[1985] KECA 22 (KLR)

REPUBLIC OF KENYA

Rotich v Republic

Court of Appeal, at Nairobi

June 10, 1985

Hancox JA, Platt & Gachuhi Ag JJA

Criminal Appeal No 23 of 1985

(Appeal from the High Court at Nairobi, Aganyanya J)

Martial Law- Whether trial under Armed Forces Act jurisdiction of Civilian Criminal Courts-S141-143 of the Armed Forces Act when applicable - Fire Arms Act (Cap 114) being in possession of ammunition without a valid certificate.

Appeals –summary rejection of appeals-Section 352 (2) of Criminal Procedure Code.

The appellant had during trial pleaded guilty to the charge of being in possession of 988 rounds of ammunitions without a valid certificate under section 4(1) of the Fire Arms Act (Cap 114) Laws of Kenya. His first appeal to the High Court was summarily rejected on the ground that it was lodged without any sufficient ground for complaint as provided under section 352 of Criminal Procedure Code as he had pleaded guilty. The appellant filed a second appeal to the Court of Appeal.

Held:

The question whether a person subject to trial under martial law for offence under Armed Forces Act (Cap 199) can also be tried by Civilian Criminal Courts depends on the provisions of the Act itself.

Appeal allowed.

June 10, 1985,Hancox JA, Platt & Gachuhi Ag JJA delivered the following Judgment.

The appellant was at the material time on retirement leave from the Kenya Army after 15 years’ service. He was charged with, and, according to the record, purported to plead guilty to, the offence of possessing a total of 988 rounds of assorted ammunition without a valid certificate under section 4(1) of the Firearms Act (cap 114) of the Laws of Kenya. He did not at that time claim to be covered by any exemption, nor do any of the exemptions listed in section 7 of that Act apply to him.

His first appeal to the High Court was summarily rejected notwithstanding that the petition of appeal to that court contained at least two points of law, namely that appellant was still subject only to military law, and that the proceedings were not held in open court. Whether either of those grounds would have succeeded does not concern us on the second appeal, because, as learned state counsel concedes, the appeal should have been properly heard and determined by the first appellate court as it does not fall within the provisions of section 352(2) of the Criminal Procedure Code (cap 75).

In the course of his submissions Major Rotich produced a letter from the Army Headquarters, his certificate of service and his testimonial, all of which support the dates between which he claimed that he was on retirement leave. He also stated that the issue voucher covering the ammunition in question, which presumably would provide him with the necessary authority to possess it, inter alia under section 26 of the Firearms Act, were taken from him by Inspector Opondo of the Kenya Police and not returned. Clearly this is a most material document which should be before the court, thought it would not of course authorize him to possess the other items of ammunition which he said in his mitigation to the magistrate that he had found hidden in a training area at Kajiado.

We would observe that although a court martial has jurisdiction to try a person subject to military law, for any civil offence under section 69 of the Armed Forces Act (cap 199), the question of whether this affects the jurisdiction of the civilian criminal courts to deal with such offences, to which all persons in Kenya normally are subject depends on the provisions of the Armed Forces Act and in particular sections 141 to 143 notably section 143, thereof. In this connection we would draw attention to the concluding words of section 133(1) of the united Kingdom Army Act 1955, which states :

133 jurisdiction of civil courts

(1) Where a person subject to military law –

(a) has been tried for an offence by a court-martial or has had an offence committed by him taken into consideration by a court-martial in sentencing, him, or

(b) has been charged with an offence under this Act and has had the charge dealt with summarily by his commanding officer or the appropriate authority,

a civil court shall be debarred from trying him subsequently for an offence Rotich v Republic

substantially the same as that offence; but except as aforesaid nothing in this Act shall be construed as restricting the jurisdiction of any civil court to try a person subject to this Act for an offence.

In the recent English case of R v Garth [1985], Law Society’s Gazette February 13, page 437, the court martial appeals court considered the reverse situation in which the appellant was tried by court martial for the offences of theft and using a false credit card. They held that despite this appellant’s transfer to the reserve he was still subject to air force law and that his plea to the jurisdiction of that court had been rightly rejected.

For these reasons we allow the appeal, quash the summary rejection of the first appeal by the High Court and return the case to the High Court with a direction to admit it to hearing and to determine it according to law.

In view of the lapse of time this should take place as soon as possible.