Erastus Hezbon Otieno v Director of Military Prosecutions & another [2020] KECA 390 (KLR)

Facts

Major Erastus Hezbon Otieno (applicant) seeks orders that the proceedings in Court Martial Criminal Case Number 2 of 2019 be stayed pending the hearing and determination of his intended appeal against the judgment of the High Court (W. Korir, J.) delivered on 31st October, 2019.

Issues

1. Whether the jurisdiction of the Court Martial has been ousted by the provisions of the Defence Forces Standing Orders.
2. Whether the intended appeal is arguable and would be rendered nugatory if the orders sought are not granted and the appeal succeeds.

Reasoning

The Court considers the jurisdiction under Rule 5(2)(b) of the Court’s Rules discretionary and guided by the interests of justice. The appeal is arguable as there is a single bona fide arguable ground involving specified civilians, civilian property, and civilian accomplices. The Court finds that the intended appeal is arguable and that the appeal will not be rendered nugatory if the orders sought are not granted and the appeal succeeds.

Outcome

The application for stay of proceedings and bail pending hearing and determination of the intended appeal is granted.

Authorities cited