Appellate review for factual sufficiency: how rara an avis?

Should the U.S.'s service courts of criminal appeals continue to have the power under art. 66(d)(1), UCMJ, to determine factual sufficiency? That power may be less extraordinary than one might think, even if it's rare among American court systems. Consider this language from a court-martial appeal decided by the High Court of Kenya in Katitu v. Republic, Court-Martial App. No. 8 of 2017 (Kenya High Ct. 2017):

As the first appellate court, this court is required to re-consider and to re-evaluate the evidence adduced before the court martial so as to arrive at its own independent determination whether or not to uphold the decision of the court martial. In doing so, this court is required to always bear in mind the fact that it neither saw nor heard the witnesses as they testified and therefore give due regard in that respect. (See Okeno v. Republic [1972] EA 32.)

On re-evaluation of the evidence adduced before the court martial, and on consideration of the submission made by the counsels for the parties to this appeal, it was clear to this court that the charge that was brought against the Appellant that he deserted from his place of employment was not established to the required standard of proof beyond any reasonable doubt. The Appellant in this appeal, from the evidence that was adduced before the court martial served with distinction on three tours of duty in the war zone in Somalia. This was between March 2011 and December 2014. This was under the auspices of AMISOM and Operation Linda Nchi. During this period, it was apparent from the evidence that the Appellant’s family life was affected. He was granted leave upon his return to the country. Upon resuming work from leave, he was sent to Garissa to man a roadblock under Operation Maliza Ugaidi.

It was during this period that his family problems came to head. It was also during this period that the post-traumatic stress disorder that the Appellant suffered while he was in Somalia became a mental illness. The Appellant’s superiors should have noticed that the Appellant was not in a position to be sent in an operation zone in his mental condition. The record that was produced before the court martial indicated that the Appellant gave exemplary service to the nation when he was on duty in Somalia. Unfortunately when he returned home, his mental health condition was not accorded the treatment that it deserved. The Appellant’s failure to return to work should have been considered by the Kenya Defence Forces in the context of his mental health. Again, tragically, instead of the Appellant’s medical problem being resolved by medical intervention, a decision was made to look at his absence from work as a criminal matter.

That the Appellant saw it fit and appropriate to seek medical intervention from a traditional doctor from an illness that he got while serving this country is a bad reflection on how he was treated by his employer. When PW6 testified before court, it appeared that the prosecution wanted him to testify on the Appellant’s then mental health status and not previously when he had sought medical intervention from a traditional medical doctor. PW6 was prevented by the prosecutor’s intervention from giving a detailed mental health status of the Appellant. It is therefore the finding of this court that the Appellant established that he was not in a healthy state of mind to return to work when it is alleged that he absented himself without leave.

In the premises therefore, this court holds that the prosecution failed to establish to the required standard of proof beyond any reasonable doubt that the Appellant absented himself without leave in accordance with Section 74(1)(a) as read with Section 74(2)(e) and Section 74(3)(b) of the Kenya Defence Forces Act. The Appellant’s appeal is allowed. His conviction is quashed. All the orders issued pursuant to the said conviction are set aside. The Kenya Defence Forces is ordered to consider the Appellant’s case with a view to giving an appropriate and satisfactory remedy to the Appellant. It is so ordered.

Did you notice that the appellant had been released on bail pending appeal?