Cpl Gilbert Kipya Biwot v Republic

false pretence he was in a position to recruit Mr Elphas Kipkorir Chebii of No xxxxxxxx into the Kenya Defence Forces an act he knew or ought to have known constitutes an offence . 3. Alternative Charge: Committing a Civil Offence contrary to Section 133 (1)(b) of the Kenya Defence Forces Act that is Obtaining Money by false pretenses contrary to Section 313 of the Penal Code, particulars of the charges are that : On diverse dates in the month of January 2021 within Eldoret town with intent to defraud obtained Ksh 300,000 in two tranches, Ksh 280,000/= cash from Mrs Emily Jebet Chebon and Ksh 20,000/= Mpesa from Gladys Cherono on false pretense he was in a position to recruit Elphas Kikorir Chebii into the Kenya Defence Forces a fact he knew or ought to have known to be false. 4. Conduct to prejudice the good order and service discipline contrary to Section 121 of the Kenya Defence Forces Act On diverse dates in the month of January a 2021 and April 2021 within Eldoret town in pretext that he was in a position to recruit Sheila Jebiwott of National ID Card No xxxxxxxx into the Kenya Defence Forces solicited and received Ksh 331,500/= in two tranches Ksh 291,000/= cash from Mrs Emily Jebet Chebon of ID xxxxxxxx and Ksh 40,000/= from Mpesa account no 07xxxxxx85 Gladys Cherono ID xxxxxxxx at the request of Mrs Emily Jebet Chebon on false pretence he was in a position to recruit Mr Elphas Kipkorir Chebii of No xxxxxxxx into the Kenya Defence Forces an act he knew or ought to have known constitutes an offence . 5. Alternative Charge: The Appellant was charged with the civil offence of Obtaining Money on False pretence under Section 313 of the Penal Code ., on diverse dates in January and April 2021 with intent to defraud the Appellant obtained Ksh 331,500/= from Emily Jebet Chebon and Gladys Cherono on false pretense that he was in a position to recruit Sheila Jebiwott an act he knew or ought to have known to constitute an offence . 6. Absence without leave contrary to Section 75(1) as read with Section 75(2) of the Kenya Defence Forces Act . The particulars of the charges were that on 6/9/2021 at 08000hrs the Appellant absented himself without leave until he was apprehended by military police personnel on 28/11/2021 total time 83 days at about 0045hrs an act he knew or ought to have known to be false. 7. Escape from Lawful custody contrary to Section 105 of the Kenya Defence Forces Act. Particulars of the charges were that : On 10/6/2022 at or about 1310hrs the Appellant escaped lawful custody while being held at Moi Airbase main gate guardroom during closed arrest awaiting trial by court Martial and remained at large until 29/6/2022 when he presented himself back at Moi Airbase main gate and was escorted to Moi Airbase main gate guardroom, an act he knew ought to have known to have constituted an offence. The Appellant pleaded not guilty to all the charges. The Prosecution called 12 witnesses in proof of the charges. The Prosecution later withdrew the charges on Count 1 and Count 2 under Section 87A of the Criminal Procedure Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 2

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The Evidence At Trial. 8. PW1 Ambrose Munyoki from the Law Enforcement Liasion Office Security Department of Safaricom PLC as Data Analyst he referred to extract copies of Mpesa Statements of mobile No 07xxxxxx85 and 07xxxxxx06.The numbers were registered in the Appellant’s name Gilbert Biwott Kipya of ID registration number xxxxxxxx. He was served with Court order to process the details sought. He extracted the statement using a computer and a printer and also produced the Certificate of electronic evidence under Section 106 and 65 of the Evidence Act. He produced the Statements Orders & Certificate as exhibits. 9. In cross examination by Defense Counsel, he stated that Safaricom has records of ID Card numbers and names of subscribers and the ID Card is submitted during registration. A photo is also taken and is keyed and kept as part of records. He confirmed that the certificate of electronic evidence does not bear the letter head of Safaricom.He also confirmed that he did not come with any document that confirms that the phone number 07xxxxxx85 belongs to the accused. That Safaricom PLC is able to tell the location of any line at any given time. 10. The witness was stood down after the defence counsel indicated that some pages were missing on the Mpesa statement. 11. Pw2 Major Naomi Nyakerario Ondieki serving at officer cadets as an adjutant and stationed at Kenya Military Academy. 12. She stated that on 6/9/2021 she received information from Cadet Intake 40 who were on field training exercise at Mt Kenya. One driver attached to the training was absent. The driver was the accused who was also pointed out by the witness before the court. 13. After receiving the message she raised the AWOL message and initiated absent message to the Academy headquarters. PW2 learnt about the accused absence through a letter from the Cadet intake which she acted on. 14. PW2 referred to the Cadet Intake document which was issued after 7 days when a person has an AWOL and has not returned back to duty. The document report included service member and also restricted payment. It was used to restrict the Appellant’s salary payment. The Abseight document exhibit 5 in the Abstract was sent after 7 days after a person had an AWOL. 15. In cross examination by Defense Counsel, PW2 stated that people work in shifts and there is also a document which confirms that the Accused was supposed to be on duty on a particular day but it was not availed /produced in proceedings. There are also documents for the shifts and specific time. PW2 stated that Accused was supposed to be in Mt Kenya not Isiolo. 16. PW2 did not have any documents confirming the Appellant was supposed to be on duty at that time. She did not have documents indicating he was assigned to be at Mt Kenya that day.PW2 stated that she was acting on a letter that she received from the Commanding Officer and and acting on the information received initiated the letter to the Military Academy headquarters. 17. PW2 acted on the letter which was from the Command Wing of Cadet Intake KMA Forces, she did not have this letter which she said she acted upon but the one she initiated. Further that she was not on the ground and was back at the camp as the Chief Training Officer. 18. PW2 also confirmed that drivers are assigned vehicles depending on the work they are going to do. She also explained that being an In charge of a group and a team member absents himself, she raised an absence message through the necessary channel. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 3

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19. That the absence is raised when efforts to reach the person fail. She was not directly responsible for this information and efforts to reach him and she only acted on the information she received. 20. Further that they reside in camps when they work in training areas. She did not see any Part One Orders stating that the accused had been allocated duties that day. She only acted on information from the intake where the Appellant was supposed to be. She admitted that she did not verify the information. 21. In the Appellant’s case he was supposed to be at Mt Kenya That the witnesses would have acted on the facts if they would have realize this. 22. Pw3 Captain Bakari Maina 13xxxx also from the Kenya Military Academy. He was referred to the Inter Office Memo issued on 1/12/2021. He explained that it was a REJAB for the Appellant which is raised for service personnel returning from being absent without leave. 23. He stated that he knew the Appellant but by the time he was posted to the Kenya Military Academy an AWOL was already issued. Pw3 signed the REJAB notice and also stated that the Accused was reprimanded and brought to KMA by the Military police. 24. He stated during cross examination that he saw the Appellant when the accused was brought to the office by the Military police . 25. He was placed on the guard room on 28th November and Pw3 raised the REJAB on 1st December. That the days when a person is placed on the guard room are included in the number of days of absence. 26. He did not have any document for placing the Appellant in the guard room. That he raised the REJAB to the Academy Headquarters which is the headquarters involved in personnel handling AWOL. That the Appellant’s work station was Kenya Military Academy and he was supposed to be stationed at Cadet training though he could not tell the location. 27. He did not know the Appellant’s in charge during the training and also did not know where he departed to before the training. He could not tell how long the training took. 28. The operation order had a list of names of people who are supposed to move from one place to another for training or camp. PW3 had not seen such an order indicating where the Appellant was supposed to be during the period that the prosecution claimed he was absent. 29. He stated during reexamination that he did not indicate the days when the accused was in the guard, he counted the period between 6th September and 28th November. He was also not present when the Appellant was placed on the guard room. 30. Pw4 WOII Hassan Dida also posted at the Kenya Military Academy testified that he was at Larisoro Training Camp on 6/9/2021 where he was CSM of Intake 40. He had known the Appellant although he had not worked with him. 31. He stated that the motor transport HOD Sgt Kioni informed him that he was not seeing Biwott, Pw4 started reaching the Appellant through his phone but it was not going through. 32. That they took the 1st trip to the training camp earlier in the morning and were supposed to go back for the 2nd trip The Appellant came back for the 2nd trip at around 7:15-0645hrs and was assigned vehicle 00KA44G Isuzu FTS was supposed to come back for the 2nd trip. 33. Pw4 realized the Appellant was missing at around 0730hrs and after receiving this information he informed his Admin Officer. He reported to the Admin Officer that he got information from MTO https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 4

