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ELRCPartially AllowedPetition Cause No. 51 of 2012 (formerly Misc. 586 of 2006, High Court)· [2016] KEELRC 1366 (KLR)

Manzi Luu Musyona & Attorney General on behalf of Minister for Defence & Chairman, Defence Council [2016] KEELRC 1366 (KLR)

Employment and Labour Relations Court of Kenya
4 April 2016
HWHellen S. Wasilwa
6,899 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a military officer's commission was unlawfully terminated for going to court, awarding him terminal benefits and 12 months' salary.

What this practically means

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Executive summary

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Major Manzi Luu Musyona, a commissioned officer in the Kenya Armed Forces since 1977, petitioned under the former Constitution challenging the termination of his Presidential Commission by the Defence Council on 14th March 2001 and the denial of his terminal benefits. He alleged that the Army Commander's 'clean up' letter of 19.2.2001, the composition of the Defence Council, the termination while Court Martial proceedings were stayed by Court of Appeal orders in Civil Appeal No. 84 of 2000, the denial of terminal benefits, and his close arrest for 85 days violated sections 9, 74, 77(1) and 82(2) of the repealed Constitution and the Armed Forces Act. The Respondent contended that the Defence Council acted lawfully under the Armed Forces Act, that the termination was an administrative decision amenable only to judicial review, that pension denial was discretionary, and that reinstatement was not an automatic remedy. The court framed five issues and found that the Court Martial was properly convened and constituted, and that the Petitioner failed to demonstrate a breach of his right to a fair hearing under section 77(1). However, the court held that terminating his commission for pursuing judicial review and appeal - described as interference with Court Martial proceedings - and while stay orders were in force infringed his right of access to court and his constitutional rights, and that denial of terminal benefits constituted cruel, degrading and inhuman treatment under section 74. The petition was partially allowed: declarations of unlawful termination and inhuman treatment issued, terminal benefits were awarded, together with 12 months' salary as compensation for unlawful termination. Reinstatement was refused given the long lapse of time. The Respondent was ordered to meet the costs of the Petition. Judgment was read in open court on 4th April 2016 by Hon. Lady Justice Hellen S. Wasilwa.

Key legal issues

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01

Whether the Court Martial and Defence Council were properly constituted

Holding

The Court Martial was properly convened and constituted under sections 85, 86 and 87 of the repealed Armed Forces Act; the Petitioner did not demonstrate illegality.

Reasoning

The Court examined Part VIII of the repealed Armed Forces Act on constitution of a Court Martial, noted the convening order was made by the Army Commander in tandem with section 85(1), and found the Petitioner produced no evidence of the proceedings to show any member was absent. In the absence of proof, the alleged misconstitution failed.

p. 12
02

Whether termination while the Court Martial was stayed (sub judice) violated the Petitioner's rights

Holding

Yes. Terminating the commission for pursuing judicial review and appeal, and while Court of Appeal stay orders were in force, infringed the Petitioner's right of access to court and constitutional rights.

Reasoning

The Respondent treated the Petitioner's resort to the High Court and Court of Appeal as 'misbehavior and disruption' of the Court Martial. The court held this infringed the right of access to court under section 9 of the repealed Constitution, that the Respondent erred by disobeying the stay orders, and that subsequent denial of terminal dues was a further infringement.

p. 13
03

Whether the failure to afford a fair hearing under section 77(1) was proved

Holding

No. The Petitioner did not demonstrate how the trial was conducted so as to render it unfair.

Reasoning

The court found that the Petitioner did not show how the Court Martial infringed his section 77(1) right to a fair hearing within a reasonable time by an independent and impartial court, and therefore no finding of infringement under that provision could be made.

p. 13
04

What remedies follow from the unlawful termination

Holding

Declarations of unlawfulness and cruel, degrading and inhuman treatment; payment of terminal benefits; 12 months' salary as compensation; reinstatement refused due to lapse of time; costs to the Petitioner.

Reasoning

Having found for the Petitioner on the sub judice issue and the violation of rights, the court granted declarations, terminal benefits, and 12 months' salary as compensation for unlawful termination. Reinstatement was declined as not tenable given the long time lapse since the 2001 termination, and the Respondent was ordered to pay costs.

p. 14

Legal principles established

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  • Pursuing judicial review and appeal against Court Martial proceedings is a lawful exercise of the right of access to court and does not constitute misbehaviour justifying termination of an officer's commission.
  • Terminating an officer's commission while stay orders were in force and denying terminal benefits amounts to cruel, degrading and inhuman treatment under section 74 of the repealed Constitution.

Court orders

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  1. 1.A declaration that the termination of the Petitioner's Presidential Commission was unlawful.
  2. 2.A declaration that denial of the Petitioner's terminal benefits constituted cruel, degrading and inhuman treatment under Section 74 of the repealed Constitution.
  3. 3.An order that the Petitioner be forthwith paid his terminal benefits as an employee who had retired from service in the normal cause of duty.
  4. 4.An order that the Petitioner be paid 12 months' salary as compensation for unlawful termination based on what would have been his salary at retirement.
  5. 5.An order that the Respondent meet the costs of the Petition.

Authorities

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Legislation

  • Constitution of Kenya (repealed)Sections 9, 74, 77(1), 82(2)
  • Armed Forces Act (Cap 199)Sections 5, 17(2), 52(1)(f), 62, 81(4), 85, 86, 87, 142(1), 171(2), 225(1), 227
  • Armed Forces (Pensions and Gratuities) (Officers and Servicemen) Regulations 1980General
  • Evidence ActGeneral (confessions)

Cases cited (3)

  • Peter M. Kariuki Vs Attorney General
    (2014) eKLR
  • Benjamin Muema Vs Attorney General
    (2006) eKLR
  • Kenya Airways Limited Vs Aviation & Allied Workers Union Kenya & 3 Others
    (2014) eKLR
Jurisdiction invoked
Petition brought under Rule 11 and 12 of the Constitution (enforcement of fundamental rights), sections 74, 77, 82 of the repealed Constitution and the Armed Forces Act (Cap 199)

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, "Manzi Luu Musyona & Attorney General on behalf of Minister for Defence & Chairman, Defence Council [2016] KEELRC 1366 (KLR)", Case Analysis (2016). Petition Cause No. 51 of 2012 (formerly Misc. 586 of 2006, High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1366/eng@2016-04-04

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