Felix Barnabus Shikutwa v Ministry of State for Defence & 4 others [2016] KEELRC 228 (KLR)
The bottom line
#A Kenyan court upheld a military captain's dismissal for misconduct but ordered the Defence Forces to pay his gratuity and Kshs.345,000 in owed dues.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of termination of commission
Termination was lawful; the claimant was cited for misconduct in the Sudan mission following a board of inquiry
Evidence showed a board of inquiry chaired by RW1 unearthed malpractices by the claimant during the UN mission in Southern Sudan, including purchase of substandard equipment and unauthorised personal emoluments. Upon return, the claimant was decommissioned by the President on recommendation of the Defence Council and given a good testimonial to return to his diocese. The court found the decommissioning proper and lawful.
Entitlement to return to the Diocese of Kakamega
The claimant, having been seconded, is entitled to return to serve as a priest unless otherwise directed by the Head of the Catholic church; his dispute with the Bishop is outside the court's jurisdiction
The claimant was seconded by the Diocese of Kakamega to the Armed Forces, so upon lawful decommissioning he reverts to the diocese. The court noted an apparent dispute between the claimant and his Bishop preventing his return, but held that dispute was beyond its jurisdiction and had not been placed before the court.
Terminal benefits: gratuity and special damages
Gratuity is due (non-pensionable service) but subject to clearance and lawful set-off; special damages of Kshs.345,000 proved on a balance of probability as unchallenged
The claimant served five years and 186 days and thus was entitled to gratuity rather than pension, with debts set off. The court found the respondents at fault for blocking his clearance and failing to render accounts. The respondents offered no defence to the house allowance, leave and rent deduction claims, which the court found proved.
Legal principles established
#- A specialist officer (priest) seconded to the Armed Forces whose commission is terminated for misconduct is lawfully decommissioned and is to be returned to his seconding diocese
- An officer who has served less than ten years is not pensionable but is entitled to gratuity, subject to clearance and set-off of lawful debts
- An employer must allow a departing officer to clear himself and must render accounts of set-offs against terminal dues; failure to do so constitutes fault
Court orders
#- 1.Declared that the claimant's commission was lawfully terminated by the respondents
- 2.Declared that the claimant is entitled to return to the Diocese of Kakamega to serve as a priest, unless otherwise directed by the Head of the Catholic church
- 3.Respondent to pay special damages of Kshs.345,000 with interest at court rates from date of filing suit until payment in full
- 4.Respondents bound to give the claimant access to make full clearance to allow him access gratuity due and owing, such access within thirty (30) days of judgment
- 5.Respondents to facilitate payment of gratuity due less lawful deductions within thirty (30) days and render accounts to court within sixty (60) days from date of judgment
- 6.Respondents to pay the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over a claim for wrongful termination of commission from the Armed Forces
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Attorney General & 2 others v Miyogo (Civil Appeal 57 of 2019) [2025] KECA 1836 (KLR)[2025] KECA 1836 (KLR)7 Nov 2025
- Lieutenant Colonel Lukale Moses Sande v Kenya Defence Forces & another [2018] KEELRC 509 (KLR)[2018] KEELRC 509 (KLR)30 Nov 2018
Cite this brief
#Cite this brief
Caselaw, "Felix Barnabus Shikutwa v Ministry of State for Defence & 4 others [2016] KEELRC 228 (KLR)", Case Analysis (2016). Cause No 671 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/228/eng@2016-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.