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Sgt Kioni that he was not seeing the driver of service vehicle 00KA44G. The Admin officer directed him to raise the absent message of 76xxx Gilbert Kipya 34. Pw4 was cross examined and he stated that he did not work with the Appellant and the Accused person was answerable to him as he dealt with Admin but he did not allocate duty to the Appellant and it was Admin officer who allocated duties. He testified that he was dealing with part of admin which was delegated to him as a junior. The orders are given to officers on duty, he did not have any document to prove that the accused was on duty at that particular time. 35. He stated that he did not see the Appellant’s name in the Part One Orders, at the time the Accused worked at the Kenya Military Unit Camp and it was not in Isiolo but Larisoro. There was nothing to show that he was supposed to be at Larisoro. Without his name in Part One Orders, there was nothing to show he was working in Larisoro. 36. That he was told by Appellant’s superior that someone tried to reach him but his phone was switched off. He did not have call logs to show the Appellant was reached, and he did not have any evidence like Call Logs to prove this fact. 37. That the Appellant made one trip from 6:00-6:15hrs which was in the morning. The others in the camp were to report at 6:00hrs in the morning, there was no document that the Appellant was supposed to report to duty at 6:00am. 38. There was also no document showing persons who were working during the previous night. 39. PW5 SSGT Kioni Muthoga engaged at the Military at Transport Battalion stated that he was at the Kenya Military Academy in the year 2021. That he was at Lorisoro Training camp on 6/9/2021. He had worked with the Appellant for one year. 40. Pw5 stated that on 6/9/2021 he was given military duty to take cadets to a military exercise with Sgt Biwott. The Appellant was given detail to return and take breakfast for the cadets but he was not found when tea break reached That he searched for the accused and could not find him; that time the vehicle was at the training camp. The vehicle was 00KA44G, Isuzu 41. He looked for him at the military tents and also tried to call him. That efforts to reach him were futile and he raised an AWOL.He reported to Sgt Major who was appointed as CSO Mr WOII Dida Pw4 who forwarded the AWOL. 42. The Appellant was on duty that day. 43. Pw5 was cross examined and stated that he did not have any document to show the Appellant was on duty .Pw5 went to join those who were in Mt Kenya .The Appellant had an Adm. Officer that he was reporting to and he was not exempted from any task. Further that when there is an operation there are no specific days for Operation Orders, it continues until the operation is over. 44. That he went to Mt Kenya for training which was for 7 days, he joined the accused who had been there for 3 days. He stayed with him for the other 4 days. PW5 did not remember the days he moved to Mt Kenya and when the Appellant reported at the place. 45. He stated that not all military work involved Part One Orders and that these are not used during military training areas. That, they break for hours during the training and the hourly rests are taken at the rest rooms. 46. Pw5 confirmed that it was not the same document that took Accused to Mount Kenya also took him there. The Documents and instructions were undertaken by the Adjutant. He confirmed he did not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 5

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work with Part One Orders it was not always the part One Orders are used and were not used during training areas. 47. He confirmed that there was no document showing that the Appellant had gone missing and a document to show that he was on duty 48. Further that he tried to reach the Appellant through his phone but he did not have his phone in court. He stated that it was misplaced. 49. Pw6 SSGT John Nyambane from IMP Unit.He stated that on 12/11/2021 he was tasked to apprehend SVC No 76968 one Cpl Gilbert Biwott Kipya. He was instructed by the Commanding Officer SIU Major but he could not remember his name. He had information that the Appellant was in Nakuru , he was accompanied by his fellow worker to Nakuru. They searched places they suspected the Appellant was hiding but they he was not there. They got information that he was in Eldoret at Moiben area which was his home area. 50. They proceeded to Moiben on 28/11/2021 and with assistance of the Local Area Chief they managed to arrest the Appellant at a village called Kondapilet within Moiben Uasin Gishu County. 51. That he was not known to the Appellant and he was given some guidelines on his physical appearance and he had seen photos. The local chief also knew him. 52. The witness identified the Appellant in court. The witness also referred to the document dated 28/11/2021 which he originated after the arrest. 53. The Appellant was arrested at around midnight at 0045hrs on 28/11/2021.They booked him in civil police at Moiben Police station and later booked out and was handled over to them. They went to 9KR in Eldoret where Pw6 also originated the incident identified earlier. 54. They placed the Appellant on close arrest pending his collection by his unit. They informed his unit that he had been placed under close arrest at 9KR.The Appellant’s Unit was to facilitate his collection. He produced the Incident Report as Exhibit 5. 55. He confirmed that he wrote his statement, he indicated his name in the statement as John Nyabue while the incident report indicated it a John Nyambane. These are his names although he did not have any document to prove this. 56. His statement did not indicate the place where the Appellant was arrested. It indicated that he was arrested in his village which was within the Appellant’s area. 57. The reason for arrest was absence from his place of work from 6/9/2021. He was given full details of the Appellant’s place of work and where he came from. 58. That the Appellant was supposed to be at Kenya Military Academy at Lanet. He did not have the occurrence book in court. 59. His colleagues did not know the Appellant. They also used a police private car and he did not have any document for allocation of the vehicle. 60. He explained the authority to arrest the Appellant was in the letter issued by the Unit to the Commanding Officer Military Police. The Commanding Officer also called him. These communications were with the Commanding Officer. 61. Pw7 SPTE Ian Mwai No 15xxxx attached to Signal at Moi Airbase stated that he knew the Appellant and that they were in the guard room together. That on 10/6/2022 they had gone to empty dustbins https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 6

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and had been given permission by Sgt Kaula, he was later asked about the Appellant but he did know his whereabouts. 62. That he did not know his whereabouts when he went back to the sleeping room although they got to the guardroom together. That he went to report to the Military Police officer when he realized he was not in the guardroom. 63. Pw7 was at the guardroom because he had a pending case before the court Martial. He was taken to the guardroom on 11/9/2021 but he was brought to Moi Airbase on 11/4/2022. That one has to be guarded to get out of the guardroom. That Sgt. Kaula was the Chief Commander on duty and permission had to be obtained from him to undertake any other duties or healthcare while in guard room. He and the Accused were in closed arrest not open arrest and stayed in guard room and left only with escort. 64. He was cross examined and he stated that the Appellant was under closed arrest and in such arrest one must have an escort every moment. He did not know the Appellant’s escort. 65. That the Appellant was not manned when he went to empty the dust bins.He came back by himself. That anyone can empty the dustbins in the guardroom although it goes by seniority. 66. PW8 10xxxx WOII P. Omundi a security warrant officer, he explained his duties as deploying KAF police and ensuring installation and equipment are secure. 67. He received a call on 10/6/2022 at about 1300hrs from Senior Sgt Titus Kiprono warrant officer II who informed him that the Appellant had escaped from custody. Pw8 confirmed this at the gate when it was apparent that he was missing. He later informed his senior Captain Luteipa who advised him to authorize KAF police personnel and guard personnel to see if they could find his whereabouts. 68. Pw8 and the duty officer and KAF police personnel went to where the Appellant had gone to throw the dust bins from the main guard room and realized that he had left his clothes. 69. The clothes were confirmed by the shift commander Sgt Kaula who also said that he was wearing the clothes earlier. 70. The CCTV showed that he was wearing civilian clothing, a black trouser, a sky blue short sleeved and combat trouser after he escaped. That he wore a long combat plus track suit long sleeve before he escaped and he wore a black track suit. 71. The route he used to escape was explained to the court. He said that it could be seen on the CCTV 72. In cross examination, Pw8 stated there were those who manned the gate and guarded the Guard Room and the people in Guard room and at the gate interacted. He was shown CCTV footage and he did not write that Accused escaped as shown through CCTV camera. He stated investigations begun when Accused was Corporal and had risen to Sergent and he was Warrant Class II and he was then Warrant Class I. To stay in the Mess one needed permission from the Incharge of Guard Room. The Accused came back to Guard Room by himself. He said he did not know if the matter reached the CO or not. 73. Pw9 WOII No 10xxx Titus Kiprono gave details of the occurrence of 10/6/2022.He explained that he was the Senior Sergeant when the Appellant escaped. He was called by shift commander Captain Njuguna at 1330hrs and was informed that one of the prisoners identified as Sgt Biwott was not within the camp area. The Accused resided with Pw7 and another Officer from Embakasi.Pw9 conducted a search in the guardroom where the Appellant stayed, the toilets and the place he had gone to empty the dust bins. That he contacted WOII Omondi who also informed Lt Leteipa . https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 7

