[2024] KECA 204 (KLR)

Republic v Pepela & 24 others (Criminal Appeal 64 & 66 - 89 of 2016 (Consolidated)) [2024] KECA 204 (KLR) (1 March 2024) (Judgment)

Neutral citation: [2024] KECA 204 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Criminal Appeal 64 & 66 - 89 of 2016 (Consolidated)

AK Murgor, M Ngugi & GV Odunga, JJA

March 1, 2024

Between

Republic

Appellant

and

Jeffrey Okuri Pepela

1st Respondent

Gabriel Kirigha Chawana

2nd Respondent

Reid Nyamweya

3rd Respondent

Samuel Kimani Onesmus

4th Respondent

Japheth Muriithi

5th Respondent

Ashford Chabari

6th Respondent

Polycarp Nyairo

7th Respondent

Aggrey Lanogwa

8th Respondent

Edward Odanga

9th Respondent

Paul Gichini

10th Respondent

Romano Ntongondu

11th Respondent

Leornard Kighombe

12th Respondent

Alfred Ketole

13th Respondent

Jonathan Manko Murimi

14th Respondent

George Nganga

15th Respondent

Moses Bolo

16th Respondent

Zechariah Gichoe

17th Respondent

Albert Muoki Mwololo

18th Respondent

Victor Nabwera

19th Respondent

Soud Mohamed Omar

20th Respondent

John Mutua

21st Respondent

Moses Simiyu

22nd Respondent

George Mutabari

23rd Respondent

Samuel Maingi

24th Respondent

Simon Njoroge Mbugua

25th Respondent

(Being an Appeal from a judgment of the High Court of Kenya at Mombasa (Muya J.) dated 21st August 2015 in Mombasa High Court Criminal Appeals Nos. 122 of 2014, 153 of 2014. 168 of 2014, 169 of 2014, 169 of 2014, 171 of 2014, 172 of 2014, 173 of 2014, 174 of 2014, 175 of 2014, 176 of 2014, 181 of 2014, 2 of 2015, 3 of 2015, 4 of 2015, 5 of 2015, 5 of 2015, 6 of 2015, 7 of 2015, 8 of 2015, 9 of 2015, 10 of 2015, 13 of 2015, 17 of 2015, 18 of 2015, 19 of 2015, 21 of 2015 and 22 of 2015 Criminal Appeal 153, 175, 174, 173, 171, 168, 181, 176, 169 & 172 of 2014 )

Judgment

1. This appeal arises from a decision of the High Court, as a first appellate court, in respect of 25 appeals that were filed by the respondents. The appeals were against decisions from court martial proceedings conducted at Mtongwe Navy Base- Mombasa, against the respondents who were former service men of the Kenya Defence Forces (KDF). The 25 appeals were as follows:

1. Mombasa Criminal Appeal No 64 of 2016. 2. Jeffrey Okuri Pepela, the 1st respondent, was charged with the offence of desertion contrary to section 74 (1) (a) of the Kenya Defence Forces Act 2012. The particulars of the offence were that the 1st respondent, based at Maritime Surveillance Radar Station (Masura), Malindi Station, on 23rd October 2007 absented himself without leave until he reported back on 10th March 2014.

3. The 1st respondent pleaded not guilty and the prosecution presented the evidence of 10 witnesses. Upon hearing them and considering his defence, the Court Martial, by a judgment dated 6th October 2014, sentenced the 1st respondent to life imprisonment.

4. Dissatisfied with the conviction and the sentence, the 1st respondent appealed to the High Court. The High Court, upon considering the appeal, in a judgment dated 21st August 2015, allowed the appeal, set aside both the conviction and the sentence and set the 1st respondent at liberty.

5. The appellant was aggrieved by those findings and has filed this appeal on the grounds that the learned judge was wrong to render a single judgment in respect of 26 separate appeals that were not consolidated; in failing to deliver a proper judgment in law and therefore an order for re-hearing of the respective appeals must issue; by exercising his powers under section 179 of the Criminal Procedure Code after reaching a finding that the charge was defective; in misinterpreting the provisions of section 2 of the Kenya Defence Forces Act, No. 25 of 2012 on who is considered “an enemy of the state”; in misinterpreting the provisions of section 74(2) (e) of the Kenya Defence Forces Act relating to desertion; in failing to find that the offence of desertion is a continuing offence; that the finding that the respondents were absent without official leave (AWOL) is unlawful; by failing to consider section 310 of the Kenya Defence Forces Act on the transitional and savings provisions; in contravening the provisions of section 169 of the Criminal Procedure Code by failing to render a reasoned judgment in any of the appeals; in misinterpreting the provisions of section 75(1) of the Kenya Defence Forces Act No. 25 of 2012; in failing to consider the appellant's submissions in all the respondents appeals and in computing the sentences to include the period served in remand since the time spent in remand custody does not amount to sentence served in law.

2. Mombasa Criminal Appeal No 66 of 2016. 6. Gabriel Kirigha Chawana, the 2nd respondent, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74(3)(a)(i) of the Kenya Defence Forces Act. The particulars of the offence were that the 2nd respondent absented himself from duty without leave on 17th July 2007 until he reported back on 18th February 2014.

7. The 2nd respondent pleaded not guilty and, upon considering the prosecution evidence and his defence, by a decision dated 24th February 2015, the court martial, sentenced the 2nd respondent to life imprisonment.

