Jeffery Okuri Pepela & 25 others v Republic [2015] KEHC 3118 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NOS.  153 OF 2014, 17 OF 2015, 175 OF 2014, 174 OF 2014, 173 OF 2014, 8 OF 2015, 9 OF 2015, 10 OF 2015, 2 OF 2015,  3 OF 2015, 4 OF 2015, 5 OF 2015,  6 OF 2015, 7 OF 2015, 168 OF 2014, 171 OF 2014, 181 OF 2014, 176 OF 2014, 13 OF 2015,  169 OF 2014, 172 OF 2014, 18 OF 2015, 19 OF 2015, 21 OF 2015 AND 22 OF 2015

LT. JEFFERY OKURI PEPELA & 25 OTHERS ….....................…..APPELLANT

VERSUS

REPUBLIC  ……….…….........................................................…RESPONDENT

(From the Original Conviction and Sentence in the Court Martial Case of  Mtongwe Navy Base  - Mombasa).

JUDGMENT

All the appellants in the above mentioned Criminal  Appeals were Convicted and Sentenced to life imprisonment for the offence of desertion contrary to section 74(1)(a) of the Kenya Defence Forces Act 2012.

Brief Introduction

All the appellants were servicemen in the Kenya Navy as provided for under the Armed Forces Act now repealed and replacedby the Kenya Defence Forces Act No. 25 of 2012.

They served as such for various periods till the years between 2007 and 2008 when they singularly and individually decided to terminate their services by way of resignation and wrote letters to their respective superiors to that effect.

They were in turn directed to hand over all military stores  int their possession to their  Departmental Heads in the Navy. They filled forms 7110 for purposes of handing over the said military properties, handed over the said stores and they were issued with clearance forms which they filled and presented to the relevant  authorities and subsequently  they left the Armed Forces on various dates.

However, sometimes between the months of January and March 2014 the appellants received directives from the Defence Forces Council requiring them to present  themselves at their respective former bases for documentation and  payments of their terminal dues,  but  upon reporting as duly requested, they were placed under close arrest, till the 5th day of April,  2014 when they were  served with charges of desertion contrary to section 74(1) of the Kenya Defence Forces Act and convening orders for Court Martial proceedings on 10th April, 2014 for the hearing of  their cases.

Subsequently, upon the hearing and determination of the Court Martial proceedings they were convicted and Sentenced to life imprisonment.

Being dissatisfied with both the conviction and sentence the appellants  have now  filed these appeals whose  grounds in the main are:-

That at the time of the prosecution there was no substantive holder of the office of Director of Military Prosecution as set out under Section 213  (2) (a) of the  the Kenya  Dfence Forces Act.

That the prosecution was carried out by  legal officers who ought to have been appointed by the Defence Council acting under  the office of the Director of Military  prosecution as required under section 214 (1) of the Kenya Defence Forces Act.

That the Court Martial applied rules and regulations falling under the Armed Forces Act Cap 199 (repealed) against the Kenya Defence Forces Act Section 310 (1) (2) that ought to have conformed with the current Constitution.

That  the Conviction was  against the  weight of evidence in that the applicants had applied to be discharged from the  Armed Forces. They had returned all the stores that had been supplied to them. They genuinely believed to have been discharged.

They had re joined the Arrmed Forces through a process known as “rejab” and as such no desertion or absenteism  could be  attached.

Further, that  between  the  period of 2007 to 2014 the Armed Forces never tried to trace, the appellants who were readily available.

That  the prosecution failed to adduce evidence  to the effect that the appellants had the requisite “mens rea” for desertion.

The Sentence was harsh  and manifestly excessive.

Charge was defective as the  particulars of the charge were based on Kenya Defence Forces Act 2012 section 74 (1) (a) which was  in variance with the evidence before the Court.

That the Court Martial erred in finding that the appellants were in active service under section 2 of the Armed Forces Act Cap (199)  yet the  charge had been preferred  under the Kenya Defences Act 2012 where the definition of active service is radically  different under the  two acts and  the same applies  to the definition of an enemy.