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74. They found the Appellant’s uniform at the place he had gone to throw the garbage; the place was bushy. They also checked the CCTV and found that the Appellant had changed and walked out through the main gate. That the Appellant was supposed to be in the guardroom cells and could only leave when he went to get water empty dust bins He had emptied dustbins before and he would come back. 75. The Appellant came back on 29/6/2022 at 6 am alone and had no escort. 76. Pw9 was cross examined and said that he did not have CCTV He did not mention the fact that the Appellant had gone to change, he also did not mention the uniform He did not have evidence of the Appellant coming back on 29/6/2022 That for someone to be placed in the guardroom instructions had to be issued but there was no instruction in court. 77. That the person who was missing was Kibiwott, the Appellant was called Biwott. The witness was of the view that it was the same person. That Sgt Abraham Kaula was the Appellant’s escort and he was charged with the Appellant’s escape. 78. Pw10 No 10xxxx Ssgt Abraham Kaula also testified on the events of 10/6/2022. He had been posted to Kenya Airforce Police where he had worked since 2017. He stated that on 10/6/2022 he was manning the Main gate at Moi Air Base and was the shift commander. That the workforce they were few and he manned the Main gate as the leader .He was checking the vehicles passing through the gate and making sure any incidents are reported to the police .The main gate is comprised of the security area where everyone entering the gate must be searched, the pedestrian gate where people are searched and confirmation of authority to enter is done. Exit area for searching those getting out of the gate are searched. 79. That 5 people were in the guardroom, he listed them as Spte Mwai, Sgt Kipkemboi Spte Langat, Sgt Kibiwott but he could not remember the other one. 80. He had known the Appellant for 3 weeks. He did a head count and deployed his soldiers. The soldiers went for lunch and he remained behind to man the main gate. He later went for lunch when they returned, he did not find food outside and opted to take lunch where prisoner’s lunch was organized. 81. That as he was washing his plate, Spte Mwai told him that the guardroom had dirt and he started to collect the garbage and place it on buckets. The Appellant was asleep and was in full combat and Spte Langat woke him up and he put on his shoes. The Appellant and Spte Mwai went to throw the buckets. 82. That Spte Mwai came back and he asked him the whereabouts of the Appellant. Spte Mwai told him stories and he became confused and forgot that someone had not returned to the guardroom. 83. That Sgte Njunguna came and did a head count and the Appellant was not found. That they searched the Appellant within the guard room and he was not found. He testified that the Appellant’s uniform was found at the place where he had gone to throw the dust bins. That they also saw him leave through the main gate in the CCTV footage. There are many routes to exit the barracks. 84. That he was the Appellant’s escort, also that he did not have the CCTV footage in court and there was no evidence showing him leave the main gate and come back. 85. After head count he confirmed Accused was missing; He reported to Ssgt Kiprono and searched guard room and perimeter search and at the bushes and found he dumped his service combat. They went to the CCTV and watched saw him coming out in a blue T shirt a mask on the head while talking on phone and in a black track suit trouser. He informed Ssgt Kiprono who informed OC.He was put under arrest and it is the Accused who escaped from the Guard room. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 8

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86. In cross examination Pw10 confirmed that there is a document or instructions to place the Accused in the Guard room and the records remained at the Main Gate. He was on duty that day and the Accused ‘s escort. He had no document on being Accused escort. He did not write anything about CCTV in his Statement. He did not have the CCTV that day in Court but he confirmed that he had it in his phone but he had no evidence CCTV cameras captured on 10/6/2022. He did not know the Accused person’s Commanding Officer. 87. Pw11 10xxx Sergeant Kimani Njuguna stated that he was taking over duty and did a head count of the prisoners in the guardroom. That the people in the guardroom were 5 and he listed them as Spte Mwai, Sgt Kipkemboi ,Spte Langat, Sgt Kibiwott but he forgot the name one of them. 88. That one person was missing and the person was identified as Kibiwott. He said it was the same as Biwott and that the names were for same person although the Appellant’s service record did not indicate Kibiwott. 89. That they searched the guardroom and the places around it. That he and Ssgt Kaula reported the matter to their superior senior Seargent Kiprono.That they later found the Appellant’s uniform at the place where gone to throw the dust bins. The CCTV showed him wearing a black trouser, a sky blue short sleeved and combat trouser after he escaped. 90. He confirmed that the CCTV was not in court and the document placing the Appellant in the guardroom was not in court, the terms of placement were not indicated and that there was no evidence of him leaving and coming back or walking through the main gate on 29/6/2022.That he had to use the main gate to return to the guard room. 91. In cross examination Pw11 confirmed that he saw the document Placing the Accused in the guard room but he did not have the document in court. In his statement he stated the prisoner was missing and he did not see him escaping but he was missing. It was prisoners duty to ofioad dust bins and clean the guard room. He did not see him leaving Moi Air base Camp and he did not see him coming back. He stated that when one is placed in the Guard room orders are issued and published to members of Armed Forces. The Gate people were not given the document showing who is/are in the Guard room. The person in charge of the Prisoners is the Shift commander. He did not have proof that the prisoner left the Camp. In re-examination Pw11 stated that he was not involved in drafting the document that he was sent. He also would not go to the Sergeant Mess if he was supposed to be in the Guard room. 92. Pw12 No. 15xxxx SPTE Diana Bosibori testified that on 10/6/2022 she was deployed at 2 MB MAB detach as Duty NC at 1500 HRS, Sgt Kaula Shift Commander reported to her that Sgt Biwott was under closed arrest went missing after he was granted permission to go empty dust bins. Sgt Kaula granted permission for the accused to empty dustbins. 93. As Investigation Officer, she investigated the case involving escape from custody.Pw12 had the Abstract of Evidence Exh 1 that had history of the incident and MAB detach. She visited the guard room and established the accused had escaped and informed her senior through the chain of command who instructed her to raise the incident. The Appellant was supposed to be in the guardroom as he was court Martial trial. The trial involved court Martial malpractice. 94. She was instructed by her CO to draw the abstract her Commanding Officer Lt. Col Munene. The Appellant returned on 29/6/2022 at around 0600hrs and was not escorted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 9

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95. Pw12 was cross examined and she stated that she was not sure whether the offence should be pardoned by the Commander. That she did not have the Appellant’s clothes before court, the clothes were his and were returned to him. The Appellant had allegedly identified as the Appellant’s camouflaged trousers and a blue jacket. That the main gate has CCTV cameras although she did not have the footage in court. There is no evidence establishing that the Appellant was called. 96. . That the Commanding officer gives authority before a person is placed in the guard room. That if the Appellant had to seek leave it had to be from his Commanding Officer. She did not take the Appellant’s Commanding Officer’s statement. 97. The Prosecution made an application to withdraw the charges 1 and 2 and their alternative charges under Section of the Criminal Procedure Code. The application was allowed and the prosecution closed its case. 98. The Court Martial delivered its ruling on case to answer on 12/4/2024. The Appellant was placed on his defense. The Defence Case. 99. The defence counsel raised a preliminary issue on the charges being handled by the Commanding Officer and whether these charges could be dropped. He also indicated that the Appellant was receiving half salary for these charges. 100. The prosecution referred to the abstract of evidence indicating that the Appellant was remanded by Commanding Officer on 16/12/2021 for charge of being absent without leave Contrary to Section 75 . 101. The matter was referred to the CO and charges were read out to the Appellant on 20/12/2021. The matter was referred to the Director Military Prosecution. The prosecution stated that these charges had never been summarily dealt with by the CO. 102. The court reserved its ruling on the issue. 103. The Appellant gave sworn evidence in his defense. He responded to the remaining charges framed by the court as , charge 3 and 4 on Absence without leave and escape from lawful custody . Dw 1,Sgt Gilbert Kipya Biwott is that charges in Absence without leave were dealt with by Lt Col Owiti who is his Commanding Officer at Kenya Military Academy and that a decision was made. That he was deducted 2000 per month which had continued during the charges. He did not know whether Lt Owiti referred the matter to the Military Police. 104. On charge 4, he stated that he was brought to Moi Airbase on 22/5/2022 and that he was a Sergeant at the time. Sergeants are non-commissioned officers who are to be placed under open arrest. That permission is sought from in charge police on duty in case a person in open arrest wants to do his things outside the camp. The in-charge police in duty is either a Sergeant or Senior Sargent. 105. That he had been going to the Sergent’s Mess while he was at Moi Airbase and the main gate is used to access the place, there no ‘panya’ routes to exit the camp as the guards are always on duty. 106. That CCTV cameras are placed to surround the fence there are also towers managed by guards. That soldiers manned the gate and it was not possible to get out without being noticed. 107. There are CCTV Cameras which were not presented before the court.Further, that the people guarding the gate knew the Appellant as he was placed in the guard room at the main gate . https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 10