8. Dissatisfied with the conviction and the sentence, the 2nd respondent appealed to the High Court which, by a judgment dated 21st August 2015, allowed the appeal, set aside both the conviction and the sentence and set the 2nd respondent at liberty.

3. Mombasa Criminal Appeal No 67 of 2016. 9. Reid Nyamweya, the 3rd respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 3rd respondent absented himself from duty without leave on 2nd July 2007 until he reported back on 24th February 2014.

10. The 3rd respondent pleaded not guilty, and after considering the prosecution witness evidence and his defence, the court martial rendered a decision on 24th February 2015, where it found the 3rd respondent guilty, and sentenced him to life imprisonment.

11. Dissatisfied with the conviction and the sentence, the 4th respondent appealed to the High Court which, in a judgement dated 21st August 2015, allowed the appeal, set aside both the conviction and the sentence and set the 3rd respondent at liberty.

4. Mombasa Criminal Appeal No 68 of 2016. 12. Samuel Kimani Onesmus, the 4th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 4th respondent absented himself from duty without leave on 10th September 2007 until he reported back on 24th February 2014.

13. The 4th respondent pleaded not guilty and, after considering the prosecution witness evidence and the 5th respondent’s defence, the court martial, by a decision dated 24th February 2015, found the 5th respondent guilty and sentenced him to life imprisonment.

14. Dissatisfied with the conviction and the sentence, the 4th respondent appealed to the High Court and by a judgment dated 21st August 2015, the learned judge allowed the appeal, set aside both the conviction and the sentence and set the 4th respondent at liberty.

5. Mombasa Criminal Appeal No 69 of 2016. 15. Japheth Muriithi, the 5th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 5th respondent absented himself from duty without leave on 10th September 2007 until he reported back on 24th February 2014.

16. The 5th respondent pleaded not guilty and after considering the prosecution witness evidence and the 5th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 5th respondent guilty and sentenced him to life imprisonment.

17. Dissatisfied with the conviction and the sentence, the 5th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 5th respondent at liberty.

6. Mombasa Criminal Appeal No. 70 of 2016. 18. Ashford Chabari, the 6th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces. The particulars of the offence were that the 6th respondent absented himself from duty without leave on 12th October 2007 until he reported back on 19th September 2013.

19. The 6th respondent pleaded not guilty and after considering the prosecution witness evidence and the 6th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 6th respondent guilty and sentenced him to life imprisonment.

20. Dissatisfied with the conviction and the sentence, the 6th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 6th respondent at liberty.

7. Mombasa Criminal Appeal No 71 of 2016. 21. Polycarp Amenya Nyairo, the 7th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 7th respondent absented himself from duty without leave on 18th November 2007 until he reported back on 24th February 2014.

22. The 7th respondent pleaded not guilty and after considering the prosecution witness evidence and the 8th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 7th respondent guilty and sentenced him to life imprisonment.

23. Dissatisfied with the conviction and the sentence, the 7th respondent appealed to the High Court and, in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 7th respondent at liberty.

8. Mombasa Criminal Appeal No 72 of 2016. 24. Aggrey Lanogwa, the 8th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 8th respondent absented himself from duty without leave on 20th July 2007 until he reported back on 24th February 2014.

25. The 8th respondent pleaded not guilty and after considering the prosecution witness evidence and the 8th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 8th respondent guilty and sentenced him to life imprisonment.

26. Dissatisfied with the conviction and the sentence, the 8th respondent appealed to the High Court and in judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 8th respondent at liberty.

9. Mombasa Criminal Appeal No 73 of 2016. 27. Edward Odanga, the 9th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 9th respondent absented himself from duty without leave on 24th September 2007 until he reported back on 5th February 2014.

28. The 9th respondent pleaded not guilty and after considering the prosecution witness evidence and the 10th respondent’s defence the court martial, in a decision dated 24th February 2015, found the 9th respondent guilty and sentenced him to life imprisonment.

29. Dissatisfied with the conviction and the sentence, the 9th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 9th respondent at liberty.

10. Mombasa Criminal Appeal No 74 of 2016. 30. Paul Gichini, the 10th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Force Act. The particulars of the offence were that the 10th respondent absented himself from duty without leave on 9th July 2007 until he reported back on 19th February 2014.

31. The 10th respondent pleaded not guilty and after considering the prosecution witness evidence and the 11th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 10th respondent guilty and sentenced him to life imprisonment.

32. Dissatisfied with the conviction and the sentence, the 10th respondent appealed to the High Court and, in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 10th respondent at liberty.

11. Mombasa Criminal Appeal No 75 of 2016. 33. Romano Ntongondu, the 11th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1) (a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 11th respondent absented himself from duty without leave on 4th June 2007 until he reported back on 18th February 2014.

34. The 11th respondent pleaded not guilty and after considering the prosecution witness evidence and the 11th respondent’s defence, the court martial in a decision dated 24th February 2015, found the 11th respondent guilty and sentenced him to life imprisonment.

35. Dissatisfied with the conviction and the sentence, the 11th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 11th respondent at liberty.

12. Mombasa Criminal Appeal No 76 of 2016. 36. Leornard Kighombe, the 12th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 12th respondent absented himself from duty without leave on 3rd August 2007 until he reported back on 18th February 2014.

37. The 12th respondent pleaded not guilty and after considering the prosecution witness evidence and the 12th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 12th respondent guilty and sentenced him to life imprisonment.

