[2023] KEHC 25319 (KLR)

Kemboi & another v Republic (Criminal Revision E298 of 2022) [2023] KEHC 25319 (KLR) (Crim) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25319 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E298 of 2022

LN Mutende, J

November 15, 2023

Between

Joshua Kemboi alias Ezekiel Kipkemboi Kirwa

1st Applicant

Kipkemboi Kirwa

2nd Applicant

and

Republic

Respondent

Ruling

1. Joshua Kemboi alias Ezekiel Kipkemboi Kirwa, the applicant, approached this court through an application dated November 30, 2022, seeking stay of proceedings in Kahawa Court Martial case No 15 of 2021. The applicant was charged with the offence of furnishing false information contrary to section 113 of the Kenya Defence Forces Act; and, making a false statement contrary to section 114 of the stated Act.

2. The charges were brought following allegations and averments that the applicant presented a fraudulently acquired KCPE certificate Serial No 3416xxx belonging to Joshua Kemboi to the recruiting officer knowing that he is not the owner so as to secure enlistment to Kenya Defence Forces (KDF).

3. Secondly, the applicant was accused of making a false statement on enlistment in attestation paper regarding his Identity which indicated his name as Joshua Kemboi Kirwa knowing his real identity was Ezekiel Kipkemboi Samoei in order to get enlistment into the KDF.

4. Having denied the charges, the trial commenced on September 22, 2022 and proceeded until December 19, 2022 when the applicant's counsel sought directions from the court on the ground that the applicant’s contract of service had expired on October 24, 2019, hence he was no longer governed by the KDF Act.

5. The prosecution advised court that the provisions of section 256 of the KDF Act were applicable and that the proceedings would not be affected by the fact of the applicant’s term having expired as the applicant would be subject to the Act for three (3) more months from the date his service term lapsed.

6. The judge/ advocate advised that the applicant’s contract was to expire in three (3) months’ time, but, according to KDF Act he was still subject to the Act for purposes of proceedings. That what was affected and subsequently stopped was such salaries and benefits the applicant received.

7. The instant revision proceedings seek to impugn the court’s decision to proceed with the matter and has been brought on grounds that: the court lacked jurisdiction to continue with the matter as insisting with continuation of the trial was done in subversion of justice hence the trial was not fair. And, that the court ought to have applied the provisions of section 209 and 210 of the KDF Act, therefore, erred in its application of the law.

8. The applicant’s case is that all trials for ex- service men should be stopped once the subject ceases to hold such employment. This with the exception of service men charged with offences under sections 72, 74 and 75 of the KDF Act. That he has been charged under section 113 of the KDF Act.

9. Lastly that he is no longer receiving a salary and has no guaranteed livelihood during his stay in custody. He contends that the decision to continue trying him is unconstitutional, illegal and irregular and he should be set free.

10. In response thereto, the respondent through colonel Symon Cheberek Yator, deposed that the applicant, a service member in the Armed Forces and not an officer, joined the KDF on 25th October, 2010 and re-engaged for a further three (3) years, a term that was to lapse on October 24, 2022. That having been proceeded against for offences under part IV of the KDF Act prior to discharge from the defence force, continues to be subject until the disposal of the charges as he earns a salary. That the trial is within the law, the court has jurisdiction and that the applicant has not demonstrated any error on correctness, legality or proprietary in the court martial proceedings.

11. This court is seized of power donated by Statute to revise subordinate court’s proceedings and orders. Where the court exercises the jurisdiction, its duty is structured and limited to correction of illegalities and material irregularities.12. Section 362 of the Criminal Procedure Code providesthat:The High court may call for and examined the records of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court.

13. This court can only seek to establish if the requirement of law has been properly upheld. It cannot be used as tool to frustrate lawful and proper proceedings or to supervise the exercise of discretion of the trial court which should always retain primary power over its own proceedings. This view was also aptly captured in the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR that is persuasive, where the court held that:“… The jurisdiction should not be invoked so as to micro-manage the Lower Courts in the conduct and management of their proceedings for the simple reason that if every ruling of the lower court and which went against a party were to be subjected to the revisionary jurisdiction of the court, floodgates would be opened and the Court would be inundated with such applications thus making it practically impossible for the Lower Courts to proceed with any case to its logical conclusion.”

14. A jurisdictional question was raised. This is a fundamental question of law as the issue is whether the Court Martial had legal authority to hear the matter at hand. It is trite that jurisdiction is everything in a matter, it ought to be raised as a preliminary point before the court so that in the event it is found not to exist the court should down its tools early enough. This is because subsequent proceedings would be a nullity and a waste of judicial time.