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108. His case is that he had gone to the Sergeants Mess during the period in question and that he did not require permission from someone in his rank. 109. That he had a phone, there was no evidence demonstrating that his phone was found used outside the camp. The Military could easily verify such information. There were no call logs to prove that he made communication outside the camp during the 19 days in question. 110. The Appellant referred court to his payslip for the month of December 2023 indicating that he was deducted Ksh 2000/= in relation to the 1st offence and it had not stopped during the trial. 111. That he had not left the camp for the period of 10/6/2022 and 29/6/2022. If he left, he would have to come back using the main gate. There was no evidence to this effect. 112. The Appellant was cross examined, he admitted that he was a KDF svc Personnel. He stated that he appeared before his Lt Col Owiti on 20/12/2021 and he was with RSM. He admitted that he signed the Abstract of evidence after the proceedings before the Lt Col and admitted the signatures on the abstract were his. 113. The Appellant was referred to the Commander’s Report on the abstract which also indicated the findings. 114. He was also referred to, his pay slip for the month of May which included deduction of Ksh 2000/= for overpayment recovery. That he had committed to pay Ksh 50,000/= from December. 115. That outcomes of charges are published, he also did not have part 11 Orders committing the Pay Master to deduct such charges. 116. That he did not have permission to leave Isiolo and he was an AWOL for 83 days. He stated that he did not leave the guard room on 10/6/2022, he admitted that he was with Spte Mwai in custody. That they stayed in the guardroom but sometimes he would go out when he needed something. 117. That he was emptying bins with Spte Mwai on 10/6/2021, he was also with him in the guard room the previous day. That the Shift Commander gave him permission to leave the guard room and to empty the bins. 118. He testified that he was at the Sergeant’s Mess between 10/6/2022 and 29/6/2022 where he was staying alone. He went back to the guard room on 29/6/2022. That on 27/6/2022 he was at the Sergeants mess and did not attend court. He was alone. As Court Martial was on 10th and 29th June 2022 and he knew of date from his lawyer. On 27 th June, 2022 he failed to attend Court and he remained silent then said he was at Sergeant’s MESS 119. That nobody gave him permission to be away from the guardroom. That he stayed alone in the TV room at the Warrant Officer and Sergeant’s Mess. 120. He was re-examined, he stated that permission to be out of the guardroom was not necessary as no document was produced as to terms and conditions that kept him in the guard room. He stated that it was not necessary to get permission. He did not have anything to say about the overpayment, there was also no document showing that he did not attend court. That he was fined KSH 50,000/= by the Commanding Officer and he also signed the abstract before the Commanding officer. 121. Dw2 Major Nelson Muthomi M’arimi who was a staff officer of records from the headquarters of Kenya Air Force. He testified on the Appellant’s salary deductions an explained that when a soldier goes absent without leave, a Board of Inquiry is conducted by the Military after 21 days trying to establish the reasons for his absence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 11

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122. He confirmed that the offence of absence without leave had been dealt with by the Commanding Officer, but it was not completed .That the case was referred to the Director of Military Prosecution for disposal, that according to the information from his office, the Commanding Officer did not handle the matter. He did not have any information about the case. He knew of the matter because he had a pending case for the same charge before the Court Martial. He was green on the issue of the offence whether it was dealt with or not. 123. He testified that the Appellant had been away for 21 days when the Board of Inquiry was conducted. He referred to the statements of inquiry. He explained that the board established the loss that might have been incurred as a result of absence That there was also a service kit which was lost and it amounted to Ksh 47,524/= and when the BOI was received at Service HQ, The Commander Kenya Army directed that the amount should be recovered from the Appellant’s payslip. 124. The Board of Inquiry is constituted after 21 days. He had been away more than 21 days. This information was in one of the Service member’s statement who was in charge of the kit at the unit, he established what was available and what had been given. He did not have the inventory and therefore could not tell whether the Appellant had been given the kit. That everyone is allocated a place where the kit is to be kept, what was gathered from the place was not equivalent to what was given to him He admitted that kits are shared. 125. He stated that after a case is dealt with by the Commanding authority it is given to the service headquarters and is sent to the unit for publication. The publication is presented to records for implementation. 126. He was custodian of the Pay records and not the publication. He stated that when somebody was charged with an offence that the Commanding Officer dealt with after authority is given by Service HQ, the authority is sent to the Unit for publication. Once publication is done it is presented to pay Records for implementation. He could give evidence on behalf of the person as a CO. Further that the Commander Kenya Army authorized the actions and recommendations of the BOI, he gave out the document signed by Lt Commanding Officer. 127. The senior person in operation can exercise position of a commander on behalf of the Commander. That the lieutenant Colonel is a commander on behalf of the service commander. That there is an Army headquarter for administrative purposes and the Military police department at Army headquarters also have a commander and therefore there are commanders at different lines. 128. The letters in the file were signed for Commander and not the Service Commander. That he was not aware of any letter written by the Appellant concerning the deductions. He did not come with the Appellant’s pay slip, the Payslip did not indicate deductions was for the kit but this information was in the records . 129. That loss of something amounts to overpayment and that this is how it was implemented from the data. That the person had to be charged for something before overpayment is done instead of just writing things lost but the same to have been handled by those who handled the matter. The Judgment Of The Court Martial. 130. The Appellant was found guilty of count 1 and count 2 : explained as absence without leave and escape from lawful custody. 131. The Appellant was heard on his mitigation. He also requested for evidence from the records . Major Dennis https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 12

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132. Kairemia Service No. 13xxxxx SO2 Service Members records from Kenya Air force headquarters and the custodian of personnel records of all service members gave evidence on the Appellant’s records. 133. He stated that the Appellant was enlisted on 26/2/2007 and was on a contract for 18 years, he was 38 years old and was married with 3 children 14,12 4 years old. 134. The Appellant’s gross base rate was Ksh 78,553.000/= and a deducted half basic salary withheld during trial. The Appellant was entitled to Ksh 33,276.50 for his rental allowance and he was repaying a bank loan from Equity Bank at Ksh 32,119/=. His PAYE deduction was Ksh 56,630/=. 135. He held rank of Sargent with seniority from 1/11/2021 and was entitled to nil records and nil acts of gallantry. He had been awaiting trial for 4 years and was on close arrest for 2 years 30 days. 136. He has never been found guilty by his Commanding Officer. The record was produced. 137. He was cross examined and he stated that the accused Was arrested on 25/5/2022 when he was placed under closed arrest. There is no record of details on his closed arrest. The records indicated that he was in his unit until he absented himself on 6/9/2021. 138. That Ksh 2000/= was deducted from his payslip because of a lost kit which was indicated as an overpayment. That overpayment in the military could mean someone is fined after trial. It could be loss of military equipment or damage to military equipment. 139. That the Board of Inquiry makes the decision on recovery of money from the pay slip, the requirements and the process is in the Defense Force standing orders. That a Board of Inquiry is convened after 11 days of absence from the duty station. Dw3 did not have the Board of Inquiry report in court. 140. That the Appellant had never been charged or convicted and he was a Corporal before 1/11/2021.The charges were related to events of the year 2022. 141. The Appellant stated in mitigation that he had been in custody for 3 years. He prayed for leniency and also submitted that the charges attract punishment that are less and maximum of 2 years. That the Kenya Defence Forces Act provides various modes of punishment to guide the Court Martial not to stick to one law. That the criminal justice has moved from punishment to correction. That Act includes reprimanding an offender as a form of punishment 142. That the offences committed are not harmful to the society and the Appellant can be constructive if he is given a chance .The Appellant is also a family man. 143. The Court Martial sentenced the Appellant to 2 years imprisonment for each count. The Court Martial noted that the Appellant had been in custody from 28/11/2021 and not 25/5/2022 and the period was deducted from the jail term. (Section 333(2) complied with) 144. The Appellant was also demoted from Sergeant to Private and was dismissed from service. The Appeal. Petition of Appeal. 145. Aggrieved by the Court Martial’s decision ,the Appellant filed the petition of appeal dated 31/2/2025 listing the following Grounds Of Appeal :1. That the trial court erred in law and fact when it failed to evaluate the evidence on record and failed to appreciate that no offence was committed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 13