38. Dissatisfied with the conviction and the sentence, the 12th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 12th respondent at liberty.

13. Mombasa Criminal Appeal No 77 of 2016. 39. Alfred Ketole, the 13th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 13th respondent absented himself from duty without leave on 6th December 2007 until he reported back on 18th February 2014.

40. The 13th respondent pleaded not guilty and after considering the prosecution witness evidence and the 13th respondent’s defence the court martial in a decision dated 24th February 2015, found the 13th respondent guilty and sentenced him to life imprisonment.

41. Dissatisfied with the conviction and the sentence, the 13th respondent appealed to the High Court and, in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 13th respondent at liberty.

14. Mombasa Criminal Appeal No 78 of 2016. 42. Jonathan Manko Murimi, the 14th respondent, a former service member of the Kenya Defence Forces, was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 14th respondent absented himself from duty without leave on 17th October 2007 until he reported back on 25th February 2014.

43. The 14th respondent pleaded not guilty and after considering the prosecution witness evidence and the 14th respondent’s defence the court martial, in a decision dated 24th February 2015, found the 14th respondent guilty and sentenced him to life imprisonment.

44. Dissatisfied with the conviction and the sentence, the 14th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 14th respondent at liberty.

15. Mombasa Criminal Appeal No 79 of 2016. 45. George Nganga, the 15th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 15th respondent absented himself from duty without leave on 1st October 2007 until he reported back on 20th February 2014.

46. The 15th respondent pleaded not guilty and after considering the prosecution witness evidence and the 15th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 15th respondent guilty and sentenced him to life imprisonment.

47. Dissatisfied with the conviction and the sentence, the 15th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 15th respondent at liberty.

16. Mombasa Criminal Appeal No 80 of 2016. 48. Moses Bolo, the 16th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 16th respondent absented himself from duty without leave on 28th August 2007 until he reported back on 18th February 2014.

49. The 16th respondent pleaded not guilty and after considering the prosecution witness evidence and the 16th respondent’s defence, the court martial in a decision dated 24th February 2015, found the 16th respondent guilty and sentenced him to life imprisonment.

50. Dissatisfied with the conviction and the sentence, the 16th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 16th respondent at liberty.

17. Mombasa Criminal Appeal No 81 of 2016. 51. Zechariah Gichoe, the 17th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 17th respondent absented himself from duty without leave on 18th December 2007 until he reported back on 11th March 2014.

52. The 17th respondent pleaded not guilty and after considering the prosecution witness evidence and the 17th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 17th respondent guilty and sentenced him to life imprisonment.

53. Dissatisfied with the conviction and the sentence, the 17th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 17th respondent at liberty.

18. Mombasa Criminal Appeal No 82 of 2016. 54. Albert Muoki Mwololo, the 18th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 18th respondent absented himself from duty without leave on 27th July 2007 until he reported back on 26th February 2014.

55. The 18th respondent pleaded not guilty and after considering the prosecution witness evidence and the 18th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 18th respondent guilty and sentenced him to life imprisonment.

56. Dissatisfied with the conviction and the sentence, the 18th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 18th respondent at liberty.

19. Mombasa Criminal Appeal No 83 of 2016. 57. Victor Nabwera, the 19th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 19th respondent absented himself from duty without leave on 18th March 2008 until he reported back on 25th February 2014.

58. The 19th respondent pleaded not guilty and after considering the prosecution witness evidence and the 19th respondent’s defence, the court martial, in a decision dated 24th February 2015, found the 19th respondent guilty and sentenced him to life imprisonment.

59. Dissatisfied with the conviction and the sentence, the 19th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 19th respondent at liberty.

20. Mombasa Criminal Appeal No 84 of 2016. 60. Soud Mohamed Omar, the 20th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 20th respondent absented himself from duty without leave on 17th October 2007 until he reported back on 25th February 2014.

61. The 20th respondent pleaded not guilty and after considering the prosecution witness evidence and the 20th respondent’s defence the court martial, in a decision dated 24th February 2015, found the 20th respondent guilty and sentenced him to life imprisonment.

62. Dissatisfied with the conviction and the sentence, the 20th respondent appealed to the High Court and in the judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 20th respondent at liberty.

21. Mombasa Criminal Appeal No 85 of 2016. 63. John Mutua, the 21st respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 21st respondent absented himself from duty without leave on 11th September 2007 until he reported back on 17th February 2014.

64. The 21st respondent pleaded not guilty and after considering the prosecution witness evidence and the 21st respondent’s defence the court martial in a decision dated 24th February 2015, found the 21st respondent guilty and sentenced him to life imprisonment.

65. Dissatisfied with the conviction and the sentence, the 21st respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 21st respondent at liberty.

22. Mombasa Criminal Appeal No 86 of 2016. 66. Moses Simiyu, the 22nd respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 22nd respondent absented himself from duty without leave on 8th October 2007 until he reported back on 25th February 2014.

67. The 22nd respondent pleaded not guilty and after considering the prosecution witness evidence and the 22nd respondent’s defence the Court Martial by a judgment dated 24th February 2015, found the 22nd respondent guilty and sentenced him to life imprisonment.

68. Dissatisfied with the conviction and the sentence, the 22nd respondent appealed to the High Court and in judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 22nd respondent at liberty.