The  appellants were convicted under section 74 (1)(a) of the Kenya Defence Forces Act for the offence of desertion  in that they absconded themselves without leave on various dates and returnee  thereafter.

Under section 74 of the Kenya Defence Forces Act the offence of desertion is defined in the  following manner;

A person who is subject to this Act commits an offence  if that  person-

(a) Deserts; or

(b) Persuades or procures any person subject to this Act to desert.

A person deserts if that person -

(a) with the intention,  either at  the time or formed  later, of remaining permanently absent from duty -

Leaves the Defence Forces;

Fails to join  or rejoin the Defence Forces when it is the persons duty to join or rejoin them.

(b)  Being an officer enlists in or enters Defence Forces without  having resigned the  persons commission.

(c)  …............

(d)  Is absent without leave, with intent  to avoid serving  in any  place outside Kenya, or to avoid service or any particular service when before an enemy; or.

Is absent without leave for a continuous period of more than ninety (90) days.

A person who commits an offence under sub section (1)  shall be liable upon conviction by a Court Martial-

(a)  To imprisonment  for life  or  any lesser punishment provided for by this Act  if

The offence was committed under sub section (1) (a),  the person was on active service or under orders for active service  at the  time when  it was committed; or

The offence was committed under  sub section (1) (b) the person in relation to whom  it was committed was on active service or under orders for active service at the time; or

(b)  To imprisonment for not more than two years, in  any other case”.

The Court Martials convicted the appellants and sentenced  them to life imprisonment. Their decisions ought to have been informed by their being satisfied that at the time the appellants left the Defence Forces, they were in active  service.

Under section 22 of the Kenya Defence Forces Act to be  “on active service”   is provided as follows;

(a)  When used in relation to a  person means  that the person is serving in or with a unit of the Defence Forces engaged in operation against an enemy.

(b)  When used in relation to a Unit of the Defence Forces, means  that the Unit is engaged in operations against an enemy?

Who is an enemy?

Section  22 of the Kenya Defence Forces Act defines an “enemy”to mean -

“(a)  Any person or Country committing external aggression against Kenya.

(b)  Any person belonging to a Country committing such aggression

(c)  Such other country as may be declared by the cabinet secretary to be assisting the Country committing  such aggression.

(d) Any person  belonging to the country referred to under paragraph (ii)”.

In a bid to prove that the appellants were in active service at the time they left the Defence Forces, the prosecution introduced and produced as an exhibit a document with the title of “Operation Linda Mpaka”dated the  31st day of December, 2006.

A reading of that document shows that its a planning directive, assessing the security situation obtaining in Somalia at the time and spelling out what measures ought to be put in place to counter that situation.  Same was to be distributed to various commands.

The appellants in their defence produced a magazine titled, “Majesi Yetu”celebrating “Kenya Defence Forces Heroes”  where  the Chief of Defence Forces (then) in his message observed, “

“14th October,  2011 is the day the Kenya Defences Forces were ordered to cross the Kenya Somalia border in pursuit  of Al Shabaab and where we remain to date”.

This brings us to the issue as to whether there was communication to the appellants to the effect that  their units were engaged in operations against an enemy and at what time did these operations commence or start.

I have perused the record  of proceedings and I find that there was scant communication if at all and there is very little to show that the appellants were aware that they were on  active service at the time of leaving.

Desertion is not strict liability case. I have had the  opportunity to peruse the authority relied on by the  appellants “Criminal Law Desk book Volumee II crimes and Defences. The Judge Advocate General's School, US Army Charlottesville Virginia Summer 2010, which extensively deals with  matters concerning military  offences.  Its not binding on this Court but I find  it of persuasive value owing to the lack or  scarcity of homegrown jurisprudence on matters of military  law.

At pages 3–11 paragraph G.  There is a discussion on “mens rea for desertion” it is observed, the offence of desertion and absence without leave are similar in most respects, except for the intent element involved in desertion.