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146. 2. That the court failed to address its mind to the fact that the Appellant could not be placed in custody due to his rank. That he was not legally under arrest and the case was an illegality. 3. That the Appellant was placed on closed arrest on allegations which were withdrawn and that no offence could arise from his escape since the reason for his arrest was withdrawn 4. That the court erred in failing to appreciate that prosecution did not discharge the burden of proof beyond reasonable doubt. 5. The court failed to consider relevant factors and ended up considering irrelevant factors. 6. That the court convicted the Appellant without any support for its decision 7. The sentence was punitive sentence and was not warranted as the case was not properly referred to the court as per law. The Appellant prays that the appeal be allowed and that the conviction to be quashed. That the Appellant be reinstated to his employment. Written Submissions. The Prosecution’s Submissions. Count I (i) absence without leave contrary to section 75(1) as read with section 75(2) of the Act. The particulars of the offence are that on 6th September 2021 at about 0800hours the accused absented himself without leave until he was apprehended by military police personnel on 28th November 2021 (total time being absent being 83 days) at about 0045hours. An act he knew or ought to have known constitutes an offence. Count II (ii) Escape from lawful custody contrary to section 105 of the Act 147. The particulars being that on 10th June 2022 at or about 1310 hours, the accused escaped from lawful custody while being held at Moi Air base (MAB) main gate guard room during close arrest awaiting trial by Court Martial and remained at large until 29th June 2022 when he presented himself back to MAB main gate guardroom an act he knew or ought to have known constitutes an offence. C. Submissions on the issues Whether the Ingredients of the offences were established 148. In the case of Wafula vs. Republic (Criminal Appeal 110 of 2019) [2023] KECA 131 (KLR) (10 February 2023) stated: “ It is trite law that the legal burden of proof in a criminal case rests throughout, with the prosecution. There was no burden whatsoever, on the appellant to prove his innocence." 149. The offence of absence without leave is provided in section 75(1) of the Act as follows: “ A person who is subject to this Act commits an offence if that person-(a) is absent without leave; 75(2) "A person who commits an offence under subsection (1) shall be liable, on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 14

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conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act." 150. The respondent contested the appeal and filed submissions urging that the charges were proper before the court and that they were sanctioned by the Director of Military Prosecution. That Section 157 (9) of the KDFA provides that the Director of Military Prosecution is the final authority in deciding whether charges can be brought before the court Martial or not. 151. That failure to adduce CCTV footage did not affect the conviction, there was direct evidence from witnesses to prove the charges beyond reasonable doubt. That the law does not mandate a specific type of evidence to the exclusion of others. Lastly that the Appellant’s defence was a mere denial and the Appellant’s case that he lived in the Seargent’ s Mess alone was not plausible. 152. The prosecution refers to the case of Ogolla s/o owuor -Vs- Republic (1954) EACA 270 and contend that the sentence should not be interfered with by the appeal court. The Appellant’s Written Submissions. 153. The Appellant framed issues as : Whether prosecution’s case was proved beyond doubt as required by law , whether conviction was legal and proper when the charges were withdrawn , whether there was escape from custody , whether the escape amounts to an offence when the charges were withdrawn . 154. The Appellant refers to the case of Boniface Ndirangu -Vs- Republic and urges that a court cannot proceed on a charge which was withdrawn. 155. That there was no conviction on charge 3 and 4. 156. Further that Pw2 did not verify the facts of the AWOL and there was no document proving that the Appellant was allocated duty at Mt Kenya .Pw2 did not know the facts of the case and her evidence raises doubt whether the Appellant was supposed to be on duty .The witness could not tell whether the Appellant was within the camp. 157. Pw3 did not have any document proving that the Appellant was placed in the guardroom, the witness stated that he had not seen the operation order indicating where the Appellant was supposed to be at the period he was alleged to be absent. 158. Pw4 did not have documents to prove that the Appellant was supposed to be on duty, he also stated that he never saw the Appellant’s name on the Part I orders which specify those who were to be on duty and what they were to be attending to. 159. That Part I orders were necessary in allegations of absence from duty to show he was in Larisoro. Without it he could not have been at Larisoro. 160. Pw5 did not have evidence that the Appellant went missing and that he was supposed to be on duty in the first place. He stated that he was with the Appellant at the Mt Kenya training and he had spent 4 days with the Appellant who had arrived 3 days earlier, the mission was for 7 days the Appellant urges that he had finished his mission at the place. 161. Pw5 did state that the Appellant was supposed to be at Lanet and there was no document that dispatched the Appellant to undertake duties elsewhere. 162. That Pw 7’s evidence should be limited to charge 4 . He stated that the Appellant was not escorted whether they went to empty bins and he came back by himself. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 15

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163. Pw8 admitted that the Appellant was Corporal and later became a Sargent, Sargent’s have their mess and places they can spend their nights. He admitted that the Appellant came back and there was no evidence to show that the Appellant was seen coming back meant that he was within the camp. 164. Pw9 & Pw10 did not produce the CCTV footage and also admitted that they did not mention it in their statement .Pw10 did not give the Appellant’s description during his statement Pw12 , the Investigating officer was not sure about the person who was to deal with the charges . 165. Pw12 could not tell the Court the terms and conditions of the authority placing the Appellant in the guardroom. The Appellant contends that the document / authority of the Commanding officer did not exist, that the Appellant was not reached before raising the alarm and the Appellant’s commanding officer’s statement was not recorded. 166. That there was no evidence of phone signals to prove that his phone was traced outside the camp. His defense that he was at the Sargent’s Mess was not disputed and was uncontroverted. They never tried to look for him at the mess. 167. On his defense, the Appellant submits that the evidence of the Commanding officer was necessary to prove the reasons for the salary deductions but the prosecution blocked the said evidence. That the pay slip did not mention the lost kit as the reason for salary deductions Further that the Appellant was not consulted on the issue of the lost kit . 168. On points of law, the Appellant submits that Sections 156 and 157 of the Act were breached as the Investigating Officer had not forwarded the charges to the Commanding Officer. That he had an option to elect whether to be tried summarily by the a court Martial but this right was bypassed. 169. Section 212 of the Act provides that a person cannot be charged with an offence that was disposed off by the Commanding Officer. That the judge advocate did not consider this on his advice on points of law. 170. Lastly, Section 140(5) of the Kenya Defence Forces Act was applicable. That the Appellant being rank of a Sargent could not spend more than 42 days under closed arrest. Analysis and Determination. 171. I have considered the Court Martial Record, Appellant’s grounds of appeal and parties submissions filed in the appeal. The Appellant has right of appeal to this court and can challenge the judgment on facts and law. 172. This court’s duty is to reassess the Trial evidence and come up with independent conclusions on the veracity of the conviction but taking into account that the Court did not hear evidence directly from the witnesses. 173. Further and more important is that 1st Appeal Court will hardly interfere with the decision of the Trial Court unless it is demonstrated that the decision was not supported by the evidence on record. 174. In the case of Adan Muraguri Mungara –Vs- Republic [2010] eKLR Court of Appeal stated: “ Adan is now before us on his second and final appeal which may only be urged on issues of law (section 361 Criminal Procedure Code). As this Court has stated many times before, it 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 16

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arrive at such findings. That would mean that the decision is bad in law, thus entitling this Court to interfere.” 175. Section 188 of the Kenya Defence Forces Act also lists the powers of the High Court and provides that :Subject to Section 189 of the Act, the High Court shall— a. b. allow an appeal against conviction and quash the conviction if it considers that the conviction — i. is unreasonable; ii. cannot be supported, having regard to the evidence; iii. involves a wrong decision on a question of law; or iv. there was a miscarriage of justice, unless the court finds that no substantial miscarriage of justice has actually occurred; or dismiss the appeal. 176. I have considered the witness testimonies and documentary evidence on record by both Prosecution and the Defence. The Appellant faces the charges of Absence from duty without authority and Escape from lawful Custody following events of 6/9/2021 and 10/6/2022. 177. The prosecution’s case was that the Appellant was on duty at Mt Kenya training camp where he was assigned duty as a driver. The mission was for 7 days but the Appellant was not found on the night of the 6/9/2021 when he was expected to be on duty .He was later arrested at Moiben within Uasin Gishu County. He was brought to the guard room on 28/11/2021 where he was detained pending his trial at the court Martial. 178. The Appellant was in the guardroom with fellow service men .He went to throw the garbage with Spte Mwai on 10/6/2022 but the Appellant did not return to the guardroom .He was later seen on 29/6/2022. 179. The Appellant’s defence is that he was a Seargent and was not placed on closed arrest . That he was at the Seargents Mess where he had been sleeping in a room .That he was alone in the room and that he did not require permission to move out of the guardroom. Lastly that the charges were resolved by his Commanding officer and his salary was deducted as a result of the case. 180. The burden of proof is always on the prosecution and shifts to the defense in certain instances provided by law; Section 111of Evidence Act. In the case of Peter Wafula Juma & 2 Others- Vs- Republc 2014 eKLR the Court referred to the English case of Woolmington -Vs- DPP [1935] A.C 462 where the court Viscount Sankey L.C held that ; ‘’Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 181. Kenya adopted the English law and therefore on whether or not legal burden of proof could shift under any circumstances, it is now a well settled principle of law that, the legal burden of proof in criminal matters never leaves the prosecution’s backyard unless under Section III Evidence Act https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 17