23. Mombasa Criminal Appeal No 87 of 2016. 69. George Mutabari, the 23rd respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 23rd respondent absented himself from duty without leave on 8th October 2007 until he reported back on 18th February 2014.

70. The 23rd respondent pleaded not guilty and after considering the prosecution witnesses’ and the 23rd respondent respondent’s defence the court martial in a decision dated 24th February 2015, found the 23rd respondent guilty and sentenced him to life imprisonment.

71. Dissatisfied with the conviction and the sentence, the 8th respondent appealed to the High Court and in the judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 23rd respondent at liberty.

24. Mombasa Criminal Appeal No 88 of 2016. 72. Samuel Maingi Malombe, the 24th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 24th respondent absented himself from duty without leave on 15th September 2007 until he reported back on 18th February 2014.

73. The 24th respondent pleaded not guilty and after considering the prosecution witness evidence and the 24th respondent’s defence, the court martial in a decision dated 24th February 2015, found the 24th respondent guilty and sentenced him to life imprisonment.

74. Dissatisfied with the conviction and the sentence, the 24th respondent appealed to the High Court and in a judgment dated 21st August 2015, the court allowed the appeal, set aside both the conviction and the sentence and set the 24th respondent at liberty.

25. Mombasa Criminal Appeal No 89 of 2016. 75. Simon Njoroge Mbugua, the 25th respondent, a former service member of the Kenya Defence Forces was charged with the offence of desertion contrary to section 74 (1)(a) as read together with section 74 (3) (a) (i) of the Kenya Defence Forces Act. The particulars of the offence were that the 25th respondent absented himself from duty without leave on 6th July 2007 until he reported back on 20th February 2014.

76. The 25th respondent pleaded not guilty and after considering the prosecution witness evidence and the 25th respondent’s defence the court martial in a decision dated 24th February 2015, found the 25th respondent guilty and sentenced him to life imprisonment.

77. Dissatisfied with the court martial decisions, the 1st to 25th respondents, lodged separate appeals in the High Court in HCCRA Nos. 153 of 2014, 4 of 2015, 3 of 2015,181 of 2014,13 of 2015 ,19 of 2015,18 of 2015,22 of 2015 ,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 2015,22 of 2015,23 of 2015,24 of 2015,25 of 2015 ,7 of 2015 ,6 of 2015,168 of 2014,171 of 2014 ,176 of 2014 and 172 of 2014 respectively. In a judgment dated 21st August 2015, the court allowed their appeals, set aside both the convictions and the sentences and set the respondents at liberty.

78. The appellant was aggrieved by the judgment of the High Court, and filed appeals to this Court. In Mombasa Criminal Appeal No. 64 of 2016 against the 1st respondent, on grounds that the learned Judge was in error in law in; rendering a single judgment in twenty five (25) separate appeals that were not consolidated; failing to deliver a proper judgment in law, and therefore an order for re-hearing of the respective appeals must issue; by exercising his powers under section 179 of the Criminal Procedure Code, whilst he had made the finding that the charge was defective; misinterpreting the provisions of section 2 of the Kenya Defence Forces Act, No. 25 of 2012 on who is “an enemy of the state”; in misinterpreting the provisions of section 74(2) (e) of the Kenya Defence Forces Act relating to desertion; failing to find that the offence of desertion is a continuing offence, and further, that the finding that the respondents were absent without official leave (AWOL) is unlawful; failing to consider section 310 of the Kenya Defence Forces Act relating to transitional and savings provisions; in contravening the provisions of section 169 of the Criminal Procedure Code by failing to render a reasoned judgment in any of the appeals; misinterpreting the provisions of section 75(1) of the Kenya Defence Forces Act No. 25 of 2012; failing to consider the appellant’s submissions in all the respondents’ appeals and by computing the sentence to include the period served in remand custody which time does not amount to sentence served in law.

79. In Mombasa Criminal Appeals No. 66 to 89 of 2016, the grounds were that the learned Judge erred in law: by failing to render judgments in all the appeals. The appellant sought an order that a declaratory judgment be granted by this Court that no judgment was rendered in respect of those appeals; and further that, the 1st appellate court failed in its duty to re-evaluate and re-examine the subordinate courts findings thereby arriving at a wrong decision; that there being no judgment in the appeals, an order for re-hearing of the appeal to issue.

80. Learned counsel for the appellant and the respondents filed written submissions. When the appeal came up for hearing on a virtual platform, learned counsel for the State, Mr. Yamina together with Col. Ngatia, appeared for the appellant. Learned counsel Mr. Kamunde appeared for the 2nd, 5th, 6th, 11th, 12th, 20th, and 23rd respondents, learned counsel Mr. Odhiambo appeared for the 3rd, 4th, 7th, 9th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 22nd, and 24th respondents, while learned counsel Mr. Kabebe held brief for Mr. Gichiri for the 10th respondent. The 1st, 8th, 21st, 22nd and 25th respondents were not represented, and were not in attendance, but Mr. Yamina informed the Court that they were properly served through a notice published in the daily Nation newspaper on 25th August 2023.

