KDF officers file an application to stop court proceedings
17 April 2014, 10:32
Nyeri - A group of 26 ex-KDF soldiers charged with deserting duty have made an application before the Mombasa high court seeking a stay order and release on bail.
The remanded soldiers have filed the application before Justice Edward Muriithi through their lawyers Henry Kauraka and Daniel Mwanyale
Karauka told justice Muriithi that the petitioners’ fundamental rights had been violated during the conferment of his client upon reporting at the Mtongwe Army base in Mombasa.
He said the right to information in accordance with Act 35 (1b) of the Kenyan constitution had been violated since the petitioners were not provided with the information about their arrest and charges.
Karauka said the court violated the confinement Act 64 of the KDF Act that provides that an officer arrested should not be detained for more than 8 days before being arraigned in court.
“Their confinement was not put in any affidavit or writing before any court and they were charged after 45 days and provided with an abstract of evidence a day before they were charged,” said Karauka.
He requested justice Muriithi to stop the martial court from proceeding with the case at Mtongwe until the issues raised in their petition are disposed.
However, Erick Eredi, the lawyer representing the DPP, objected to the application on the basis that the law was only applied on the accused persons who are members of the KDF.
Eredi dismissed claims that the petitioners’ right to information had been violated.
He said the petitioners should address their applications to the tribunal at the martial court.
The state council, Alexander Muteti said that certain rights are limited to members of the KDF.
“The KDF members are highly trained in weapon handling and other military training and are not just normal citizens,” said Muteti
Muteti said the constitution had imitated the rights of the KDF officers to ensure the discipline forces carry out their mandate in accordance with the law.
He said the petitioner had not followed the right procedure in applying for the stay of the martial court proceedings since the matter is not within the jurisdiction of the high court.
Muteti’s argument was dismissed by the petitioner’s lawyer Kamunda who said the martial court is a subordinate court.
“Article 33 gives an exclusive jurisdiction to the high court to hear and determine any case that is threat to all fundamental rights," said Kamunda.
He said KDF martial court is a subordinate court and in case of any inconstancy, then the KDF Act is null and void.
Justice Muriithi is set to give the ruling on the two applications on April 30, 2014.
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