Desertion is a specific intent crime – United States - Vs  Holder, 22 CMR 3 (CMA 1956).

Evidence of intent may be based upon all facts and circumstances of the case, length of absence (apprehension or voluntary surrender) are some factors to be considered.

The determination of whether  an Accused intend to avoid hazardous duty or shirk important service is  subjective, and whether the service is “important “ its an objective question dependent on the totality of circumstances United States -Vs– Gonzales 42 MJ 469 (1995).

That intent element or  mens rea is also found in the Kenya Defence Forces Act itself.

Section 74 (2) of the Act provides:- A person deserts if that person:-

(a)  With the intention, either at the time or formed later, of remaining  permanently absent from duty  (1) leaves the defence forces ….............. “.

Therefore it was incumbent upon the prosecution to prove beyond reasonable doubt that the appellants had formed the intention of permanently remaining absent  from duty and secondrly, whether  its an  offence per se to leave the Defence Forces.

It is not in dispute that all the appellants in the Court Martial cases held at Mtongwe Navy base which forms the basis of these appeals were desirous of leaving the Defence Forces.

Section 247 of the Kenya Defence Forces Act provides for termination of  service of members  or regular service thus:-

“The service of a member of the regular force is terminated upon:-

(a) Retirement

(b)  Resignation

(c)  Termination of Commission

(d)  Dismissal from service or

(e)  Discharge from service “.

There is evidence, which  is not controverted that they had embarked on the process of resignation by way of processing the necessary documents, returning military stores belonging to the Defence Forces, they were issued with clearance forms which they filled and presented to the relevant authorities and left in the belief  that they had been discharged.

This was in the year between 2007 and 2008. Things went quiet and they assumed that everything was in order. They were  not contacted during that  period and the one between January and March 2014 when they were directed by Defence Council to present themselves at their former bases.

The conduct of the appellants in following the right  channels so as to obtain the requisite authority/ permission to leave service was consistent with a desire to follow the rules and the law governing termination of their services.  Their superiors received their correspondence and acted upon it, the only grave mistake which they did,  is that they did not await for a discharge from the service commander as required under section 255 and 257 of the Kenya Defences Act.

Section 257 of the Act provides for the mode of discharge thus,

“(1)  Subject  to this part, every service member becoming entitled or liable to be discharged shall be discharged  immediately but shall until discharged,  remain, subject to this Act

…...............

A service member shall not be discharged been authorized by order of the service commander or an officer authorized in that behalf.

Every service member shall be given, on discharge, a certificate of discharge containing the prescribed particulars”.

Is the  offence of desertion  a continuous one?

It is  the contention by the prosecution that it is, in that the appellants deserted on a particular date and returned on a specified one.  Further  at the time of leaving service it was the Armed Forces Act which was in force and when they returned it was the Kenya Defence Forces Act which was in force  and it was open to the prosecution to charge the appellants under whichever Act they deemed proper

Section 74 (2) (e) of the KDF  Act provides:-

“A person deserts if that person – is absent without leave  for a  continuous period of more than  ninety days.

It  therefore follows that after the expiry of ninety (90) days the offence of desertion crystallizes and cannot be said  to be  continuous.

If the offences took place between  the years 2007 and 2008 they crystallized  90 days thereafter.

Were  the appellants on active service?

In  section  2 of the KDF Act the interpretation given is that of a unit engaged in operation against an enemy.

The the word  “enemy“ under the Act is defined to mean “Any person or Country  committing external aggression against Kenya.

It is noted that in the charge sheet in regard to Lt. Jeffery  Okuru Pepela which was Court Martial No. 1 and is now subject  of Criminal appeal No. 153 of  2014 the  words “on active service”were not  included yet the Court proceeded to sentence  him to life imprisonment.

Article 50 (2)(b) of the Constitution provides,

“Every  Accused person has the  right in a fair trial which includes the right (b) to be informed of the charge, with sufficient detail to answer it”.

A perusal of the charge sheet does not show that the particulars of desertion were disclosed.

