal liability arising from those acts.
39. The fact that the Appellants were eventually tried after commencement of the Kenya Defence Forces Act does not, without more, alter the date upon which the alleged offences were committed. The Court must therefore be cautious not to use the 2012 Act retrospectively merely because it was the legislation under which the Court Martial proceedings were subsequently conducted.
40. At the same time, I do not at this stage hold that every charge brought after 17th September 2012 in respect of earlier conduct was necessarily a nullity. That question requires consideration of the transitional and savings provisions, the law governing defective charges, and the precise nature of the offence charged. It will be addressed fully before the individual appeals are determined.
Constitutional protection and limitation
41. Article 50(2)(n) is not a technical provision. It is a substantive constitutional safeguard against retrospective criminal liability. The Court must therefore identify the law applicable to the conduct before considering whether the later statute can properly govern the proceedings.
42. Article 25(c) is equally important. It places the right to a fair trial among the rights that may not be limited. The military status of an accused person does not remove him from the protection of Article 50.
43. Article 24 provides the general constitutional framework for limitation of rights and freedoms which are otherwise subject to limitation. A limitation must be authorised by law and must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The constitutional test requires the Court to consider, among other matters, the nature of the right and the purpose, nature and extent of the limitation.
44. Article 24 must, however, be applied according to the nature of the particular right in question. It cannot be used to justify a limitation of a right which Article 25 has expressly made non-derogable.
45. There is a specific constitutional recognition that certain rights of persons serving in the Kenya Defence Forces may be limited by legislation. Article 24(5) identifies the rights which may be so limited. That provision cannot, however, be read as a general exclusion of the constitutional guarantees governing criminal trials.
46. Thus, where the Appellants complain of restrictions upon movement, military discipline or service-related rights, the Court must examine the applicable statutory and constitutional limitations. Where the complaint concerns the fairness of the criminal trial itself, Article 50 and Article 25(c) remain controlling.
47. The same distinction applies to the complaint concerning delay. Article 50(2)(e) guarantees the right to have a trial begin and conclude without unreasonable delay. The absence of a conventional statutory limitation period for a military offence does not give the State an unlimited period within which to prosecute without constitutional scrutiny.
48. The issue of delay will therefore be considered separately. The Court must determine the length of the delay, the reasons advanced for it, the responsibility of the parties, the prejudice caused, and whether the delay affected the fairness of the proceedings. Article 24 will be engaged where the State seeks to justify a limitation of a right which is constitutionally capable of limitation; it cannot be invoked to dilute the non-derogable content of the fair-trial guarantee.
G. THE NATURE OF THE COURT MARTIAL FINDING
49. I also consider it necessary to clarify at the outset the nature of the decision rendered by the Court Martial.
50. The proceedings giving rise to these appeals predated the present detailed procedural framework governing Court Martial proceedings. The Court Martial's determination was a finding upon the charge. It was not a judgment in the same form as a judgment of a civil or ordinary criminal court under section 169 of the Criminal Procedure Code.
51. In Charles Maina Ngare v Republic [2016] KEHC 7781 (KLR), the High Court considered the applicable Armed Forces Rules of Procedure and noted that Rule 65 prescribed the manner in which a finding on a charge was to be recorded. The Court was not required to reproduce the structure of a civil-court judgment.
52. The same distinction is reflected in Robert Nyambariga v Republic [2020] KEHC 9516 (KLR), where the High Court explained that the members of the Court Martial determine the finding, while the Judge Advocate performs the distinct legal role assigned to that office and does not vote on the finding.
53. I therefore would not invalidate the Court Martial proceedings merely because the recorded findings were brief. The applicable law did not require the Court Martial to produce a civil-court-style judgment.
54. That, however, is not the end of the matter. The brevity of a finding cannot relieve an appellate court of the obligation to examine the record to determine whether the conviction was supported by the evidence and the law.
55. In the present cases, the Judge Advocate gave lengthy legal directions and addressed many of the issues raised by the defence. The recorded findings of the members were, in substance, brief statements that desertion had been proved. The Judge Advocate's directions cannot themselves be treated as the finding of the Court Martial. The finding was that of the members.
56. The question for this Court is therefore not whether the Court Martial was required to write a lengthy judgment. It was not. The question is whether, upon the whole record, the finding that desertion had been proved can safely stand when the statutory ingredients of the offence, the evidence adduced by the prosecution, and the material issues raised by the defence are examined.
