Erastus Hezbon Otieno v Director of Military Prosecutions & another [2020] KECA 390 (KLR)
The bottom line
#The Court of Appeal refused to halt a military officer's court martial, ruling that showing an appeal is arguable alone is not enough—you must also prove it becomes worthless without a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable; it is arguable whether the jurisdiction of the Court Martial has been ousted by the Defence Forces Standing Orders Chapter 19, Paragraphs 3, 4 and 5 where civilians, civilian property and civilian accomplices are involved
The Court applied the settled test that an arguable appeal need not succeed but must not be frivolous, and that it must not make definitive findings of fact or law at the interlocutory stage lest it embarrass the bench hearing the main appeal. A single bona fide arguable ground suffices. The Court found the jurisdictional challenge concerning civilians and civilian accomplices raised such a ground but deliberately declined to say more.
Whether the appeal would be rendered nugatory if stay is denied
The appeal will not be rendered nugatory if the orders sought are not granted, because the Court Martial case has not been determined and an appeal lies to the High Court and other superior courts on conviction and/or sentence under Section 186(1)(a) of the Kenya Defence Forces Act
Factors rendering an appeal nugatory must be considered case by case, weighing the conflicting claims of both parties. Here, the underlying Court Martial proceedings remain part-heard and undetermined, so nothing irreversible will occur; any conviction or sentence would be reviewable on the statutory appeal route, preserving the applicant's remedy and rendering the intended appeal salvageable even without a stay.
Whether the applicant should be granted bail pending appeal
Bail pending the hearing was declined: the right to bail for Kenya Defence Forces members is not absolute, being limited by Section 54(2)(b) of the Kenya Defence Forces Act pursuant to Article 24(5) of the Constitution, and compelling reasons against bail including flight risk and possible interference with witnesses were advanced
The Court held that the constitutional right to bail is limited for service members by statute under the limitation clause. The respondents contended that compelling reasons militated against bail - that the applicant is a flight risk and may interfere with witnesses, some of whom are his juniors over whom he has command. On those facts the Court declined to exercise its discretion in favour of bail.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - arguability and nugatory aspect - and satisfying only one limb does not avail the applicant the orders sought
- Where proceedings in a court martial continue, the availability of a statutory right of appeal on conviction and/or sentence to the High Court under Section 186(1)(a) of the Kenya Defence Forces Act weighs against a finding that an intended appeal would be rendered nugatory
- The right to bail for members of the Kenya Defence Forces is not an absolute right but is limited by Section 54(2)(b) of the Kenya Defence Forces Act pursuant to Article 24(5) of the Constitution
Court orders
#- 1.The Notice of Motion dated 5th November, 2019 is dismissed
- 2.Stay of proceedings in Court Martial Criminal Case No. 2 of 2019 is declined
- 3.Bail pending hearing and determination of the intended appeal is declined
- 4.Costs of the application are awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 188 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - discretionary jurisdiction to grant stay of proceedings and bail pending an intended appeal, guided by the interests of justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erastus Hezbon Otieno v Director of Military Prosecutions & another [2020] KECA 390 (KLR)", Case Analysis (2020). Nairobi Civil Application No. Nai. 348 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/390/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.