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ELRCAllowedCause No 891 of 2012· [2014] KEELRC 1217 (KLR)

Sylvanus Otieno Odiaga v Attorney General [2014] KEELRC 1217 (KLR)

Industrial Court of Kenya
8 July 2014
LNLinnet Ndolo
2,588 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a commissioned officer in the Kenya Army who rose to the rank of Lieutenant Colonel and served as Commanding Officer at the Armed Forces Ordinance Depot, sued the Attorney General for unlawful termination of his commission. In March 2007 he was tried summarily by the Appropriate Superior Authority on eight counts of disobedience to standing orders arising from procurement decisions; he was acquitted on four counts and fined or penalised on the others, yet his commission was nonetheless recommended for termination and notified in May 2007, and he was retired on pension in September 2007. The Court framed three issues: the legality of the retirement, the legality of the criminal proceedings, and entitlement to reliefs. On the first, the Court found the Claimant's extension of service to December 2009 had been approved, placing on the employer a specific burden to produce documents in its possession and drawing an adverse inference from the Respondent's failure to produce the approval page; the September 2007 retirement was therefore unprocedural and unlawful. On the second, the Court held that the termination of commission after the original sentences had been served amounted to double jeopardy; that the Abstract of Evidence was prepared by officers without command authority over the Claimant; that there was no written waiver of oral testimony nor an opportunity to elect court martial; and that under Section 171(3) of the Armed Forces Act only the President could terminate the commission of a Lieutenant Colonel. The Court found for the Claimant, set aside the criminal proceedings and all consequential processes, and awarded Kshs. 5,000,000 as damages for unlawful termination, with costs to the Claimant and interest at court rates.

Key legal issues

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01

Whether the Claimant's retirement in September 2007 was lawful

Holding

The retirement was unprocedural and unlawful because the Claimant's extension of service to 14th December 2009 was approved, the Respondent having failed to produce evidence of rejection and having concealed a crucial page of the extension document.

Reasoning

The Claimant produced a Grant of Extension of Service document showing his application, recommended by his Commanding Officer and Formation Commander, but the page with Service Commander recommendation and Defence Council approval was missing. The Respondent's records officer produced only a blank document. The Court held the employer had a specific burden to produce documents in its possession and concluded the extension was approved, making the September 2007 retirement unlawful.

p. 4
02

Whether the summary criminal proceedings against the Claimant were procedural and lawful

Holding

The proceedings were unprocedural and unlawful: the termination of commission amounted to double jeopardy after sentences were served; the Abstract of Evidence was prepared by officers without legal mandate; and the Claimant was denied the option of court martial.

Reasoning

Awards issued on 5th March 2007 were confirmed and served, yet termination of commission was nonetheless recommended and effected, amounting to double punishment. The Abstract of Evidence was prepared by Col. Muluvi on instructions of Brigadier Khisa, neither of whom was the Claimant's commanding officer, contrary to Rule 9 of the Armed Forces Rules of Procedure. There was also no written evidence of the Claimant's agreement to omit oral testimony and no opportunity to elect trial by court martial under Section 81(5).

p. 4
03

Whether the Claimant, being a Lieutenant Colonel, could have his commission terminated by the Defence Council rather than the President

Holding

Under Section 171(3) of the Armed Forces Act the commission of an officer of the Claimant's rank could only be terminated by the President; the Defence Council could only sanction termination up to the rank of Major, so the termination was unlawful.

Reasoning

The Claimant relied on Section 171(3) of the Armed Forces Act, Clause 2(f)(3) of Chapter 4 of the Armed Forces Standing Orders and Clause 88 of Part V of the Terms and Conditions of Service, which reserve termination of commission of senior officers to the President. Section 171(2) limits Defence Council sanction to officers up to the rank of Major. Further, Section 5(5) required communication under the hand of the Secretary to the Council, which was not done.

p. 4

Legal principles established

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  • In employment matters, the employer bears a specific burden to produce documents in its possession, and deliberate concealment of evidence may lead the court to draw adverse inferences against the employer.
  • The elaborate safeguards for handling disciplinary cases against armed forces officers under the Armed Forces Act must be respected by superior officers.

Court orders

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  1. 1.The criminal proceedings conducted against the Claimant and all consequential processes and orders are set aside
  2. 2.The Claimant is awarded the sum of Kshs. 5,000,000 being damages for unlawful termination of commission
  3. 3.The Respondent shall pay the costs of this case
  4. 4.The award amount shall attract interest at court rates from the date of the award until payment in full

Authorities

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Legislation

  • Armed Forces ActSection 30(1)
  • Armed Forces ActSection 171(3)
  • Armed Forces ActSection 171(2)
  • Armed Forces ActSection 5(5)
  • Armed Forces ActSection 79
  • Armed Forces ActSection 81(5)
  • Armed Forces ActSection 2(1)
  • Armed Forces ActCap. 199
  • Armed Forces Rules of ProcedureRule 9
  • Armed Forces Rules of ProcedureRule 19(b)
  • Armed Forces (Summary Jurisdiction) RegulationsRegulation 11
  • Armed Forces (General) RegulationsRegulation 3
  • Armed Forces (Summary Jurisdiction) RegulationsRegulation 3
  • Employment ActSection 3(2)
  • Kenya Defence Forces Actrepealed and replaced the Armed Forces Act
  • Armed Forces Standing OrdersChapter 4, Clause 2(f)(3)
  • Terms and Conditions of Service for the Kenya Armed ForcesPart V, Clause 88

Cases cited (1)

  • Lt. Col. Benjamin Muema Vs Attorney General & 2 Others
    [2006] eKLR
Jurisdiction invoked
Industrial Court of Kenya jurisdiction under the Labour Institutions Act over employment and labour disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sylvanus Otieno Odiaga v Attorney General [2014] KEELRC 1217 (KLR)", Case Analysis (2014). Cause No 891 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1217/eng@2014-07-08

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