In a stinging defeat for the state, the High Court in Mombasa yesterday freed 25 ex-soldiers sentenced to life imprisonment for desertion by a court martial.
Judge Martin Muya acquitted the ex-soldiers and said the Kenya Defense Forces and the Office of the Director of Public Prosecutions had not proved they abandoned duty.
They may had gone to work for private American security firms in the Middle East in 2007 and 2008 and had written letters of resignation.
"The charge of desertion has not been proved and the court has made a finding that they were only absent without leave," Muya ruled.
"The ex-soldiers are hereby set free," he said.
The judge refused a request by Assistant DPP Alexander Muteti to stay his judgement while the state appealed.
Muya said acquittal was based on the time they have been in custody since they were sentenced in February last year.
The time spent in custody is sufficient punishment for being absent without leave, the judge ruled.
The ex-soldiers appealed the conviction by the court martial in Mtongwe and said the charges of deserting during wartime were defective.
The soldiers had argued that the offences ofr which they were convicted were alleged to have taken place in 2007, but the law they allegedly broke was enacted in 2012.
They were accused of leaving KDF on various dates in 2007 and 2008 and going to work for private American security firms that deployed them to Afghanistan, Iraq, Kuwait, Syria and Jordan.
Kenya was not at war when they left the military and they had been properly discharged, the men had argued.
"The charge sheet is defective since the appellants did not desert duty but were absent without leave and had written resignation letters before leaving the military," said lawyer Gikandi Ngibuini, representing one ex-soldier.
The ex-soldiers said they were wrongfully tried under the Kenya Defence Forces Act 2012, though they left the military under the Kenya Armed Forces Act.
They said it was unconstitutional for KDF to hold them in prison and called their incarceration unconstitutional.
Ngibuini had also argued the soldiers had the right to stop working for the military when they wanted, since they were not enslaved.
The defence lawyers said KDF cannot deliver justice to their clients and they were serving an illegal sentence.
They are entitled the same constitutional rights as other Kenyans, the lawyers said.