15. The state did attach copies of pay slips of the applicant from the Kenya Defence Forces for the period between February, 2022 until October, 2022. The applicant has not disputed the documentary evidence save that records have not been updated.

16. Section 4 of the KDF Act provides for application of the KDF Act. According to the section 4 (a) the Act applies to every member of the regular forces.

17. Section 2 defines a “service member” to mean any member of a service of the defence forces who is not an officer.

18. From the record, it is clear that the applicant was recruited into the force as a service member.

19. The applicant’s main contention is that he is no longer under the employment of the force, he was duty bound to prove the averment. (See Section 107 of the Evidence Act)

20. Section 242 of the KDF Act provides for ways of termination of service of members of regular force. It stipulates thus:The service of a member of the regular force is terminated upon—i.Retirement;ii.Resignation;iii.Termination of commission;iv.Dismissal from service; orv.Discharge from service

21. The Act also spells out how a service member would be discharged. The provision of the law (Section 242) provides that: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.

22. Section 242 (2) and (3) which are applicable enact that:a.A service member shall not be discharged unless the discharge has been authorized by order of the Service Commander or an officer authorized in that behalf.b.Every service member shall be given, on discharge, a certificate of discharge containing the prescribed particulars.

23. The applicant can only be deemed to have been discharged if there was evidence that a certificate of discharge under Section 242(3) was ultimately issued. None has been presented, therefore, by virtue of that provision law, the applicant was subject to the provisions of the Act until such time as he would be discharged.

24. What has been presented before court is clear evidence that as at the time of the issue being raised the applicant was still salaried and no process has been commenced under section 242 of the KDF Act.

25. The State referred court to section 243 of the KDF Act which is in respect of postponement of discharge or transfer pending proceedings for offences, etc, that Section provides that a service member is not entitled to be discharged or transferred to the reserve—i.At a time when that member has become liable, as a person subject to this Act, to be proceeded against for an offence under Part VI; orii.Where that member is serving a sentence of imprisonment in respect of an offence under Part VI, during the currency of the sentence.iii.……1. The provision lists several service offences, the charges in this matter refer to false information. Making false document under Section 113 and 114 of the Act are covered under Miscellaneous offences of the provision.

27. Similarly, the applicant has pointed out that the exception applies to service men charged under section 72, 74 and 75 of the KDF Act which refer to offences related to Mutiny and absence without leave. The offence is also listed under Part VI.

28. Pursuant to that provision, it is clear that the draftsman did not intend to have proceedings under the Act disrupted in the manner argued by the applicant before this court or in any other manner. In fact proceedings are prioritized to an extent that discharge (which should be immediate) or employment engagements found to remove the service man from the courts area of jurisdiction are postponed.

29. Lastly, the applicant has referred court to the provisions of section 210 of the Act which sets out the limitation period for bringing actions under the Act.

30. Section 210 (1) of the KDF Act provides that:A person shall not be tried by a court-martial for an offence under this Act, other than an offence under sections 72, 73, or 74(1)(a), unless the trial is begun within three years after the commission of the offence, subject to subsections (2) and (3).

31. The applicant has not argued that the charges against him were brought outside the stipulated period of limitation.

32. Section 209 of the KDF Act is in respect of trial of persons who have ceased to be subject to the Act but have committed offences under the Act or investigations and proceedings have been taken against them. The applicant had not been discharged and was still salaried at the time, he cannot rely on section 209. That Section does not prevent the court from proceeding with the case, as noted, members under the said category are subject to the Act.

33. The court martial is a creature of the Constitution and further established under section 160 of the KDF Act with bestows upon it jurisdiction to try any person subject to the Act for any offence under the Act. The court’s jurisdiction cannot be ousted unless by an express statutory provision or by the Constitution. There is no provision limiting or taking away the court’s jurisdiction over the issues addressed above.

34. From the foregoing, the applicant has not demonstrated any irregularity or illegality occasioned by the trial court to be corrected by this court. And, the record shows that the grounds raised in this revision were not placed before the trial court in the first place and there is nothing for the revision court to revise.

35. Accordingly, the application for revision which is bereft of merit is dismissed.

36. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLYTHROUGH MICROSOFT TEAMS AT NAIROBI,THIS 15THDAY OF NOVEMBER, 2023. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Bosire for ApplicantMs. Akunja for ODPPCourt Assistant - Mutai