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182. In Mkendeshwo -Vs- Republic [2002] 1 KLR 46, the Court of Appeal also affirmed this position holding that: “ In criminal cases the burden is always on the prosecution to establish the guilt of the Accused beyond any reasonable doubt and generally, the Accused assumes no legal burden of establishing his innocence.” 183. Having considered the evidence on record and grounds of appeal, the issues for determination are framed as follows:1. Legality of the trial 2. Legality of the Appellant’s closed arrest 3. Whether the prosecution proved the charges to the required legal standard/burden and standard of proof 4. The Appellant’s allegation of gaps and omissions in the prosecution’s case and whether conviction is affected. 5. The Appellant’s defense. 6. The sentence. Legality of the trial . 184. Section 150 of the Kenya Defense Forces Act (KDFA) refers to the process of reporting and investigations of offences. If a person who is subject to this Act is accused of an offence under Part VI, the accusation shall be reported in the form of a complaint to the accused’s commanding officer, and the commanding officer shall forward the complaint to the military police for investigation in the prescribed manner. 185. Section 156 of the Act explains it in terms of investigations and charges against Service men. That after investigations of a complaint against a service member, the investigating report and the charges will be forwarded to the commanding officer .The investigating report is in form of an abstract of evidence. The Commanding officer shall either: deal with the charge summarily , he may dismiss the charge or he shall refer the abstract of evidence and the charge in the prescribed manner to the Director of Military Prosecution. 186. Section 157 of the Act provides for the accused right to choose summary trial or a trial before a court Martial. That before dealing with a charge summarily, the Commanding Officer or appropriate superior authority, as the case may be, shall give the accused the opportunity to opt to be tried by a court-Martial. 187. Therefore, the Commanding officer has discretion to determine the case summarily. He may also opt to refer the case to Director Military Prosecution. I find that the power of the Commanding officer to determine the case is conditional and not mandatory, statute also uses the word may giving the Commanding Officer discretion in actions he takes after charges are forwarded to him. 188. Further from reading Section 157 of the Act above, the accused has right to elect the place and manner of trial, but this right is exercised where the Commanding officer decides to determine the case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 18

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189. Pw 12 stated that she investigated the case and that the evidence was forwarded to the Commanding officer. The officer stated during cross examination that the evidence and record from the Army Administration indicated that the Commanding officer did not conclude the case. That the case was referred to the Director Military Prosecution. 190. The Appellant contended that the trial before Commanding Officer was conducted and he was to be deducted Ksh 2000/- monthly as per payslip he presented during Trial. Dw2 explained that the deduction was in relation to a service kit that was lost amounting to Ksh47,524. 191. The summary proceedings by the Commanding Officer Lt Col Owiti were not produced to confirm conduct and determination in summary proceedings. The Abstract of Evidence referred to by Prosecution during cross examination of the Accused was objected to by the Defense Counsel and not produced as evidence. 192. At Pg 174 of Court Martial Proceedings; Defense Counsel raised the issue at the close of Prosecution case that; the 2 remaining charges had been handled by Commanding Officer and as such could not be handled by the Court Martial. 193. At Pg 175 of Court Martial Proceedings shows; The Prosecutor referred to Abstract of Evidence. The Accused person was remanded for Commanding Officer on 16/12/2021,for a charge of being absent without leave c/s Section 75.On the same date, after the matter was referred to CO, the case was read to accused on 20/12/2021 and the matter was referred to the Director of Military Prosecution. So these are charges which have never been dealt with summarily as indicated by the Defence. 194. For these reasons the summary proceedings alleged to have been conducted were/are not confirmed by evidence on record. Therefore, I find that the Court Martial trial proceedings were proper in law. 195. The Appellant also contended that the Trial and conviction were brought on withdrawn charges. The certified record of proceedings from the court Martial were brought before this court. The certification by the Defense Court Martial Administrator confirms the record as an accurate and true proceedings of the Court Martial. From the proceedings, the Appellant was charged with 4 Counts of offences during arraignment. Count 1 Conduct to prejudice of good order and service discipline c/s 121 of KDFA. Alternative Charge to Count 1Committing civil Offence c/s133 1 b of KDFA & Obtaining money by false pretenses c/s 313 of the Penal Code. Count 2 Conduct to prejudice of good order and service discipline c/s 121 of KDFA.Alternative Charge to Count 2 Committing civil Offence c/s133 1 b of KDFA & Obtaining money by false pretenses c/s 313 of the Penal Code. Charge 3 Absence without leave c/s 75 (1) & 75 (2) of KDFA Charge 4 Escape from Lawful custody c/s section 105 of KDFA Alternative to Count 4 Conduct to prejudice of Good Order & Service Discipline c/s 121 of KDFA On 8/12/2023 at Pg 166 of the Court Martial proceedings, the prosecution indicated that they had difficulty in sourcing the complainants of Charges 1& Alt Charge 1 and 2 & Alt Charge 2 .The prosecution’s application was for withdrawal of charges under Section 87 of the Criminal Procedure Code was the same allowed/granted by Court Martial. 196. On 12/4/2024, the court delivered its ruling on case to answer. The court was clear that it was dealing with count 3 and 4 of the charges and the Appellant was placed on his defense with regard to these charges Count 3. & Count 4. On 10/1/2025, the judge gave the verdict of the members and explained that the Appellant was found guilty in both Counts 1 and 2. He explained the counts count 3 as absence without leave and count 4 escape from custody at page 234 of Court Martial procedings. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 19

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197. The Appellant’s counsel also referred to the charges and sentences prescribed for these offences in mitigation submissions. I find that the parties were clear on the charges and final conviction by the Court Martial. 198. The Appellant also urged that trial could not proceed on withdrawn charges. His argument is that withdrawal of counts 1 and 2 meant that there was no basis for the remaining charges and conviction. 199. I have considered the particulars of the charges and the evidence adduced in the remaining charges. The trial and prosecution of charges 3 and 4 was not affected by the withdrawn charges. The particulars were independent and the transactions in the two charges were not related to the application for withdrawal. Legality of the closed arrest. 200. The Kenya Defence Forces Act defines “open arrest” as : when a person refers subject to this Act is confined to a defined area and liable to report his presence at stated times. 201. The Appellant referred to the provisions of Section 140 of KDFA which are intended to avoid delay after arrest and require immediate or expedited trial. 202. Section140 (2) of the Act provides that where a person remains in custody for eight days without being tried by a Court-Martial or dealt with summarily—a special report on the necessity for further delay shall be made by the person’s Commanding Officer to the Service Commander in the prescribed manner. Further reports shall be made every 8 days until the matter is determined. 203. Section 140 (3) of the Act provides that where an accused person is on active service, subsection (2) shall not apply except so far as is reasonably practicable, having regard to the exigencies of active service. Section 140(5) of the Act provides that where the proceedings have not began after 42 days the Commanding Officer shall hold the accused person under open arrest on such conditions as the Commanding Officer may determine. Compliance of Section 140 ought to have been raised during trial before Court Martial and not for the 1st time on appeal. 204. There is no provision exempting Sergent’s from being held in closed arrest. The Appellant’s claim that he was exempted is unproved by evidence on record. 205. Open arrest is allowed under the conditions of Section 140 (5) of the Act. The Appellant was in the guard room for 6 months before he escaped. He is not challenging the excessive days he spent without special reports extending the period under Section 140(2) of the Act or that he overstayed in closed arrest before the trial commenced. These grounds will not affect the conviction but are appropriate to direct compensation of damages for violations caused if need be. 206. Whether the appellant was to be in open arrest as Sergent and not closed arrest was not proved by evidence on record. Whether the prosecution proved the charges. 207. The prosecution’s case must be proved beyond reasonable doubt, it must be so strong to leave only a remote possibility /doubt . https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 20