There is no reference to “Operation Linda Mpaka”. There is no indication as to who was the enemy in the year  2007.  Was it Somalia, Al Shabaab or militias?  The charges  facing the Accused persons did not contain sufficient  details to answer them.

It is the prosecutions case  that at the time of leaving service the appellants were on active service which would mean in lay mans language that this country was facing an aggression from Somalia at the time.  What did the Kenya Defence  Forces do in reaction to the  appellants request  to be permitted to leave the Defence Forces? They embarked on  the processing of their documents, accepted the return of the military stores  in possession of the appellants. Thereafter they went  into a slumber from the years 2008 to 2014  when they caused the appellants to be summoned back to their bases.

Are these  actions  consistent with a force  which was  facing an aggression from an  enemy?  Or was there some element of lethargy  or dereliction of  duty.

I am not satisfied that the prosecution proved beyond reasonable doubt  that the appellants were in  active service  at the time they left the Defence forces.

The appellants have questioned the impartiality of a Court Martial bearing in mind that the investigations are carried out by military personnel,  the prosecution  is done by Military officers and the Court Martial is comprised of military  officers. The role of the Judge Advocate is said to be   peripheral inconsequential.

In Constitutional Petition No. 22 of  2002 and 8 of 2002 in the Constitutional Court of Uganda  Kavuma Judge had this  to say,

“The existence of military  Court system  complementary  to the civil Court system, staffed by members  of the Military who are aware of and sensitive  to ,military concerns even when not all of them  may be professionally trained lawyers, is not necessary in contravention of the Constitution. The existence of such a system, for purposes of enforcing  discipline and efficiency  in the army is very central  to the aspirations of the people and is supported by very compelling reasons “.

At page 41 paragraph 25  of the same Judgment he also observed,

“Among the cardinal  principles of the Army  is one that the armed forces  depend upon the strictness discipline in order  to function efficiently and that all  alleged instances  of non- adherence to the rules of  the military need to be expeditiously dealt with within the chain of command and punishment and therefore  administered without delay”.

Our Constitution under article 169(1) (c) recognizes  ,the Court martial  as a subordinate Court.

Under sub article  2 parliament was  donated with power to enact a legislation conferring jurisdiction functions and powers of the courts established under clause I.

The Kenya Defence Forces Act 2005  of 2012 is such legislation. It in turn creates  the Court Martials.

Under Article 165  (6) of the Constitution the High Court has supervisory   jurisdiction over the Court Martial.

Was the fact that there was no Judgment as envisaged under the Criminal Procedure Code  prejudicial to the appellants?

As argued Supra the existence of Court Martials is crucial for discipline and efficiency in the Defence Forces .

The  roles of  a Judge Advocate are clearly spelt out in the Act. His/Her role is not peripheral. He advises the Court in matters of of law and after submissions by all parties, sums up the case.

This summing up brings out the issues in controversy and the law for determination by the Court, whose determination is by voting. I find the procedure to be expeditious and in line with ensuring expeditious determination of cases.

Sentencing.

In all the appeal cases before this Court for determination emanating all the Court Martials held at  Mtongwe  Navy base all the Accused/Convicts were  Sentenced  to life  Imprisonment including one where the Accused, was not charged with absenting himself, wether leave “while on  active service”.  This is the maximum sentence under the Act.

In  all the  Court Martials the defence did put in their mitigating factors  and service  history  of each appellant from this blanket  sentence, its abundantly  clear that mitigating factors were not considered at all and the principles of Sentencing were thrown out of thee window.

The appellants were charged separately, they did not leave the Defence Forces at the same time. They  were not  of the same rank, hence their duties and responsibilities were not the same. One may understand the Wisdom of ensuring discipline  is enforced in the Armed Forces  and the need to  discourage and deter other would  be deserters but a blanket life sentence was  clearly uncalled for bearing  in mind the circumstances  surrounding the charges of desertion.

This Court has found that  the offence of desertion while  on active service was not  proved  beyond reasonable doubt.

