Ps Ministry of Defence v Simon Mwaniki & 8 others
The bottom line
#Kenya's Court of Appeal threw out Kshs 500,000 awards to 26 Ministry of Defence workers who ignored chances to defend themselves in a disciplinary process.
What this practically means
#Executive summary
#Key legal issues
#Fair hearing prior to termination under Articles 41, 47 and 50
The respondents were duly notified of the reasons for interdiction and given 21 days to respond or appeal but did not; their complaint of unfair process cannot arise and there was no breach of their constitutional rights.
The interdiction letters notified the respondents that they were being interdicted for submitting fake certificates for employment or promotion and gave them 21 days to respond. The record shows no responses were filed and no appeal to the Public Service Commission was proved. Having failed to exercise the right to be heard offered to them, the respondents could not claim the process was unfair, and no damages for breach of rights could flow.
Award of constitutional damages
There was no basis for the Kshs. 500,000/= award to each respondent since no rights were breached.
The Court found the trial Judge erred in awarding constitutional damages when it had made no finding of breach that survived scrutiny. Having concluded that the respondents did not exercise their right to be heard and that the disciplinary procedure adopted by the appellant was proper, the only logical consequence was to dismiss the respondents' claim without any orders as to damages.
Applicability of the Employment Act to civilian personnel of the Ministry of Defence
The respondents, being civilians recruited by the Public Service Commission to work with the Ministry, were not subject to the Kenya Defence Forces Act; they were subject to the Employment Act.
Section 5 of the KDF Act applies to civilians only where, with authority and written consent, they accompany the Defence Forces on active service or in specified circumstances. The respondents were merely working with the appellant and did not fall within those categories. The trial court's contrary finding that they were employees of the Armed Forces and not subject to the Employment Act was accordingly wrong.
Entitlement to withheld half salaries during interdiction
The Court could not make a finding on the withheld half salaries as there was no cross-appeal by the interdicted respondents; further, the appellant did not object and it was not a ground of appeal.
The impugned judgment directed payment of withheld salaries, but the appellant's grounds of appeal did not challenge that direction, and the affected respondents filed no cross-appeal. The record of appeal also did not contain the amended petition (paragraph 14C) relied on by the trial court. Without a cross-appeal, the Court could not disturb or affirm a finding on the half salaries.
Legal principles established
#- An employee who is given notice of contemplated disciplinary action and an opportunity to respond or appeal but fails to do so cannot later claim that the resulting disciplinary process was unfair under Articles 41, 47 and 50 of the Constitution.
- Civilian personnel recruited by the Public Service Commission to work with the Ministry of Defence are not subject to the Kenya Defence Forces Act and are subject to the Employment Act.
- On a first appeal, the Court's primary role is to re-evaluate, re-assess and re-analyse the evidence before the trial court and determine whether the conclusions reached by the trial Judge should stand.
Court orders
#- 1.The appeal succeeds
- 2.The judgment of the Employment and Labour Relations Court delivered on 18th June 2018 is set aside in its entirety, including the declaration that the respondents' rights under Articles 41, 47 and 50 were infringed and the award of Kshs. 500,000/= damages to each respondent
- 3.Each party will bear its own costs of the appeal
- On appeal from
- Employment and Labour Relations Court
- Petition dated 11th December 2015 (number not stated)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court (Article 164(1)(a) jurisdiction invoked by the appeal's nature; no specific provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ps Ministry of Defence v Simon Mwaniki & 8 others", Case Analysis (2024). Court of Appeal Appeal (from ELRC petition; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/584/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.