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208. This was described by Lord Denning in the case of Miller v Minister of Pensions [1947] 2 All ER 372 with holding that “ .. the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it's possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 209. 210. Section 75 of the Kenya Defence Act provides for the offence of Absence without leave .That 1. A person who is subject to this Act commits an offence if that person— is absent without leave; or persuades or procures any person subject to this Act to be absent without leave………………………………. 2. A person who commits an offence under subsection (1) shall be liable, on conviction by a courtMartial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. Section 73 (3) lists the elements of the offence as follows:For purposes of this Act, a person absents himself or herself without leave if— 211. a. without authority, leaves his or her place of duty; b. without authority, is absent from his or her place of duty; or c. having been authorized to be absent from his or her place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorized. Simply put, the prosecution must prove that the accused left his unit or place of duty without permission. Pw 2 Major Naomi Ondieki testified that she was deployed at Officer Cadet as an Adjutant at KMA , she received information from Cadet intake who were on a Field Training Exercise at Mt Kenya “ that a driver who was attached to the intake was absent.” She stated that she received the information through a letter sent from Cadet Intake. 212. Pw2 raised an AWOL message and also referred court to an Abseight produced as exhibit 5. She explained that Abseights are sent 7 days after the person has not returned. The Abseight reports the missing service member and also restrict his salary pay. 213. Pw3 Captain Bakari Maina referred to the internal memo dated 1/12/2021 ,he referred to it as a REJAB message against the Appellant . He also and explained that it is raised when a service member is returning from being absent without leave .. 214. Pw4 WOII Hassan Dida gave detail on how he was posted at the Kenya Military Academy on 6/9/2021 and that he was at Larisoro camp with the Appellant That the Appellant had been at the place for 3 days . https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 21

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That the Appellant was assigned to drive Isuzu FTS 00 KA 44G , he had to go for 2 trips in the morning to the training camp and the 2nd trip .The Appellant came for the 1st trip at between-0645hrs -7:15 .That the vehicle he was assigned was there but there was no driver, as shown at page 71 of Court Martial Proceedings 215. Pw4 discovered that the Appellant was not around at about 7:30pm and he informed the Administrative Officer . Sgt Kioni , the MTO Motor transport HOD also informed him that he was not seeing the driver assigned the vehicle 00KA44G as shown. At page 72 of Court Martial Proceedings 216. Pw5 Sgt Kioni who was the incharge of Military Transport Battalion corroborated Pw4’s evidence on the Appellant’s assignment at Larisoro camp on 6/9/2021 .He stated that the Appellant he was given a detail to return and take breakfast for cadets ., he was driving 00KA44G, that the Appellant could not be found at tea break while the vehicle was at the training camp .He looked for him at the military tent and tried to call him but these efforts were in vain. 217. Sgt Kioni also raised an AWOL to Seargent Major WOII Dida who was appointed as CSO. He stated in specific duration of assignments are not given in case of trainings and that they have to stay behind until the operation was completed. Part One orders are not used during training areas.The documents indicating the persons attending were prepared by the Adjutant. That they take hourly breaks at the restroom. 218. Pw6 evidence was that he was assigned to apprehend the Appellant. He received instructions on 12/11/2021, the Appellant was traced at Moiben and was arrested on 28/11/2021 at 0045 hrs. He produced the incident report as Exhibit 6 219. The prosecution evidence proved that the Appellant left duty in the evening of 6/9/2021 when he was to take the 2nd trip, he was later traced at Moiben on 28/11/2021 where he was arrested by PW6. 220. The Abseight dated 14/9/2021 was produced in proof that the Appellant had been absent and/or could from 6/9/2021 at 0800hrs and did not respond after 7 days later. 221. The Appellant’s defense was that the charge was dealt with by Commanding Officer based at Kenya Military Academy. He had no document to prove the hearing. He stated the decision was to deduct Ksh 2000/- monthly. The Defense was not borne out by evidence on record. 222. Section 75 ( 2) and (3) of KDFA have been proved, the Appellant had been absent from his place of duty without authority and remained absent for he was assigned duty to drive the vehicle Isuzu FTS 00KA44G and he was a person who was absent without leave. He was not found in his unit or within the assigned duty. 223. The evidence was corroborated the witnesses above and remained uncontroverted. Eye witnesses disclosed the Appellant’s assigned place of duty on 6/9/2021 as Larisoro camp and the exact time and circumstances when he went missing. 224. Pw 5 stated that Part I orders did not apply in training .Pw2 the Adjunct at Cadet training confirmed that there was official documentation placing the Appellant at the duty and his tasks was in Mt Kenya .The document was not produced. 225. That notwithstanding, I find that the evidence was sufficient to prove the offence. 226. Charge 4 : Escape from Custody Contrary to Section 105 of the Kenya Defence Forces Act : https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 22

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Section 105 provides that :“A person subject to this Act who escapes from arrest, prison or other lawful custody (whether service custody or not) commits an offence and shall be liable, on conviction by a court-Martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act.” 227. The prosecution should prove that the Appellant was in lawful custody and that he escaped. The witness testimony came from pw 6 who was the arresting officer. He explained how the Appellant was placed under closed arrest in 9K at Eldoret pending facilitation and collection by his unit. 228. Pw 10 confirmed that the Appellant was one of the soldiers held at the guarding room and were with other waiting trial at the court Martial. 229. Pw10 had known the Appellant for 3 weeks. He stated that on 10/6/2022 he took a head count of the prisoners in the guardroom and he went to man the main gate where he was checking on vehicles accessing and exiting the barracks. 230. That he had few personnel and he opted to man the gate .His colleagues went for lunch and when they returned he took his lunch from the place where prisoners lunch had been organized. As he was washing his plate Spt. Mwai PW7 who was also held at the guardroom informed him of the dirt in the dust bin. Pw10 gave them permission to empty the buckets and this is when the Appellant and Spte Mwai went to empty the buckets .The Appellant was dressed in full combat . They were to come back but Spte Mwai came back alone. 231. He stated that Spte Mwai engaged him with stories to buy time for the Appellant to get out of the gate. 232. Pw10 said that “he got confused and forgot that someone was missing and had not come back to the guardroom .” 233. Pw11 and Spte Njuguna also did a head count during handing over of duty from P10. He realized that the Appellant was missing and together with SSgt Kaula, they reported the matter to Ssgt Kiprono .He did a perimeter search , he also searched outside and at some bushes where they found the Appellant had dumped his service combat . 234. The witnesses also told court that they confirmed these details from the CCTV.Pw11 stated that the Appellant took off when Pw10 had been at the guardroom 235. He stated that the Appellant was supposed to be in the guardroom at all times unless he was assigned duties like cleaning. Pw11 was on duty which made him the Appellant’s escorting officer. 236. PW11 corroborated Pw10’s evidence that the Appellant was found to be missing after the head count was done .They checked within and around the guardroom and the place they went to empty the dustbin . 237. The witness said that he saw and was aware of document placing the Appellant in the guardroom but he did not have it in court. The document did not state the conditions of placement. 238. Pw9 was the Senior Sergeant and In charge of the guardroom at around 1330hrs.He stated that he was informed that by Captain Njuguna about the incident, pw9 did a search in the guardroom the toilet and place he went to empty the bins .He also stated that the Appellant’s uniform was found at the place he had thrown the garbage .He also referred to CCTV footage where they saw him walk out through the main gate . https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 23

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239. He said that the Appellant had emptied bins before and he would always go back to the cell .Pw9 stated that the Appellant came back on 29 /11/2021 and that he was not escorted. 240. Pw7 said that he was with the Appellant in the guardroom and that they went to empty the bins. That he did not know his whereabouts when he went back to the sleeping room. 241. The prosecution evidence comprises eye witness testimony. The evidence was corroborated and established beyond doubt that the Appellant had been held at the guard room pending trial at the court Martial . He was allowed to throw the garbage on 10/6/2021 at around 1300hrs but he did not return to the cell.Witnesses testified that they found his combat uniform at the place and that the Appellant came back on 29/6/2021 without an escort. 242. The Appellant in his Defense stated he was of the rank of Sergeant and as non -commissioned officer when arrested was supposed to be placed under open arrest. He was to ask permission from In charge Police on duty. He stated he did not leave the camp and he was in Sergents Mess. If he left Moi Air Base it would have been through the Main Gate only. There was no other route. There were guards on duty always and CCTV camera and footage and were not presented during Trial to prove that he left the camp. 243. Section 111 Evidence Act provides; 111. 244. Burden on accused in certain cases (1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: PW10 stated that Sgt Kibiwott & Sgt Mwai to empty dustbin and he went for lunch and waited for them to come back and later only PW7 Sgt Mwai came back with dustbins and talked to him. When PW10 was handing over to Sgt Njuguna he did head count and found Sgt Biwott missing. They reported to Sgt Kiprono and searched all round the guard room area, near some bushes found he dumped the service combat he had on. If Appellant was in open arrest which Incharge Police on 245. Duty did he seek permission from? If he was in open arrest why disappear on pretext of emptying dustbin dump his combat uniform and not walk freely? Why did he remove service combat he had on while he lay inside the guard room? It is not disputed that he was in the Guard room had he challenged the closed arrest before the incident?, if so how when and where? He was arrested 28/11/2021by PW6.From 10/6/2022- 29/6/2022 he stated he was in the Sergents Mess and never left the Base/Camp and slept in room in the mess.. 246. The logical and reasonable issue was within his knowledge and he ought to prove that he was in the mess all this time and never escaped from custody. The Mess is manned presumably by an Incharge with key(s) to lock up and opened at some point to ensure security; there is cleaning daily for hygiene purposes and organization and administration of the facility to attend to various patrons each day. 247. Yet all the while the Appellant stayed inhouse without anyone vouching for him almost a fortnight on his whereabouts and presence in the Base/Camp? This Court finds the claim of being in the Mess through out this period far fetched and not plausible in the circumstances in the absence of any other evidence to prove the same other than the Appellants allegation only. The gaps and omissions in the prosecution’s case and whether conviction is affected https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 24

