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KDF soldier challenges legality of court martial’s six-month jail sentence
A Kenya Defence Forces (KDF) soldier convicted and jailed for six months for soliciting a bribe to influence the recruitment of a Kenya Navy officer has challenged the legality of the court martial that presided over his case.
Sergeant Robert Kipkemoi, formerly of the Kenya Air Force, lost his job earlier this month after being found guilty of soliciting a bribe.
Through his lawyer Duncan Kiprono, he is now seeking the intervention of the High Court to overturn the sentence and reinstate him to his former position, saying he was jailed for someone else’s crime.
In court documents seen by the Nation, Kipkemoi has identified 21 issues that he calls exceptional grounds, or rather unusual circumstances, on which the court can fairly conclude that he was wrongly convicted.
He has challenged the legality of the sentence imposed on him, claiming that he was convicted on the basis of conflicting evidence that was not corroborated by impartial witnesses other than the complainants.
The convict has also expressed dissatisfaction with his trial at the Kahawa Court Martial, claiming that it was deliberately biased and violated his constitutional and legal rights and freedoms.
“The Judge Advocate/trial magistrate imputed evidence against me despite the prosecution and its witnesses failing to direct the trial court on which evidence applied to what count I was charged with,” he said in his court documents.
He has also challenged the composition of the sitting members of the court martial, claiming that most of them were not legally approved and recognised to preside over and decide on the trial, conviction and sentencing in the court martial.
Kipkemoi has also raised doubts about how the court martial tried, convicted and sentenced him without verifying his identity.
For example, Kipkemoi argues that the two prosecution witnesses identified the person who solicited bribes from them as Robert Mutai, and that their description did not match him.
“Also, the order for the committal to civil prison on an award of imprisonment by the trial court martial was issued against Robert Kipkemoi Kirwa, who is not me. To say the least, the trial court martial conviction and sentence was rendered without trial proof beyond reasonable doubt on the question of the identity of the accused,” he said.
The convict was charged with two counts of conduct prejudicial to good order and discipline.
He was accused of soliciting money from Joseph Kimutai Choge on various dates between February 9 and April 11, 2021 under the pretext that he had influenced the recruitment of Mercy Chepkemoi Choge into the KDF.
Kipkemoi also faced the second count where he was accused of soliciting money from Mercy on the pretext of influencing her recruitment into the military.
The court was informed that a person called Sergeant Mutai visited Kimutai’s residence and demanded about Sh400,000.
The investigating officer in the case was Captain Festus Aduol Ademo, a member of the Military Police Corps responsible for conducting investigations within the military.
In his testimony, he said that he arrested Kipkemoi on April 12, 2021 at the medical screening tent during the verification process for recruits at the Recruits Training School.
“I arrested Kipkemoi after interrogating and recording statements from the witnesses, the accused and also investigating their phones and phone call data,” he said.
He then produced documents relevant to the case which showed that Kipkemoi was a Physical Training Instructor (PTI) by trade.
In his defence, Kipkemoi said that he was on leave from February 2 to March 5, 2021.
The KDF recruitment started on February 8, 2021 and ended 11 days later.
Kipkemoi denied the allegations but admitted to having been in contact with Mercy. He also confirmed that he had visited Mercy’s parents’ home on February 11, 2021, but denied any allegation that he had demanded payment.
He said he had gone to check on Mercy because of her muscle pain.
Cheruiyot Kirui also testified that he accompanied Kipkemoi to Mercy’s home after the recruitment was completed.
“The purpose of visiting Ms Choge‘s (Mercy’s) home was to congratulate her and give advice on general wellbeing to keep fit before reporting to RTS,” he said.
He also told the trial court that it was Mercy who initiated communication with Kipkemoi, when she called him on February 11 and asked him to meet her at a church near her home.
“Kipkemoi did not demand any money for the whole time we were at the witness’ home,” Kirui said.
However, Judge Advocate Bernard Ochoi found Kipkemoi guilty on both counts and sentenced him to six months imprisonment, to run concurrently.
He also ordered Kipkemoi’s dismissal from the service. Kipkemoi has since filed an appeal seeking to overturn these findings. The case will be heard on January 2.
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