Under powers conferred to the Court under section 189  of the KDF Act the Court finds that the offence of absence  without  leave  contrary to section 75 of the Act was proved.

This sentence carries a maximum sentence of two  years imprisonment. The appellants were placed under close arrest between  the months of January  and March, 2014. They  were arraigned in Court in the month of April, 2014.  They applied  for bonds at the High Court which application was granted but before they could be released an application was made in the Court of Appeal which allowed the appeal and they were remanded in custody. Thereafter they were  convicted on various dates and Sentenced to life imprisonment.

The Court has taken into consideration that they have been  in remand custody as well as  serving sentence for a period  which is  close to one and  half years. That  period is deemed to be enough punishment and is accordingly to the term  already served.

The upshot  is that all the appellants in the criminal  appeals now before this Court emnating from the Court Martials held at Mtongwe Navy Base are hereby set at Liberty forthwith, unless otherwise  lawfully held. And for avoidance of doubt, these  Criminal  Appeals are the ones set out on the  first page of the Judgment.

Judgment delivered dated and signed in open Court this 21stday of August, 2015.

….......................

M.  MUYA

JUDGE

21ST AUGUST, 2015

In the presence of:-

Magolo for appellants in  153 of  2014, Mwanyale Kamunda and Ondieki for appellants Nos. 171, 173, 174, 175, 176, 181 of 2014 2, 3,4, 5, 6, 7 and 13 of  2015 Mr. Odhiambo No. 9 and 10 of 2015.

Gikandi  for appeals Nos. 117 of  2015.

Miss Angawa for appelants  in Appeals No. 8 of 2015 holding brief Gekonde for Criminal Appeals Nos. 18, 19, 21 and 22 of 2015.

Nabwana for appeal No. 172 of 2014

Muteti, Kiprop, Masila Wangila for the Director of Public Prosecution

Kamunda  Mwanyala holding brief  Mutua in CRA No. 168  and 169  of 2014.

…......................

M.  MUYA

JUDGE

21ST AUGUST, 2015

Mr.  Muteti:

Under article 3 of the Constitution of Kenya we wish to  move this Court  for an interim of stay for fourteen (14) days.  Under article 3 of the Constitution every person has to defend the Constitution. That duty falls to the appellants.

Article 157(11) of the Constitution commands us to ensure   that the interest of  Justice are  safe guarded. As we  stand before  the Court section 361 of the Criminal Procedure Code gives us room of appeal against any decision  of the High Court in appellate jurisdiction. That appeal would be purely on  matter of law.

Amongst the grounds we are raising are that the appeals though separately argued were consolidated on the illegality of sentence. The Court  has power under section 179  of the Criminal Procedure. The period of remand cannot amount to service of imprisonment. Court of appeal to interprete  the meaning  of the term desertion and when does it crystallize.

Once its  is crystallizes is it extinguished.  We shall  also be posing whether the sunset clause saves the offences committed in the former Act.

Whether a charge that was lawfully entered in light of section 82 of the Criminal Procedure Code can be invalidated.

In the event  its invalidated can the Court invoke section 179 of the Criminal Procedure Code. We are moving this Court purely on the interest of  justice. The  celebratory mood  will affect other deserters. Where a party  under article 50 of the Constitution is entitled to a fair resolution the overriding objection to do Justice prevails. This would not be the first moment in time where the Court would be staying its orders. We are urging for a fourteen (14) days window to ventilate our grievances

Mr. Gikandi: I will make the reply.  We strongly   oppose the application  made by the Director of Public Prosecution. The starting point is the jurisdiction of the Court.  MotorVessel Liliax  Vs Caltex Oil Ltd.  Jurisdiction is everything. The  question is  has Mr.  Muteti cited a section  of any law where this  Court is  given jurisdiction where is has heard an appeal. This Court does not have the power to stay that order. Section 356 of the Criminal  Procedure Code where the Court after convicting can grant bail or stay of execution pending appeal.