81. Highlighting the appellant’s submissions, Mr. Yamina stated that the main grievance against the decision was that the High Court failed in its duty to independently and thoroughly evaluate the decision of the court martial and in so doing, arrived at the wrong conclusion; and that the learned Judge failed to review the factual findings and conclusions in respect of the individual appeals. Furthermore, the consolidation at the appellate stage of all 25 appeals denied the High Court an opportunity to assess the case of each of the respondent separately, yet they had been charged, tried and convicted individually; that for instance, the court was required to interrogate the facts to ascertain whether the respondents absented themselves for a period of 90 days or more; that the court martial interrogated whether the respondents were firstly, absent without leave, and secondly, whether it was for more than the 90 days stipulated by section 75 (1) of the Kenya Defences Forces Act; that further, the court failed to consider the reason for the respondents’ resignation, which included, inter alia, that the respondents had obtained international employment, hence, the need to resign from service. Counsel pointed out that the respondents were not discharged at the time, or by the time of leaving; that the High Court should have interrogated section 257 of the Kenya Defence Forces Act which retained section 80 of the Armed Forces Act (repealed) which required all servicemen to be discharged, and until such discharge, they remained in the service.

82. Counsel urged that we re-evaluate all the records of appeal, which the High Court had failed to do, as it had failed to conduct a critical evaluation of the evidence, and to subject each of the appeals to a re-examination of the evidence as required by law, before reaching an independent conclusion; that as a result, the court was wrong in finding that there was no evidence relied upon by the court martial to enable it to have convicted the respondents for the offense of desertion. Counsel submitted that this Court should provide guidance to the court martial on the requirements necessary to reach a finding of desertion on the one hand and Absent Without Leave (AWOL) on the other; that the judgment amounted to a miscarriage of justice as it failed to independently examine and evaluate the evidence, particularly since each of the respondents deserted under circumstances that were different from each other.

83. It was also submitted that the High Court further misdirected itself by consolidating the appeals suo moto and rendering a single judgment in respect of all the appeals, yet the charges were separate, and each of the respondents were tried individually and separately, particularly in view of their having been committed on different dates and times and under varying circumstances; that further, the defences by each of the accused persons were not a replica of each other in the strict sense; that the Judge neither invited any representations from counsels for the appellant or the respondents, and before delivering a consolidating judgment, the appellate court ought to have inquired into the suitability of consolidation, by applying the relevant principles. The case of Prem Lala Nahata & Another vs Chandi Prasad Sikaria Case No. 446 of 2007, Supreme Court of India, was relied on for the proposition that jurisdiction to consolidate arises where there are two or more matters or causes pending in the court, and it appears to the court that some common questions of law of fact have arisen in both or all the suits, or that the rights to the reliefs claimed in the suits are in respect of or arise out of the same transaction or series of transactions.

84. Consequently, it was submitted that, the High Court judgment had left the court martial without certainty on the proper position of the law on the issues raised in respect of all the appeals and therefore an order for rehearing of the appeals would be appropriate to rectify the errors and enable parties the opportunity to ventilate the issues before this Court on a second appeal, if need be.

85. In their submissions, learned counsel Mr. Odhiambo for the 3rd, 4th, 7th, 9th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 22nd, and 24th respondents submitted that the first appellate judge did not at any point consolidate the cases and that no evidence was provided to prove that there was an order for consolidation. Counsel submitted that all the grounds of appeal raised by the respondents in their respective appeals were similar to each other and that the judge not only properly re-evaluated the evidence, but also addressed all of the grounds in the appeals; that therefore, no prejudice was occasioned to the appellant in the delivery of one judgment that addresses all the issues raised in the appeals; that the High Court having rendered a proper judgment in each appeal, there are no compelling reasons why this Court should order a rehearing of the appeals. Counsel prayed that the preliminary objection be allowed.

86. In their submissions, learned counsel for the 2nd, 5th, 6th, 11th, 12th, 20th and 23rd respondents, Mr. Kamunde, submitted that the judgment delivered from the consolidated appeals arose from the same series of transactions; that the issues of both fact and law that arose were homologous and therefore rendering separate hearings and judgments was unnecessary as the evidentiary documents filed were of similar nature, so that consolidation would eliminate any form of duplicity and ease the court’s determination of the issues and save precious judicial time and resources. Counsel further submitted that the judge re-evaluated and re-examined the court martial findings by chronologically stating the charge of desertion against the respondents, the outcome of the court martial decision, the conviction, and finally, the sentence of life imprisonment.

87. Counsel further submitted that all the matters were heard and determined and that the appellant was merely forum shopping for a retrial of the cases. The decisions in the cases of Odinga and 16 others vs Ruto & 10 Others; Law Society of Kenya & 4 Others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007, E008 of 2022 (Consolidated) (2022) KESC 54 (KLR) and Petition No. 14 of 2013 Law Society of Kenya vs Center for Human Rights and Democracy and 12 Others (2014) eKLR were cited in support of the propositions that consolidation of suits is to facilitate the efficient, and expeditious disposal of disputes and provide a framework for the fair and impartial dispensation of justice.

88. Learned counsel for the 10th respondent, Mr. Kabebe, submitted that the appeals were consolidated and heard back to back in a consolidated file and in a consolidated manner during the hearing and not when the judgment was rendered; that the cases against all the respondents were similar in all material facts and that the law applicable was also the same; that the learned judge properly evaluated and re-examined the court martial findings and came up with his own independent decision in respect of the charges facing all the respondents; that the learned judge’s evaluation and re-examination of the evidence was proper, and as a result the judge reached the right decision.

