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ELRCDismissedCause No. 330 of 2014· [2016] KEELRC 755 (KLR)

Vincent Karani Asimuge v Ministry of Defence & another [2016] KEELRC 755 (KLR)

Employment and Labour Relations Court of Kenya
14 July 2016
MOMaureen Onyango
1,371 words in judgment
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The bottom line

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A former soldier's 24-year-late lawsuit over his army dismissal failed because Kenyan law sets strict deadlines for suing the Government.

What this practically means

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Executive summary

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The claimant, recruited into the Kenya Armed Forces in February 1979 as a private soldier in 5th Kenya Rifles, sued the Ministry of Defence and the Attorney General by plaint dated 22nd September 2004 seeking full salary and emoluments for termination of his services as an army officer. He alleged that on returning from annual leave in April 1980 he was told his service number was erroneous, that he had not been properly recruited, and that he was sent home on a promise of investigation that was never communicated. The defence, as amended in 2013, asserted he was dismissed in May 1980 following his conviction for robbery in Busia Criminal Case 332 of 1980 (appeal in HCCRA 555 of 1980 dismissed), under Section 176(c) of the repealed Armed Forces Act permitting summary discharge for conviction of a civil offence. The claimant called three witnesses confirming his service; the defence produced the conviction communication and discharge letter. The court found the suit was filed 24 years after dismissal, well beyond the limitation periods in Section 3(1) of the Public Authorities Limitation Act, with no explanation and no leave to file out of time, making it a gross abuse of process. It further found the plaintiff produced no documents of his alleged leave and did not rebut the conviction evidence, and declined to interfere with military service powers. The suit was dismissed with no orders for costs.

Key legal issues

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01

Limitation and inordinate delay

Holding

The claim, filed 24 years after dismissal, was barred and an abuse of process

Reasoning

Although limitation was not pleaded in the defence, it was raised in submissions. Section 3(1) of the Public Authorities Limitation Act caps tort claims against Government at 12 months and contract claims at 3 years. The plaintiff neither explained the 24-year delay nor sought leave to file out of time, so the suit failed on this ground alone.

p. 2
02

Validity of the dismissal

Holding

The plaintiff was lawfully dismissed under Section 176(c) of the repealed Armed Forces Act following his conviction for robbery

Reasoning

The defence produced court proceedings and a letter communicating the plaintiff's conviction for robbery in Busia CR 332 of 1980, after which the service commandant exercised his power under Section 176(c) to dismiss him. The plaintiff did not deny or rebut this evidence, and the court declined to interfere with military service powers.

p. 3

Legal principles established

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  • Proceedings founded on tort against the Government must be brought within twelve months, and founded on contract within three years, of accrual under Section 3(1) of the Public Authorities Limitation Act
  • A suit brought after inordinate and unexplained delay is a gross abuse of the court process and should fail on that ground alone
  • A service commander may summarily discharge a serviceman convicted of a civil offence under Section 176(c) of the repealed Armed Forces Act, and the court will not interfere with the powers of the military service

Court orders

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  1. 1.The suit is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Public Authorities Limitation ActSection 3(1)
  • Armed Forces Act (repealed)Section 176, including 176(c)

Cases cited (1)

  • PETER NGARI KAGUME & 7 Others v ATTORNEY GENERAL
    [2009] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (transfer of suit initially filed at Busia to Nairobi, then before the ELRC)

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, "Vincent Karani Asimuge v Ministry of Defence & another [2016] KEELRC 755 (KLR)", Case Analysis (2016). Cause No. 330 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/755/eng@2016-07-14

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