ADVOKS GLOBAL · KENYA
Kenya Defence Forces Act
189. Powers of court in special cases
Edition: 2022-12-31 · In force
189. Powers of court in special cases
(1)If the High Court determines that an appellant—(a)was not properly convicted on a particular charge brought before the court-martial; and(b)was properly convicted on some other charge so brought,then, if the sentence passed by the court-martial on the appellant was not one which could lawfully be passed for the offence of which the appellant was convicted on that other charge, the High Court shall pass on the appellant such sentence as it thinks proper, in substitution for the sentence passed by the court-martial.(2)If an appellant has been convicted of an offence, and—(a)the court-martial could lawfully have convicted the appellant of some other offence; and(b)it appears to the High Court that the court-martial shall have been satisfied of facts which proved the appellant guilty of that other offence,the High Court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the other offence and pass on the appellant such sentence as it thinks proper (being a sentence which could lawfully have been passed for that other offence and not one of greater severity), in substitution for the sentence passed by the court-martial.(3)If—(a)an appellant has been convicted of an offence committed in circumstances involving the greater of two punishments, and it appears to the High Court that the court-martial ought to have found the appellant guilty of an offence as being committed in circumstances involving the less punishment; or(b)an appellant has been convicted of an offence and it appears to the High Court that the court-martial ought to have convicted the appellant of the offence subject to exceptions or variations,the High Court, instead of allowing or dismissing the appeal, may substitute for the conviction a conviction of the offence as being committed in circumstances involving the less punishment or, as the case may be, a conviction of the offence subject to exceptions or variations, and pass on the appellant such sentence as it thinks proper (being a sentence which could lawfully have been passed, for the offence specified or involved in the substituted finding and not one of greater severity) in substitution for the sentence passed by the court-martial.(4)If, on an appeal, the High Court considers that the appellant did the act or made the omission charged but was insane so as not to be responsible for the acts or omissions at the time when the act was done or the omission was made, it shall quash the conviction and substitute a special finding that the appellant was guilty of the act or omission charged but was insane, and section 179(2) shall apply accordingly.(5)The term of any sentence of imprisonment passed by the High Court under this section shall, unless the High Court otherwise directs, run from the time from which it would have run if it had been passed in the proceedings appealed against, and a sentence passed by the High Court shall be deemed for the purposes of this Act to be a sentence passed by the court-martial.