89. In the course of the proceedings, by way of a Notice of Preliminary Objection dated 28th April 2023, learned counsel for the 2nd, 5th, 6th, 11th, 12th, 20th and 23rd respondents raised the following;1. That the Appellant’s case is defective as it is in violation of Section 361 of the Criminal Procedure Code, Chapter 75 Laws of Kenya that restricts courts of second appeal to matters of law only.2. That this Court lacks jurisdiction to hear this matter on questions of fact hence the same is a defective suit.

90. Pursuant to the directions of this Court issued on 15th May 2023, it was ordered that the Preliminary Objection be argued orally, within the appeal.

91. In his reply, Mr. Yamina submitted that in the judgment, the High Court applied section 179 of the Criminal Procedure Code to set aside the convictions for desertion and substituted this with conviction for absent without leave (AWOL) under section 75 (1) of the Kenya Defence Forces Act; that the sentence specified for the offence of desertion which is discretionary is life imprisonment and for that of absent without leave (AWOL) is for a period not exceeding two years; that the High Court failed to independently and thoroughly evaluate the decision of the trial court martial and in so doing arrived at wrong conclusions of law and missed the opportunity to review the factual findings of the court martial and the ensuing conclusions on law and fact.

92. Responding to the preliminary objection counsel submitted that, where there was a misapplication of law on findings of fact, then the issue becomes a question of law; that the duty of the High Court to re-evaluate the evidence is an issue of law. Counsel urged that this Court determine whether the High Court properly evaluated the facts and arrived at the correct decision; that further, desertion as an offence is not punishable by life imprisonment, unless such desertion occurred during active service.

93. Responding to the preliminary objection Mr. Kamunda, counsel submitted that under section 361 (a) of the Criminal Procedure Code, a second appeal must only argue points of law, and that the issues raised in the appeals were issues of fact and could not be determined by this Court.

94. We have considered the appeal, the parties’ rival submissions and the law. These are second appeals where this Court’s mandate is limited by section 361(1) (a) of the Criminal Procedure Code to consider issues of law only, unless it is demonstrated that the two courts below considered matters they ought not to have considered or that they failed to consider matters they should have considered or that, looking at the evidence as a whole, they were plainly wrong in their decision. In that event, such omissions or commissions would be treated as matters of law entitling this Court to interfere with the decision in such appeals. This Court therefore has a duty to pay homage to concurrent findings of fact made by the two courts below, unless such findings are based on no evidence at all, or on a perversion of the evidence, or unless, on the totality of the evidence, no reasonable tribunal, properly directing itself, would arrive at such findings, in which event, the decision is bad in law, thus entitling this court to interfere. See Nyale vs Republic (Criminal Appeal 54 of 2021) [2023] KECA 1081 (KLR) and Rashid vs Republic (Criminal Appeal 90 of 2021) [2023] KECA 596 (KLR).

95. Given the mandate of this Court on a second appeal, the issues that fall for determination are:i.Whether the appeals raise issues of law;ii.Whether the 1st appellate court rightly consolidated the appeals;iii.Whether the trial Judge failed to properly re-evaluate the evidence on record; andiv.Whether the prosecution proved its case to the required standard.

96. We will begin by addressing the preliminary objection on whether, being a second appeal, this appeal is rightly before this Court.

97. Pronouncing itself on this Court’s jurisdiction as to what constituted “matters of law” in a second appeal in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji and 3 others [2014] eKLR the Supreme Court stated thus:“(a)the technical element: involving the interpretation of a constitutional or statutory provision;b.the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record; andc.the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.”

98. Applying this criteria to the appeals that are before us, in Mombasa Criminal Appeal No 64 of 2016, the grounds are to the effect that the learned judge was wrong in law in: rendering a single judgment in 25 separate appeals that were not consolidated; in failing to deliver a proper judgment in law and therefore an order for re-hearing of the respective appeals to issue; in exercising his powers under section 179 of the Criminal Procedure Code, whilst he had made a finding that the charge was defective; in misinterpreting the provisions of section 2 of the Kenya Defence Forces Act on who is “an enemy of the state”; in misinterpreting the provisions of section 74(2) (e) of the Kenya Defence Forces Act on desertion; in failing to find that the offence of desertion is a continuing offence, and wrongly finding that the respondents were absent without official leave (AWOL); in failing to consider section 310 of the Kenya Defence Forces Act relating to the transitional and savings provisions; in contravening the provisions of section 169 of the Criminal Procedure Code in failing to render reasoned judgments in any of the appeals; in misinterpreting the provisions of section 75(1) of the Kenya Defence Forces Act; in failing to consider the appellant’s submissions in all the respondents appeals and in computing the sentence to include the period served in remand since the time spent in remand custody does not amount to sentence served in law.

99. In Mombasa Criminal Appeals No 66 - 89 of 2016, the grounds of appeal were that the learned judge erred in law: in failing to render a judgment in the High Court appeals and therefore a declaratory judgment be granted by this Court that there is no judgment in the matters; in failing in its duty to re- evaluate and re-examine the court martial findings thereby arriving at a wrong decision and that there being no judgment in the different appeals, an order for re-hearing of the 25 appeals to issue.

100. When the elements set out in the Supreme Court case of Gatirau Peter Munya vs Dickson Mwenda Kithinji and 3 others (supra) are applied to the grounds of appeal, there can be no question that it is concerned with matters of law. For instance, questions for interpretation of section 2, section 74(2) (e) and section 75(1) of the Kenya Defence Forces Act among other provisions have been posed that this Court is required to construe. Since interpretation of statutory provisions, which are considered technical elements, are matters of law, then the interpretation of the aforesaid provisions being matters of law would render the appeal eligible for hearing by this Court. Additionally, it is observed that the main ground of appeal against the 25 respondents is that the High Court failed to carry out its duty to re-evaluate and re-analyse the evidence that was before the court martial and arrive at its own independent conclusions.

