Why court has set free 25 ex-soldiers jailed for life over desertion

The 25 ex- Kenya Defence Force soldiers who had been sentenced to life imprisonment for deserting service have been let free by the High Court in Mombasa.

The 25, drawn from the Kenya Navy unit, had been slapped with life imprisonment by a Military court at Mtongwe Base in Mombasa County, after they were found guilty of deserting service between 2007 and 2008.

The conviction for the offence of desertion was contrary to section 74(1)(a) as read with section 74(3)(a)(i) of the Kenya Defence Forces Act, 2012.

The soldiers, determined to fight to the end, filed an appeal before Justice J Muya, who went ahead to set aside the Court Martial sentence and set them free.

Justice Muya said 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.

He set aside the convictions for desertion and the lesser offence substituted, with the period already spent in custody being deemed sufficient punishment.

However, the State appealed the acquittal, which led to the rearrest of the 25 ex-servicemen following orders by the Court of Appeal dated March 1, 2024, that nullified Justice Muya’s consolidated judgment.

The appellate court faulted Justice Muya for failure to re-evaluate and determine each case separately and directed that each file of the convicted ex-servicemen be remitted back to the High Court for fresh hearing.

However, on September 22, 2026, Justice Wendy Micheni set aside the orders of the Court Martial.

“The conviction of each Appellant for desertion contrary to section 74(1)(a) as read with section 74(3)(a)(i) of the Kenya Defence Forces Act is hereby quashed and set aside. The sentence of life imprisonment imposed upon each Appellant is hereby quashed and set aside,” said Justice Micheni

The judge declined to enter any substituted conviction for absence without leave or any other offence and declined to order for a retrial in respect of any of the 25 ex-servicemen.

She also directed that any bond, bail or other order for release previously subsisting in the appeals be discharged.

“The Registrar shall cause the individual records in each of the twenty-five appeals to reflect the separate determination made herein and shall place the appropriate orders on each file. The proceedings are accordingly brought to an end and the file closed,” said Justice Micheni.

According to evidence, between 2007 and 2008, the 25 on several occasions and independently sought to terminate or otherwise regularise their service.

The circumstances for seeking termination varied, with some applying for discharge, whereas one who was a commissioned officer tendered his resignation.

In her judgment, Justice Micheni noted that in some cases, applications were expressly declined while there was no response in other applications before the soldiers left the service.

It was their evidence that in the course of the administrative processes, some of them surrendered military stores in their possession and were issued with clearance forms which they completed and presented to the relevant authorities.

In early 2014, some of the ex-soldiers were arrested after responding to requests by the military to present themselves at their former bases, while others who had rejoined the service through a program styled “REJAB” were thereafter arrested.

In her determination, Justice Micheni said the alleged acts of desertion occurred in 2007 and 2008 when the Armed Forces Act was in force.

She said Section 31 of that Act therefore forms the starting point in determining the substantive criminal law applicable to the alleged conduct.

“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,” she said.

According to her, the Court Martial finding was not invalid because it was short or because it failed to reproduce the form of a civil-court judgment but was deficient because it did not demonstrate that the material issues, evidence and defence had been considered and determined.

The judge said the prosecution was undertaken through an office whose statutory separation from the legal department, expressly required by section 213(6) of the Kenya Defence Forces Act, was not maintained, hence occasioning a legality of the prosecutorial authority.

“The conduct alleged against the Appellants arose in 2007 and 2008, under the Armed Forces Act. The ninety-day periods of absence had crystallised under that law long before the Kenya Defence Forces Act came into force. The transitional provisions did not authorise retrospective imposition of the penal consequences of the later Act,” said Justice Micheni.

The judge said the 25 ex-soldiers were charged and sentenced under a regime which exposed them to life imprisonment, yet the evidence did not establish active service or orders for active service at the material time.

She said the sentence therefore had no lawful foundation.

Further, she said the offence was not to be treated as pure criminal liability without consideration of the mental element and the totality of the evidence and concluded that the prosecution's burden remained proof beyond reasonable doubt.