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|Case Number:||Criminal Appeals 89, 96, 106, 107, 108, 109, 127, 128, 129, 130, 134, 138, 139, 140, 141, 198 and 199 of 1985 (Consolidated)|
|Parties:||Ondari & 17 others v Republic|
|Date Delivered:||26 Jan 1986|
|Court:||Court of Appeal at Mombasa|
|Judge(s):||James Onyiego Nyarangi, Alister Arthur Kneller, Chunilal Bhagwandas Madan|
|Citation:||Ondari & 17 others v Republic  eKLR|
|Case History:||(Appeals from the High Court at Mombasa, Bhandari J)|
|History Judges:||Raj Bahadar Bhandari|
Ondari & 17 others v Republic
Court of Appeal at Mombasa January 26, 1986
Madan Ag CJ, Kneller & Nyarangi JJA
Criminal Appeals Nos 89, 96, 106, 107, 108, 109, 127, 128, 129, 130, 134,
138, 139, 140, 141, 198 and 199 of 1985 (Consolidated)
(Appeals from the High Court at Mombasa, Bhandari J)
Court martial – appeal from a sentence by a court martial to the High Court – whether second appeal to the Court of Appeal lies – Armed Forces Act (cap 199) section 115(3).
Appeal – second appeal – from decision of High Court on an appeal from court martial – whether such appeal is competent – Armed Forces Act (cap 199) section 115(3).
Sentencing – remission of - dissimilar sentences – whether such sentences proper- Prisons Act section 46(4).
The appellants were charged separately before a court martial with mutiny contrary to section 25(2) of the Armed Forces Act (cap 199).
Each of them pleaded guilty and were handed sentences of imprisonment ranging from 4 to 10 years and all of them were dismissed from the armed forces.
Their appeals to the High Court were summarily dismissed and they appealed to the Court of Appeal.
1. The decision of the High Court on an appeal to it under the Armed Forces Act (cap 199) is final and not subject to a further appeal.
2. The appeals were therefore incompetent and had to be dismissed.
3. (Obiter) Courts aim at parity of sentences to obviate grievances of discrimination among prisoners. The sentences passed in these cases were greatly disparate and the Court would recommend them to the Commissioner of Prisons and the Minister for remission under section 46(4) of the Prisons Act.
Okang, Young Charles v Republic (1982-88) 1 KAR 276
1. Armed Forces Act (cap 199) sections 25(2), 115(3)
2. Prisons Act (cap 90) section 46(4)
3. Criminal Procedure Code (cap 75) section 352(2)
Mr Gachuhi for the 4th Appellant
15 Appellants Unrepresented
2 Appellants absent and unrepresented
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(Coram:Madan Ag CJ, Kneller & Nyarangi JJA)
CRIMINAL APPEALS NO,S 89, 96, 106, 107, 108, 109, 127, 128, 129, 130, 134, 138, 139, 140, 141, 198 and 199 OF1985 (CONSOLIDATED)
ONDARI & 17 OTHERS......................................................APPELLANTS
(Appeals from the High Court at Mombasa, Bhandari J)
We consolidated these appeals with the consent of the principal state counsel and Mr Gachuhi for Beauchamp Juma Ogolo Akengo the appellant in (Criminal Appeal No 107 of 1985) and all the other 15 appellants who were unrepresented and present save for two who had served their sentences and been released.
Each appellant was charged separately before a court martial with the offence of mutiny contrary to section 25 (2) of the Armed Forces Act (cap 199) (the Act).
The particulars alleged that on August 1, 1982 being a serviceman in the armed forces and subject to the Act, he combined together with other soldiers of the Kenya Air Force to disobey lawful authority in such circumstances as to make the disobedience subversive of discipline, and took part in a mutiny by unlawfully arming himself with a self loading rifle and ammunition from the station’s armoury without proper authority and unlawfully patrolled the residential and commercial streets of Nanyuki (or some part of Nairobi (according to where he was stationed) with the object of creating fear and disruption of social order in Kenya.
Each was defended by an officer. Each unequivocally pleaded guilty to the charge apparently and its particulars. The defending officer mitigated the offence by stressing the number in the appellant’s family he had to support, his previous good character, his plea, his comparatively young age and how he saw the error of his ways and was full of remorse.
The sentences passed on the appellants ranged from 4 to 10 years imprisonment (which seem to us to be very disparate and cause us great concern) and each was dismissed from the armed forces.
Later each received a document entitled ‘Promulgation of findings, sentence and orders which informed him that all these pronounced by the Court Martial at this recent trial had been confirmed by the confirming officer who was the army commander and deputy chief of general staff. A final sentence added that the appellant had forfeited his service benefits having been dismissed from the armed forces.
Each filed in a notice of application to the High Court in Mombasa for time in which to appeal to be extended. He also added an application for leave to appeal against his conviction and his sentence with five or six grounds of appeal.
The grounds were that they did not or did not mean to plead guilty or he was over persuaded or even tortured into doing so, if what he did amounted to mutiny he was only obeying the orders of one or more superior officers, the defending officer was not of his choice and he did not defend him. There is nothing in the record of the proceedings to support any of these.
Mr Justice Bhandari certified that he had perused the record in each appeal and that he was satisfied the appeal had been lodged without any sufficient ground for complaint. He summarily rejected it under section 352 (2) of the Criminal Procedure Code (the code).
The particulars of the offence, it might be argued, were duplex. There are no convictions in even of these cases. And, with respect, the grounds of appeal did not come within the limits of the provisions of sections 352 (2) of the code. Firstly looked at, they were not limited to a complaint that the conviction was against the weight of the evidence. Whether or not they would have prevailed is another matter. They were such, however, that the judge was right to reject the appeal summarily. See Young Charles Okang’ v Republic KCA Criminal Appeal 98 of 1983 (June 30, 1983).
The learned judge did not hear the appellants in their applications for the time in which to appeal to be extended or for leave to appeal but, in effect, he granted each application and went straight to deal with their appeals. So the appellants were not prejudiced by his leep frogging procedure. He then refused leave to appeal which was either his answer to the second application, which if he had summarily rejected the appeal earlier was unnecessary, or an attempt to halt an appeal to this court which he had no jurisdiction to do.
There it is, however, a decision of the High Court on an appeal to it under the Act and such it is final and not subject to a further appeal from December 28, 1984. See section 115 (3) of the Act.
The appeals are incompetent and must be dismissed. Those are the orders of the court.
We have referred to the greatly disparate, sentences passed in these cases ranging from 4 to 10 years. We would draw the attention of the commissioner of prisons and the minister to the provisions of section 46(4) of the Prisons Act which allows remission to be granted for “other special” grounds. The courts always aim at parity of sentences to obviate the grievances of discrimination among prisoners. We would recommend that the sentences passed in these cases be reviewed with the object of removing harshness out of these sentences which are obviously disparate.
Dated and Delivered in Mombasa this 26th day of January 1986.
JUDGE OF APPEAL (AG CJ)
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy
of the original