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ELRCAllowedIndustrial Court Petition No. 13 of 2013 (initially Petition No. 176 of 2012)· [2013] KEELRC 57 (KLR)

Major (Rtd) Ezra Imaana Kaibuta v Hon Attorney General & Four others [2013] KEELRC 57 (KLR)

Industrial Court of Kenya
29 November 2013
MNMathews N. Nduma
3,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court quashed a military officer's termination, ruling that even military discipline requires a fair hearing, and awarded him over Kshs. 8 million.

What this practically means

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Executive summary

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The Petitioner, a former Major in the Kenya Defence Forces, challenged his termination following summary disciplinary proceedings arising from photocopying pages of the Armed Forces Review Board Report No. 45 in June 2007 on the instructions of the 4th Respondent, who later denied giving those instructions. The Petitioner was tried summarily by the 5th Respondent, whom he had wanted to call as a witness, was refused his three defence witnesses and the opportunity to cross-examine, and was convicted on two counts. The 4th Respondent, the complainant, then constituted himself a reviewing authority without hearing the Petitioner and recommended termination, which the 2nd Respondent effected on 22nd February 2008. The Respondents, through the Attorney General, denied the violations, contending the Petitioner chose not to exercise his rights and that termination was administrative under Section 17 of the Armed Forces Act, informed by his record of indiscipline. The court framed three issues, holding that the 2010 Constitution could not apply retrospectively to events of 2007 and that the petition fell to be determined under Sections 74, 77 and 84 of the former constitution. It found the 4th Respondent had become accuser, prosecutor and judge in his own cause, breaching nemo judex in causa sua and audi alteram partem, and that the conduct was unreasonable, in bad faith and amounted to inhuman and degrading treatment. The court declared the termination unlawful and void ab initio, quashed it by certiorari, awarded Kshs.1,270,000/= under Section 49 of the Employment Act and Kshs.7 million general damages, and directed that the Petitioner be treated as retired with benefits computed and his rights and honour as a retired officer preserved.

Key legal issues

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01

Whether termination of a military officer's commission is purely administrative requiring no hearing

Holding

No. The termination process was conducted in breach of natural justice and the Armed Forces Act Cap 199 does not sanction such conduct; the termination was unlawful and void ab initio.

Reasoning

The court found that the 4th Respondent, who was the complainant and sole witness on one charge, constituted himself a reviewing authority without hearing the Petitioner and recommended termination. The 5th Respondent presided over summary disposal despite being a person the Petitioner wished to call as a witness, and refused the Petitioner's witnesses and right of cross-examination. The court held the 4th Respondent became accuser, prosecutor and judge in his own cause, contrary to nemo judex in causa sua and audi alteram partem.

p. 6
02

Whether the 2010 Constitution applies retrospectively to events of 2007

Holding

No. The conduct occurred in 2007, prior to promulgation of the 2010 Constitution, so the petition is determined under the former constitution, particularly Sections 74 and 77.

Reasoning

Relying on Duncan Otene Waga v Hon. Attorney General, the court held the 2010 Constitution cannot be applied retrospectively to prior acts or omissions. It therefore mapped the Petitioner's claimed rights to the former provisions: Section 74 (protection from inhuman and degrading treatment, equivalent to Article 28), Section 77 (protection of law, equivalent to Articles 27 and 50), and Section 84 (enforcement jurisdiction).

p. 5
03

Whether the Petitioner's rights under the former constitution were violated and remedies should issue

Holding

Yes. Sections 74 and 77 of the former constitution vindicated the Petitioner's rights to fair hearing and human dignity, which were grossly violated; certiorari and damages were awarded.

Reasoning

The court found the Respondents' conduct unjustifiable by any evidence or law, unreasonable and in bad faith under Wednesbury principles, amounting to inhuman and degrading treatment. Following Marete v Attorney General, it exercised remedial powers under Section 84, quashing the termination and awarding compensation under Section 49 of the Employment Act plus general damages.

p. 6

Legal principles established

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  • A breach of natural justice vitiates a decision regardless of the outcome that would have obtained otherwise
  • The Constitution is enforceable and the court is empowered to award redress for contravention of its protective provisions by the State
  • No person may be an accuser, prosecutor and judge in his own cause; a reviewing authority who was the complainant violates nemo judex in causa sua and audi alteram partem

Court orders

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  1. 1.Declaration that the termination of the Petitioner's commission was unlawful, null and void ab initio as a gross violation of his right to a fair hearing and human dignity
  2. 2.Order of certiorari bringing into the court and quashing the decision of the 2nd Respondent of 22nd February 2008 terminating the Petitioner's commission
  3. 3.Compensation for unlawful and unfair termination of Kshs.127,000/= per month for 10 months, totalling Kshs.1,270,000/=, in terms of Section 49 of the Employment Act 2007
  4. 4.General damages of Kshs.7,000,000/= for pain and suffering including loss of commission and loss of career advancement in the military
  5. 5.Direction that the 2nd and 3rd Respondents treat the Petitioner as if he had retired from military service with effect from 22nd February 2008 and compute and pay his benefits under the relevant military rules
  6. 6.Direction that the 2nd and 3rd Respondents preserve all the rights and honour of the Petitioner as a retired officer of the military

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 27, 28, 41, 47, 50(1)
  • Former Constitution of Kenya (repealed)Sections 74(1), 74(2), 77, 84
  • Armed Forces Act, Cap 199 (now repealed)Section 17
  • Employment Act 2007Section 49

Cases cited (4)

  • Duncan Otene Waga v. Hon. Attorney General
    [2012] eKLR
  • Republic vs. Chief Justice of Kenya & 6 others Ex parte Ole Keiwua
    KLR [2010]
  • Central Medical Council v. Sparkman
    (1943) 2 All ER 337
  • Associated Provincial Picture House Ltd v Wednesbury Corporation
    (1948) IKB 223
Jurisdiction invoked
Enforcement of fundamental rights under Sections 74, 77 and 84 of the former (repealed) Constitution of Kenya; Industrial Court jurisdiction over labour disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Major (Rtd) Ezra Imaana Kaibuta v Hon Attorney General & Four others [2013] KEELRC 57 (KLR)", Case Analysis (2013). Industrial Court Petition No. 13 of 2013 (initially Petition No. 176 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/57/eng@2013-11-29

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