Twenty-five former Kenya Defence Force soldiers who were sentenced to life imprisonment for desertion of duty have been acquitted, bringing to an end a long-running legal battle that has exposed serious questions about the application of military law.
The soldiers, who were convicted by the Court Martial sitting at Mtongwe Naval Base, Mombasa, have been battling the case since 2014.
The High Court has now quashed the desertion convictions and life sentences, clearing the former Kenya Navy officers of the charges and bringing the proceedings to an end.
“The conviction of each appellant for desertion contrary to the Kenya Defence Forces Act is hereby quashed and set aside. The sentence of life imprisonment imposed upon each of them is hereby quashed and set aside,” the High Court said in the judgment issued on September 22.
The court declined to enter any substituted conviction for absence without leave or any other offence. The court also declined to order a retrial in respect of any of the 25 former Kenya Navy officers.
“Each of the soldiers is accordingly acquitted of the charge upon which he was convicted. The proceedings are accordingly brought to an end and the file closed. Any bond, bail or other order for release previously subsisting in these appeals is hereby discharged,” the judge said.
Some of the 25 ex-soldiers who had been sentenced to life by the court-martial for desertion follow proceedings at the High Court in Mombasa on August 21, 2015.
Photo credit: File | Nation
The legal difficulty was significant because the former soldiers had been charged and sentenced under a regime that exposed them to life imprisonment. Yet the evidence did not establish that they were on active service or had been placed under orders for active service at the material time.Espionage, betrayal, and murder: The untold story of East Africa’s most lethal women
The delay violated Article 50(2)(e) and materially affected the ability of the appellants to meet the historical allegations. The prolonged period of pre-trial detention raised a further rights issue.
The judgment also drew a clear distinction between maintaining discipline in the military and securing criminal convictions through lawful means.
The court acknowledged that prolonged absence from duty undermines military discipline but said the seriousness of such conduct could not override the legal and constitutional safeguards governing criminal trials.
The life sentences, rather than justifying the convictions, made it even more important for the prosecution to establish the correct legal basis for the punishment. The court stressed that military discipline must operate alongside constitutional compliance, including within the command and prosecutorial structures.
The rehearing pitted two fundamentally different accounts of the soldiers’ departure from the military against each other.
They maintained that their alleged offences occurred in 2007 and 2008, yet they were convicted under the Kenya Defence Forces Act enacted in 2012. They also argued that Kenya was not at war when they left and that they had submitted resignation letters before leaving the service. The state accused them of deserting duties and taking up work with private American security companies in countries including Afghanistan, Iraq, Kuwait, Syria and Jordan.
The prosecution also defended the validity of the charges, rejecting the soldiers’ argument that the Director of Military Prosecutions (DMP) had to personally prepare or endorse them. Senior Assistant Director of Public Prosecution Jami Yamina argued that military law permits investigators and unit commanders to initiate charges and transmit them through the chain of command.
