Attorney General v W.O.1 Samuel Chege Gitau & 283 others (Civil Appeal E093 of 2021) [2023] KECA 1386 (KLR)
The bottom line
#The Court of Appeal upheld awards for 284 former Kenya Air Force servicemen tortured and unfairly dismissed after the 1982 coup attempt.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over fundamental rights violations arising from employment
The ELRC was properly clothed with jurisdiction; its jurisdiction extends to constitutional issues intricately connected with labour issues
Relying on the Supreme Court's decision in Karisa Chengo and this Court's decisions in Mugendi, Nicky Njuguna and ICIPE, the court held that Article 165(5)(b) does not oust the ELRC's jurisdiction over rights violations arising from employment. A suit may be a 'mixed grill' raising both contractual and constitutional issues, provided it is filed in the appropriate forum. The suit, anchored on the employment relationship, fell squarely within the ELRC.
Failure to appeal interlocutory rulings on limitation and joinder
The issues of limitation and joinder were definitively settled by the unappealed interlocutory rulings and became res judicata; this court had no jurisdiction to reopen them
Following Mawathe Julius Musili (SC), Alba Petroleum and Morris Ngundo, the court held that where no appeal is lodged against an interlocutory ruling, the issue is conclusively determined. The appeal stemmed from Nduma J's judgment, not the rulings of Aluoch, Ojwang and Nambuye JJ. Obiter, the court indicated it would nevertheless have found a plausible explanation for the 12-year delay, given that '82 Air Force' was an illegal entity until KAF's reinstatement on August 25, 1993.
Whether the trial court was functus officio when determining quantum
Nduma, J. was not functus officio; a court retains control until the consequential decree is issued, signed and sealed
Applying Raila Odinga (SC), Telkom Kenya v Ochanda, KBC v Wakio and English authorities on judicial tergiversation, the court held that assessment of quantum is incidental to the final decision and within supplemental jurisdiction. The decree of April 15, 2016 was only signed and sealed on November 8, 2017, so the quantum judgment of September 22, 2017 was lawful; functus officio set in only after November 8, 2017.
Whether reserving quantum, ordering filing of computations and inviting presentations after judgment shifted the burden of proof or abdicated judicial function
The procedure was a proper exercise of inherent jurisdiction; it neither delegated the judicial function nor shifted the burden of proof
The court distinguished Telkom Kenya v Ochanda, where the decree had been perfected. The employer is the legal custodian of employment records under sections 10(7) and 74 of the Employment Act and had refused to produce documents despite notice in 2004 and several court orders. The computations were mere additional material for the court to consider judiciously, and the appellant was afforded adequate opportunity to respond.
Proof of torture, arbitrary detention and unfair treatment of the servicemen
The respondents proved on a balance of probabilities that they were subjected to torture and inhuman and degrading treatment, and to arbitrary detention of up to 8 months without trial, contrary to sections 74 and 72 of the repealed Constitution
Uncontested historical facts, detailed uncontroverted sworn evidence and the appellant's own witness confirmed the arrests, detention and termination without benefits. Poor prison conditions per se are not torture, but beatings, being locked naked in dark and waterlogged cells and solitary confinement with insane prisoners are personal acts falling within the legal definition of torture. Lack of medical evidence was not fatal where the evidence was uncontroverted.
Whether the quantum of damages should be disturbed
The appellate court declined to interfere with the awards
Applying Kemfro Africa and Butt v Khan, interference requires a wrong principle or an inordinately high or low award. Comparable awards in similar Air Force cases supported the quantum, and the appellant, having failed to produce its own schedule of dues as directed, could not complain of the schedule presented by the respondents.
Legal principles established
#- The ELRC has jurisdiction to hear and determine constitutional issues as and when they arise from employment and labour relations
- Where no appeal is lodged against an interlocutory ruling, the issue is definitively settled by judicial decision and becomes res judicata, and an appellate court lacks jurisdiction to reopen it
- A court becomes functus officio only when the consequential decree or order is issued, signed and sealed; until then it retains supplemental jurisdiction, including to assess quantum of damages
- There is no limitation of time for claims founded on violation of constitutional rights, but delay must not be inordinate and must be plausibly explained
- Assessment of quantum of damages is a non-delegable judicial function, but inviting parties to file computations that the court considers judiciously is not abdication of that function
- Poor prison conditions in common with other inmates do not amount to torture, but personalised treatment such as beatings, being locked naked in dark or waterlogged cells and solitary confinement does
- Absence of medical evidence is not fatal to claims of torture where the sworn evidence of brutalities is not controverted
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Each party to bear its own costs of the appeal
- 3.The judgment of the ELRC (Nduma, J.), including the awards of salary arrears, aggravated damages of Kshs 1,000,000 each, restoration of ranks/honours, pension and interest, was upheld
- On appeal from
- Employment and Labour Relations Court
- Cause No 2212 of 2012 (formerly High Court Civil Suit No 548 of 1995)
- Jurisdiction invoked
- First appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022 (the judgment records no explicit constitutional provision for the appeal itself)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kabare Farmers Co-operative Society Ltd v Muriithi (Environment and Land Appeal E033 of 2022) [2026] KEELC 2832 (KLR)[2026] KEELC 2832 (KLR)13 May 2026
Cite this brief
#Cite this brief
Caselaw, "Attorney General v W.O.1 Samuel Chege Gitau & 283 others (Civil Appeal E093 of 2021) [2023] KECA 1386 (KLR)", Case Analysis (2023). Appeal number not stated in the judgment (arising from ELRC Cause No 2212 of 2012, formerly High Court Civil Suit No 548 of 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1386/eng@2023-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.