Our law did not  contemplate a  situation where an appellant has succeeded on appeal  to be subject  matter of stay.

Section 356 of the Criminal Procedure Code would have a proviso that  conversely where  an appellant has been released there will be a right to be released. Rule 5 (2) (a)  of the Court of Appeal Rules.

Its only a person who has been convicted and sentenced who can appeal. We submit that, it  can never be the case.

A ruling by Odero Judge and the Court in the case of Sheikh Kadir. Those  two ruling related to application for bail  Those are different matters.  The question is will the Accused persons turn out for hearing  of the appeal. The  appellants turned up for hearing of their appeals

Celebrations are fair gone. If it is a question of security these are only 25 men. There is no evidence that they will pose insecurity.

Identified grounds of appeal. This is not the right Court. We would say that  the appellants  have been  punished and more than punished. We urge the Court to reject the application to be  done so on a summary  basis.

Mr. Magolo: Right to appeal is under section 361 of the Criminal Procedure Code all other question are  to the Court of appeal. Section 357 of the Constitution. There should be no abuse of Court process.

Mr. Mwanyale: A stay of execution cannot be granted  on acquittal. That  is the  preserve of the Court of Appeal.  The  court releases and acquits and then it detains yet the appeal has not been interrogated by Court of Appeal.

The application is an abuse of the Court  process.

Mr.  Odhiambo: On the issue  of consolidation is a mater to be taken  before the Court of appeal. We had a meeting on consolidation. The state rejected. Appeals were not consolidated.

Mr.  Muteti: Mohamed Hershi case. Stay  was granted after  making a finding. We were given time to raise that the issue  to court of appeal.

Mr. Magolo: That was a  civil matter. The application is made purely on public interest. Our desire is to have certain matters settled. Mr. Odhiambo acknowledges that there were attempts to have the matters consolidated in public interest this application is not  merited.

Mr. Wamotsa:

This court has jurisdiction to grant  stay pending appeal.

This in not exceptional. That jurisdiction can be exercised to grant stay. The Court has already  found that the appellant were  guilty.

Its desirable  that the  stay be granted. The appellants have been in custody through out.

Judicial Review is a special jurisdiction its neither civil nor criminal.

All the issues of law raised by  parties can be made in the Court of Appeal.

We pray  for a stay pending  appeal. Decision Republic -Vs- Issa of stay being

Mr. Gikandi: Under Article 157 (11) of the Constitution. Need to prevent abuse of legal process.

The authority cited of Mohamed Hershi was a case dealing with a judicial review application. We stand  on a criminal jurisdiction. What  happened, in Mohamed Harshi is not relevant to this case. The other Case is of stay of proceedings. The 25 appellants have been acquitted forthwith. Public interest article  10. There is  a duty on every  public officer to uphold good governance, integrity and transparency. The appellants have been acquitted.   Judgment of this Court ought to be respected. Why should tax payers money be  spent on the  appellants who the Court has acquitted  them.

Mr.  Kamunda: The  Akasha case was an authority premised on application for bond. This matter was in the Court  of Appeal and it was held that there were no proceedings. The Court should not allow an illegal  precedent. This is the High Court. The Court decision will be relied on by other Courts.

There is no reason for the stay of acquittal. The appellants walked into the military base. They had not been  apprehended by  a period of 5 years.

This is a core issue.

Court: Upon Counsels for the appellants and the Director of public Prosecution. I find no good grounds to stay this Courts decision. Any  application  for stay  may be made before the Court of Appeal. I will give reasons for this ruling on 24th August, 2015.

….................

M.  MUYA

JUDGE

21ST AUGUST, 2015

Mr. Kamunda:  We pray for release of the appellants documents.

Mr. Muteti:  I am  not aware of those documents

Court: Certified copies of the proceedings and the Judgment to be  supplied to all parties, Director of pubic Prosecution and the  appellants. Documents  belonging  to the appellants  to be released to be released to them within fourteen (14) days from  today.

…....................

M. MUYA

JUDGE

21ST AUGUST, 2015.