Shikutwa v Ministry of State for Defence and others & 4 others (Civil Appeal 254 of 2017) [2023] KECA 1285 (KLR)

Court of Appeal of Kenya

27 October 2023

ASAsike-Makhandia AMA. Murgor JMJamila Mohammed

2,691 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that a military officer who skips his disciplinary hearing cannot later claim his dismissal was unfair.

What this practically means

Executive summary

The appellant, an ordained Catholic priest seconded to the Kenya Armed Forces in 2003, challenged the termination of his commission effective 9th October 2008, alleging that no proper Defence Council meeting was held, no Investigation Board was properly constituted, he was not accorded a hearing, and no reasons were given. The trial court (ELRC) upheld the termination but awarded him Kshs.345,000 in special damages (unpaid house allowance, leave in lieu, and erroneously deducted rent), with interest, and directed the respondents to facilitate payment of his gratuity. The appellant appealed on five grounds, contending principally that the disciplinary committee handling his case was not properly constituted under Chapter 18 of the Armed Forces Standing Orders and that his rights to fair hearing, fair labour practices and fair administrative action were violated. The respondents maintained that a board of inquiry was lawfully convened under Section 223 of the repealed Armed Forces Act and that the appellant was summoned but refused to submit to its authority. The Court of Appeal, as a first appellate court, reconsidered the evidence under the Selle principles. It held that Section 223(1)(d) of the repealed Act empowered the commanding officer to convene a board of inquiry, that the appellant was afforded an opportunity to appear before the board but declined, and that having failed to appear he could not complain of unlawful de-commissioning. The Court affirmed the trial court's finding that the appellant was properly de-commissioned, dismissed the appeal with costs to the respondents, and held him not entitled to compensation for unfair dismissal.

Key legal issues

Whether the board of inquiry convened under Section 223 of the repealed Armed Forces Act was lawful despite the appellant's reliance on Chapter 18 of the Armed Forces Standing Orders

Holding

Section 223(1)(d) and (2) of the repealed Act empowered the commanding officer to convene a board of inquiry into the matter, and the board so convened was lawful.

Reasoning

The Court found that Section 223(1)(d) of the repealed Armed Forces Act gave a commander authority to convene a board of inquiry in instances of dispute between the parties. The respondents' witness confirmed a board was convened and the appellant summoned but he refused to submit to its authority. The appellant produced no written evidence before the ELRC to rebut that testimony. Accordingly the trial Judge did not err in finding the de-commissioning proper.

p. 5

Whether the appellant was denied a fair hearing and natural justice before termination of his commission

Holding

No denial of natural justice arose because the appellant was afforded an opportunity to appear before the board but declined to do so; he cannot then complain of unlawful de-commissioning.

Reasoning

Applying Ridge v Baldwin and Judicial Service Commission v Mbalu Mutava, the Court reaffirmed that the right to a fair hearing applies to administrative bodies. However, the appellant was notified and summoned before the board of inquiry and chose not to appear. Having failed to take the opportunity to be heard, he could not claim the termination was unlawful, and he was therefore not entitled to compensation for unfair dismissal.

Legal principles established

On a first appeal, the Court of Appeal reconsiders and re-evaluates the evidence and draws its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses.
Natural justice and the Constitution must be adhered to before a person is dismissed from employment; a party afforded an opportunity to be heard who declines it cannot later complain of unlawful termination.
The rules of natural justice, in particular the audi alteram partem rule, apply not only to bodies acting judicially but also to bodies exercising administrative duties.

Court orders

1.The appeal is dismissed with costs to the respondents

Authorities

Legislation

Armed Forces Act (repealed)Section 223
Armed Forces Act (repealed)Section 223(1)(d)
Armed Forces Act (repealed)Section 223(2)
Armed Forces Act (repealed)Section 171(2)
Armed Forces Standing OrdersChapter 18
Armed Forces Standing OrdersChapter 22
Armed Forces Standing OrdersChapter 13 para 2(h)
Retired Constitution of KenyaSections 76 and 77

Cases cited (4)

Selle & Another v Associated Motor Boat Co. Ltd. & Others
[1968] EA 123
Abdul Hameed Saif v Ali Mohamed Sholan
[1955] 22 EACA 270
Judicial Service Commission v Mbalu Mutava & another
[2015] eKLR
Ridge v Baldwin
[1964] AC 40

On appeal from: Employment and Labour Relations Court; Not stated in judgment
Jurisdiction invoked: First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (provision not stated in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Shikutwa v Ministry of State for Defence and others & 4 others (Civil Appeal 254 of 2017) [2023] KECA 1285 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1285/eng@2023-10-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.