111. Whilst discussing the duty of re-evaluation of a first appellate court, this Court in the case of Jonas Akuno O’Kubasu vs Republic [2000] eKLR held that:“It is correct that on first appeal the appellant is entitled to have the appellate court’s own consideration and view of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the material before the judge or magistrate with such other material as it may decide to admit. The appellate court must make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it…”

112. Given the foregoing guidance, it cannot be gainsaid that, where a complaint has been raised that the High Court failed in its duty to re-evaluate the evidence or failed to consider the evidence afresh and by so doing, failed to arrive at its own independent conclusions, then without question, a matter of law can be said to have arisen, that would warrant ventilation before this Court. As will be seen below, since there is a question of dereliction of duty by the High Court to evaluate the evidence on the record, this is a matter of law that falls squarely within the mandate of this Court’s jurisdiction as a second appellate court. Having so found, for the aforesaid reasons the preliminary objection fails.

113. The next issue is whether the 1st appellate court rightly delivered a single judgment in the respondents’ appeals against the decisions of the court martial. As seen above, the 25 appeals arose from nine court martial verdicts, and each appeal set out its own peculiar grounds.

114. When the appeals came up in the High Court on 13th February 2015, the record of Mombasa Criminal Appeal No 64 of 2016 reads:“CoramHon Muya, JCourt clerk Buoro Steve Muteti for the State Magolo for the AccusedMr. Muteti: We can take a date for hearing but not for consolidation Mr. Magolo: We prefer that we be heard without consolidation”.

115. It is clear from the above that there was to be no consolidation of the appeals and as a result, no order for consolidation was rendered by the court. However, counsel for the respondents have argued that though there was no order for consolidation, the Judge was entitled to exercise his discretion to consolidate the matters and deliver one judgment in respect of all the appeals.

116. In the instant case, it is not disputed that there was no order for consolidation of all the appeals, and the record does not disclose any such order. On this premises, it was expected that the learned Judge would render separate judgments in respect of each appeal. Instead, the Judge went ahead to render a single judgment that did not determine any of the 25 appeals. This would mean that, contrary to the requirements of section 169 (1) of the Criminal Procedure Code, there was no determination or pronouncements made by the court on the grounds raised by each of the respondents in relation to their peculiar facts. Section 169(1) specifies that:“Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it…”

117. Emphasising on the mandatory requirements of a judgment as stipulated by section 169 (1), this Court in the case of Kungu vs Republic (Criminal Appeal 103 of 2018) [2023] KECA 1452 (KLR) observed:“What that section stipulates is not a mechanical and mathematical formulae for writing a judgment. It is, rather, a substantive requirement that is aimed at ensuring that a court has analyzed and weighed the prosecution and defence evidence in its totality rather than each separately and in isolation.” (emphasis ours)

118. Similarly, in the case of Geoffrey Muchugia Gitonga & another vs Republic [2020] eKLR it was observed that:“To this we can only add that judgment writing is an art. The building blocks are provided by section 169 aforesaid. It cannot therefore entail a simple copy-and-paste exercise of the evidence recorded and pleadings. The Judge must analyze the evidence, determine what is and what is not important in the context of the case, analyze it along with submissions, distil the important and relevant points, apply the applicable law to the evidence and then present all of it as a determination of the issue at hand in a manner that is easily understood, not only by judges, judicial officers and advocates but by a broad audience.”

119. In the instant case, it is not disputed that, the appeals, though similar, raised issues that differed when considered within the context of each case. Yet, a consideration of the impugned judgment shows that it did not set out, “…the point or points for determination, the decision thereon and the reasons for the decision, …” in all the cases. There was no consideration of the facts and evidence adduced in each appeal, but more profoundly, notwithstanding a judgment was delivered, there was no determination of each appeal, with the result that no judgments were delivered in each case.

120. We would add that, had the Judge issued a single judgment, where all issues in each appeal was exhaustively addressed so that it could be seen to have complied with all the requirements of section 169 (1) for each case, the Judge would not have been faulted for delivering such single judgment. But having failed to comply with the strictures of section 169 (1), the learned Judge misdirected himself by failing to render decisions in the 25 appeals as required by law. Consequently, to the extent that the judgment did not determine any of the appeals, it was rendered a nullity, and we so find.

121. This brings us to the next issue which is whether the High Court discharged its duty of revaluating the evidence in the appeals.

122. This Court in the case of Wambui vs Republic (Criminal Appeal 102 of 2016) [2019] KECA 906 (KLR) held that:“A first appeal always proceeds by way of re-hearing based on the evidence on record and an appellant is therefore entitled to expect that the first appellate court will go beyond a mere rehashing of what is on record or a repetition of the findings of the trial court.23. It is required to and must be seen to have, consciously and deliberately subjected the entire evidence to thorough scrutiny so as to arrive at its own independent conclusions on the factual issues in contention, and to determine on its own, the guilt or otherwise of the appellant, the only limitation to its task being a remembrance that it is without the advantage, enjoyed by the trial court, of seeing and observing the witnesses as they testified, for which it must make due allowance. See Pandya v Republic [1957] EA 336 Okeno v Republic [1972] EA 32. ”

123. Further, in the case of Joseph Njuguna Mwaura & 2 others vs Republic [2013] eKLR a five judge bench of this Court concluded that:“It is commonplace that the first appellate court is mandated to reconsider and re-evaluate the evidence on record, bearing in mind that it did not see or hear the witnesses, before making a determination of its own. See Okeno v R [1972] EA. 32, Mohamed Rama Alfani & 2 Others vs Republic, Criminal Appeal No. 223 of 2002. Failure to properly re-evaluate the evidence on record would be a serious omission on the part of the first appellate court, and may warrant interference by this Court.” (emphasis ours).