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248. The Appellant contends that failure to adduce CCTV footage , documents that the Appellant was to be working at Mt Kenya , the evidence of call logs trying to reach the Appellant after he had been absent from work and phone signals placing the Appellant outside the camp were not produced. Further that the Commanding Officer could only place him on close arrest with terms and conditions . 249. In resolution to these gaps , the prosecution has discretion to elect the type and number of witnesses to be called as long as the offence is proved. In Joseph Kiptum Keter v Republic [2007] eKLR the court referred to the Section 143 of the Evidence Act and the case of Bukenya Vs Uganda holding that :”Bukenya v Uganda [1972] EA 549 clearly states that the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.” 250. In cases where some witnesses or evidence is not called, the court has the duty to consider whether what was adduced proves the offence . In Timothy Kipngetich Kangongo v Republic, Eldoret CR Appeal No. 65 of 2018 the Court of appeal held that : “ It is therefore clear to us that in considering the effect of the failure to call a witness, the court ought to consider the evidence adduced vis-à-vis the evidence of the witness who was not availed. To deliver on this task, it is imperative to consider the elements of the offence charged and then assess whether the evidence on record proved all the prerequisite elements. In a charge of defilement, the key elements are age of the complainant, proof of penetration and identity of the perpetrator.” 251. In Bukenya v Republic 1972 ED 548, the Court of Appeal listed the following rationale for dealing with omitted evidence which is necessary to prove the offence. 252. The prosecution must make available all witnesses necessary to establish the truth even if there evidence may be inconsistent. The court has the right and duty to call the witnesses whose evidence appears essential to the just decision of the case. 253. When the evidence called is barely adequate the court may infer that the evidence of uncalled witnesses would have tender to be adverse to the prosecution. 254. I find that firstly, the charges indicate the dealings by the Commanding Officer when he was remanded on 16/12/2021 and later referred to the Director Military Prosecution on 24/12/2021.This was corroborated by DW1 Major Nelson Muthomi Marimi , at page 211 and proceedings of 4/10/2024 . 255. On the Appellant’s terms of closed arrest, Section 140 of the Kenya Defence Forces Act indicates that the Commanding Officer places the accused in close arrest. That terms and conditions are only given where the trial has not commenced within the 42 day limit. 256. In this case, from the Court Martial proceedings the Appellant was in the guardroom during the trial after he was apprehended and after the apprehension and during the trial. The Appellants challenge of the closed arrest without proof of terms and conditions issued by his commanding officer ought to have been raised during tial not from the 1st time on appeal. Also that he was Sergeant and was in open arrest able to move without permission. 257. With regard to omission of CCTV footages, the warrant officers and those incharge of the guardroom and security referred court to CCTV footages which showed the Appellant exiting the barrack through the main gate on the day he disappeared. The Appellant was allegedly seen coming back on 29/11/2021.They also referred to the Appellant’s clothing as he exited and his combat which he left behind in a nearby bush. The evidence of CCT and service combat were not brought before court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 25

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258. CCTV footages and electronic evidence cannot stand alone. In this case, it would only serve to corroborate the testimony of several witnesses on a single fact that the Appellant left guard room to empty dust bin and PW7 his inmate came back alone PW10 & PW11 conducted head count of inmates and the Appellant was missing. The direct evidence is cogent and tangible CCTV would have corroborated the facts further. It is not fatal the CCTV footage was not availed during trial as the witness presented distinct evidence during trial. 259. There is no dispute that the Appellant was held at guardroom for reasons disclosed above. The Appellant went to throw the dustbins as per eye witness testimony from his colleague and guards on shift who gave him permission. 260. The issue is that no witness saw him escape and could also not establish the route used .The CCTV footage could fill these gaps. 261. That the omission of CCTV footage does not dislodge the fact that he was not within in the guardroom from 1300hrs on 10/6/2022 until 29/6/2022. The witnesses jointly stated that he could not leave the guarding room without permission. Where was the Appellant for 19 days? 262. I find that circumstantial evidence proved the case and that omission of CCTV footage call logs and data did not affect the conviction. The Appellant’s defence . 263. As already noted, the burden of proof does not leave the prosecution. The accused would retain the evidential burden to establish prove facts he relied on. The accused case ought to cast doubt in the prosecution case. 264. I have considered the facts in the defense case, the fact that sergeants could not be placed in closed arrest had to be supported by law or some standing operation order in the military. The prosecution witness No. 9, 10 and 11 were shift commanders of the rank of sergeant and senior sergeant .The witnesses gave credible evidence on standard procedure and operations of guarding suspects. 265. Pw7 Spte Mwai stated that the Appellant was one of inmates in the guard room. Pw 10 Ssgt. Kaula gave them permission to empty the dustbins and all officers explained that they had to be escorted and required permission to leave the guard room. Pw10’s case was that the Appellant sneaked out when the gate was unmanned and when the shift commanders were at the guarding room. 266. Appellant’s further defense is that he was already charged and penalized by the Commanding Officer. From the review given by Dw2 and Dw3 on the records from the military headquarters and the charge sheet, it is apparent that the commanding officer referred all the 4 charges to the Director Military prosecution to be determined by the Court Martial without reservations. I find that the defense was not plausible. The Sentence. 267. The Appellant was heard in mitigation where he prayed for leniency. The Court Martial sentenced him a 2 year jail term for the offence of Escape from custody and additional 2 years jail term for the offence of Absence from Duty. 268. The Appellant had served his sentence at the time of his appeal .He was sentenced on 10/1/2025 and had been in custody since 28/11/2021. The Court Martial also applied Section 333(2) CPC that computation of sentence commences from date of arrest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 26

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269. That notwithstanding, this court must perform its function by reassessment of the facts and legality or appropriateness of the sentence. 270. In Bernard Kimani Gacheru vs. Republic [2002] eKLR, the Court of Appeal settled the extent of interference of the trial court’s sentence : That: “ It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” 271. Section 105 of the Kenya Defence Forces Act provides that the person found guilty for the offence of Escape from custody “ shall be liable, on conviction by a court-Martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act” 272. Section 75 (2) of the Act refers to Absence without duty and also provides that the person convicted shall be liable, on conviction by a court-Martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. 273. The statute prescribed the maximum penalty which also came with discretion to consider a lesser or alternative sentence. 274. I note that the court failed to consider that the Appellant was a first offender and the mitigation statement. The The court would have settled for a lesser period or a non-custodial sentence as he is 1st offender. However, the sentence was within the statutory period and appropriate considering the nature of offences and that they run consecutively. The Court finds that the Appellant committed subsequent offence while in custody during trial for the 1st offence of absence without leave. 275. The Appellant was dismissed from duty and his only prayer is for reinstatement back to the force. The provisions of Section 181 of the Kenya Defence Forces Act states as follows:“ If a service member is sentenced by a court-Martial to imprisonment, the member shall also be sentenced to dismissal from the Defence Forces and, if the court-Martial fails to sentence the member to such dismissal, the sentence of imprisonment shall not be invalid but shall be deemed to include a sentence of such dismissal.” 276. Therefore, dismissal from duty applies in mandatory terms where a service man is convicted and sentenced to imprisonment. Disposition 277. This court upholds the conviction of the Court Martial on the two counts &sentence of 2 years imprisonment each Count to run consecutively. The appeal is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 27

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JUDGMENT DELIVERED DATED & SIGNED IN OPEN COURT CRIMINAL DIVISION HIGH COURT NAIROBI ON 16/4/2026. M.W. MUIGAI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5562/eng@2026-04-16 28

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