57. This distinction becomes particularly important when the Court considers the individual appeals. The legal regime applicable at the time will be respected, but the Court must nevertheless determine whether each conviction was supported by the law and evidence and whether the proceedings were attended by a miscarriage of justice.
H. THE COMMON EVIDENCE
58. Lieutenant Evan Oguga was a material witness in the proceedings. His evidence concerned, among other matters, the Appellants' service records, their absence and the circumstances in which their absence was dealt with.
59. Lieutenant-Colonel Peter Shikuku Chelimo gave evidence concerning the Navy Commander's Planning Directive on Operation Linda Mpaka dated 31st December 2006 and Operation Linda Mpaka Operation Order No. 04/07 dated 7th November 2007. The prosecution relied upon those documents in support of its contention that the Navy was engaged in operations and that the Appellants were not at liberty simply to leave the service.
60. The Appellants, on their part, relied upon evidence concerning their applications for discharge or resignation, the surrender of military stores, clearance forms and the circumstances in which they left their places of duty.
61. The record further contains evidence concerning the subsequent arrest and detention of the Appellants, including the circumstances in which some presented themselves to the military authorities and others returned through the REJAB programme.
62. The prosecution and defence also took differing positions concerning whether the Appellants were on active service or under orders for active service at the material time. That question is material because of the punishment prescribed for desertion and will therefore require separate consideration.
63. There was also evidence and argument concerning the establishment and functioning of the office of the Director of Military Prosecutions, the persons who conducted the prosecutions before the Court Martial, and the effect of sections 213 and 214 of the Kenya Defence Forces Act.
64. These matters cannot properly be resolved by reference to a generalised account of the twenty-five Appellants. The Court will therefore first determine the common questions of law and thereafter apply those principles to each Appellant on the evidence relating to him.
I. CONCLUSION OF PART I
65. At this stage, I make the following preliminary findings.
66. First, the twenty-five appeals are properly before this Court on rehearing pursuant to the decision of the Court of Appeal. Consolidation was sought by the Respondent , considered by the Court in the presence of all the parties, and adopted with the agreement of the parties and the Court as the most prudent and convenient course. Consolidation did not merge the individual appeals into one. Each appeal remains an individual appeal arising from a separate conviction, and each must be determined upon its own facts and evidence.
67. Second, the fact that consolidation was subsequently relied upon by the Respondent as a ground before the Court of Appeal does not alter the circumstances in which consolidation was ordered by this Court. The defect identified by the Court of Appeal lay not in consolidation itself, but in the failure to undertake the necessary individual evaluation and determination of the twenty-five appeals.
68. Third, the alleged acts of desertion occurred in 2007 and 2008 when the Armed Forces Act was in force. Section 31 of that Act therefore forms the starting point in determining the substantive criminal law applicable to the alleged conduct.
69. Fourth, the subsequent enactment of the Kenya Defence Forces Act, 2012 and its transitional provisions must be considered carefully. Section 310 cannot simply be ignored, but neither can it be treated as an express retrospective conversion of offences committed under the repealed Act into offences under the new Act.
70. Fifth, the constitutional protection against retrospective criminal liability in Article 50(2)(n) must be observed, while the right to a fair trial under Article 25(c) remains non-derogable. Article 24 will be applied where a constitutionally permissible limitation is alleged, but cannot be used to limit a right which the Constitution has expressly made non-derogable.
71. Sixth, desertion must be examined according to the particular statutory provision applicable to the conduct alleged. It is not sufficient to describe desertion in the abstract as either an offence requiring an intention permanently to remain absent or as an absolute offence. The Court must identify the precise statutory limb charged and determine its constituent elements.
72. Seventh, the Court Martial's decision must be understood as a statutory finding , not as a civil-court judgment. The brevity of the recorded finding is therefore not, by itself, fatal. The conviction must nevertheless be capable of being supported by the law and evidence when examined on appeal.
73. With those matters clarified, I now turn to the question of the Director of Military Prosecutions and sections 213 and 214 of the Kenya Defence Forces Act .
I. THE OFFICE OF THE DIRECTOR OF MILITARY PROSECUTIONS
74. Section 213 of the Kenya Defence Forces Act, 2012 establishes the office of the Director of Military Prosecutions. It prescribes the qualifications for appointment and sets out the powers of the holder of that office. Of particular relevance to these appeals is subsection (6), which provides that the office of the Director of Military Prosecutions “shall be a separate office from that of the legal department in the Defence Forces or Ministry.” The question before the Court is whether that statutory requirement was observed at the time these Appellants were prosecuted.
75. The Appellant
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