The identity of a Kenya Defence Forces (KDF) soldier charged, convicted and sentenced by a court martial to serve a one-year jail term for allegedly demanding a Sh400,000 bribe from a recruit, has been questioned.
Issues have also emerged over 908 days in which he was allegedly held in custody that were not factored in when the conviction and sentencing were handed down.
Sergeant Robert Kipkemoi, a Physical Training Instructor at the Recruits Training School (RTS), Eldoret, was found guilty on October 5, of two charges of soliciting the money in Londiani, Kericho county.
The soldier, as per the charge sheet, was accused of asking for the money on diverse dates between February 9 and April 11, 2021, from Joseph Kimutai Choge on the pretext that he had influenced the enlisting of his daughter - Mercy Choge - into the Kenya Defence Forces.
He was also charged with soliciting money from the recruit (Ms Choge) under the pretext he had influenced her recruitment to the force on February 9, 2021, in an exercise conducted in Londiani.
Both charges against the soldier are contrary to Section 121 of the Kenya Defence Forces Act, no. 25 of 2012.
The defendant’s advocates are now seeking his release on bail pending a hearing and determination of an appeal in the High Court seeking to overturn the conviction and sentence.
On October 5, Judge Advocate, Senior Principal Magistrate Bernard Ochoi, who presided over the court martial hearing found him guilty of both counts and sentenced the soldier to serve a six-month jail term on each count, running concurrently.
An order was also issued by the Judge for the dismissal of the soldier from the service following the conviction, which was preceded by more than two years of trial.
However, lawyers Collins Sang and Duncan Kiprono, representing the soldier, have filed an appeal at the high court seeking to overturn the sentence on many grounds including wrong identity and the magistrate usurping investigative roles instead of being a neutral arbiter.
In adducing evidence before the court, Mr Choge indicated that the accused demanded a Sh 400,000 bribe. His daughter (Mercy) contradicted him saying he did not ask for a specific amount of money, even though the two claim to have been together when the demand was made.
They stated in their testimonies that they did not report the matter to any police station since the alleged bribe money demanded was not paid to the accused soldier.
Mercy further stated that the soldier showed her a military identity card showing he was Sergent Mutai - which does not match his official records in the military and those in his (military) identification card - as tabled in the court martial.
In an affidavit filed in court, Kipkemoi avers that he was held under close arrest for 908 days without being allowed to meet his family members and that he was not allowed to access an advocate for 219 days.
He stated that while the offences he had been charged with carry a maximum sentence of two years, as per Section 121 of the Kenya Defence Forces Act, his detention had exceeded it by over six months, yet that was not factored in during sentencing.
The soldier claims that the court martial was composed of sitting members largely not approved to hear and determine the trial, conviction and sentencing of the appellant.
Filings before the high court in the appeal by the advocates of the defendant states that the trial judge/magistrate erred in law and fact by convicting and sentencing the soldier without confirming and verifying his true identity.
The argument is that the trial court martial conviction and sentence was rendered without trial proof beyond reasonable doubt on the question of the identity of the appellant.
“Robert Kipkemoi’s identity does not match with the identity of the account of prosecution one and two whose testimony account was against one Robert Mutai and also the order for committal to civil prison was issued against Robert Kipkemoi Kirwa, the identity of which is not of the appelant….” The advocates stated.
Advocate Kiprono further states that; “the trial magistrate overstepped his boundaries of an impartial, and or neutral arbiter and stepped into investigative and prosecutorial roles that clouded his judgment causing him to fall into grave error of fact and law”
“It is perplexing and clearly a travesty of justice that Col E Okello (19654) is evinced by record to have chaired the order for committal of the appellant to civil prison on an award of imprisonment by the trial court martial, which order was only signed by the trial judge advocate alone thus raising questions to its legitimacy of legal enforcement”, shows the filing in court.
The advocates state that the applicant’s case presents exceptional and unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail pending appeal.
“The applicant’s case presents a prima facie case from the totality of the circumstances that the appeal is likely to be successful on the account substantial points of law and facts to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard and determined”, they stated.
“…the applicant, since his arrest on 12th April 2021, was in custody until 5th October 2023, thus 908 days, which time the court martial ought to have considered that the applicant had served the full sentence. It is only just and expedient under the circumstances to admit the applicant to reasonable bail and bond terms and grant orders staying the judgment, conviction, and sentence by the court martial…” stated the filings in court.