124. As indicated, the 25 appeals arose out of different court martial verdicts against each of the respondents delivered on 6th October 2014 for the 1st respondent, on 24th February 2015 for the 2nd, 3rd, 4th ,7th, 8th , 9th and 10th respondents; on 12th February 2015 for the 5th and 6th respondents; on 28th January 2015 for the 11th, 12th, 13th, 21st and 23rd respondents; on 15th January 2015 for the 14th and 15th respondent; on 7th January 2015 for the 16th ,17th and 19th respondents; on 26th January 2015 for the 18th respondent; on 21st November 2014 for the 22nd respondent; 19th November 2014 for the 24th respondent and 28th November 2014 for the 25th respondent. Each respondent was found guilty and sentenced to life imprisonment in their respective case. It is also apparent from the record that each case arose from different transactions and was based on its own set of facts, in that, the alleged offences covered different periods and occurred on different dates; the evidence adduced differed from one case to another, with each trial being conducted separately and individually, whereafter a decision was rendered in each case.

125. Our examination of the judgment, when considered alongside the evidence on record, would lead us to conclude that the judge did not in fact re-evaluate the record in each of the respondents’ appeals. We say this because, firstly, no reference at all was made in the judgment to any of the verdicts, nor were any of the respondents’ cases considered in relation to their appeals. Essentially, the purport of the 1st appellate court’s judgment cannot therefore be discerned. Secondly, no facts or evidence are disclosed. More particularly, though the record shows that in each case different witnesses testified, and there was documentary evidence adduced before the court martial by both the prosecution and the defence, no reference was made to this in the judgment, with the result that, no re-analysis or re-examination of the evidence was undertaken. Third, the judgment does not show that the learned judge weighed out the prosecution evidence against that of the defence so as to arrive at its own independent conclusion in each case. And finally, notwithstanding the different verdicts in respect of each respondent, there is nothing in the judgment pointing to an analysis of the concerned verdict, to determine whether the High Court found that the court martial properly applied the law, and reached the right conclusion in respect of each respondent’s guilt.

126. In view of the foregoing, we agree with the appellant that the first appellate court failed in its duty to re-evaluate the evidence on the record in each of the respondents’ appeals so as to reach its own independent conclusions. As a result of the glaring deficiencies, we find of necessity to declare the 1st appellate court’s judgment a nullity.

127. As concerns the final issue, in view of our having declared the judgment a nullity, the question of whether the prosecution proved its case to the required standard falls away, and we need not therefore determine the issue.

128. Having reached the conclusion that we have, the question that now arises is whether we should order a rehearing of the appeal as urged by the appellant.

129. In laying a basis for a rehearing of appeals such as in the instant appeal, this Court in the case of Mwambega Allan Mwajimbo vs Republic [2016] eKLR set out factors that ought to be considered thus:“Whether or not to order a re-trial or a re-hearing of the appeal depends on the facts and circumstances of each case. A re-hearing will be ordered where the interests of justice so demand. Among the factors to be considered include whether a re-trial will occasion the appellant an injustice, whether there are illegalities or defects in the original trial, the length of time that has elapsed since the arrest and trial of the appellant, whether the mistake necessitating rehearing was of the prosecution’s making or of the court’s, and availability of witnesses, among others.In this case, the mistake necessitating a re-hearing was exclusively of the court’s making. No witnesses will be required since a re-hearing in the High Court will entail re-evaluation and re-appraisal of the evidence recorded by the trial court. 13 years have elapsed since the trial began.”

130. Bearing the aforementioned considerations in mind, in the instant appeals, our view is that a rehearing is necessitated by the failure of the High Court to render judgments in each of the respondents’ appeals as required by law. Additionally, since the appeals arise from court martial proceedings, a rehearing will involve the re-assessment and re-evaluation of the evidence on record, and therefore the question of attendance by witnesses does not arise. Given the foregoing, we consider that the order that best lends itself in the circumstances, is a rehearing of the appeals against the court martial verdicts in each of the respondents’ cases.

131. Consequently, we allow the appeal pursuant to section 361(2) of the Criminal Procedure Code and make the following orders:1. The judgment dated 21st August 2018 is hereby declared a nullity;2. The appeals specified herein are remitted back to the High Court for rehearing by another judge other than the judge that heard the appeals; and3. The re-hearing of the appeals should be expedited and determined on a priority basis, having regard to the period that has so far elapsed.It is so ordered.

DATED AND DELIVERED AT MOMBASA THIS 1ST DAY OF MARCH, 2024A. K. MURGOR...............................JUDGE OF APPEALMUMBI NGUGI...............................JUDGE OF APPEALG. V. ODUNGA...............................JUDGE OF APPEALI certify that this is a True copy of the originalDEPUTY REGISTRAR