Samuel Chege Gitau & 283 Others v Attorney General [2016] KEELRC 1837 (KLR)
The bottom line
#284 former Kenya Air Force personnel unlawfully dismissed after the 1982 coup attempt won damages, salary arrears, pension and restored ranks from the Kenyan state.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimants were lawfully removed from the Kenya Air Force
- 2.Whether the Claimants have established on a balance of probability, the alleged violation of their human rights and fundamental freedoms by the Respondent
- 3.What remedies, if at all, are the Claimants entitled to
Key legal issues
#Whether the Claimants were lawfully removed from the Kenya Air Force
The removal was unlawful and a nullity; the 82 Air Force that effected the discharges was an illegal entity, and the Claimants were discharged without lawful process and without payment of dues.
Relying on Akiwumi J's ruling in Misc. Application No. 293 of 1993 (Captain Geoffrey Kusoga v AG) that the 82 Air Force was not founded on the Armed Forces law and was illegal, the court held that terminations by its Commander were null and void. The Respondent produced records for only 23 of 284 Claimants and adduced no evidence to refute the testimony of torture, summary trials and unlawful discharge.
Whether violations of fundamental rights under the repealed Constitution were established
Yes - torture, inhuman and degrading treatment, wrongful arrest and imprisonment, and denial of fair hearing in violation of Sections 72(1)(3), 74(1) and 77(1)(2) of the 1969 Constitution were proved on a balance of probabilities.
The Claimants gave vivid, detailed and consistent testimony of beatings, water-logged cells, denial of food and water, incommunicado detention for about 8 months, and coerced confessions. RW1 himself admitted the treatment was unlawful and against the law, and the Respondent filed no affidavit or rebuttal evidence. The court also invoked Article 5 of the UDHR.
Whether the suit is defeated by limitation under the Public Authorities Limitation Act
No. The suit was founded on constitutional violations, for which there is no limitation; the High Court (Ojwang J) had already determined limitation in the Claimants' favour and the Respondent never appealed that finding.
Ojwang J in 2005 held the claims were public law claims concerning lack of jurisdiction and violation of statutory safeguards, so the Cap 59 limitation periods did not apply. The court declined to revisit the issue, and relied on a line of authorities (Dominic Aroy Amolo, Joan Akinyi Kabasellah, Lenaola J in General Juma Gichohi) that no limitation applies to constitutional petitions, noting it would be discriminatory to bar these Claimants where similar 1982 coup cases were heard on the merits.
What remedies flow from the findings
Reinstatement refused as impracticable; the Claimants received salary arrears to retirement date, aggravated damages of Kshs. 1,000,000 each, restoration of ranks, honours and decorations, pension from date of judgment, interest and costs.
The court assessed damages judicially guided by Peter M. Kariuki (CA), Ezra Laibuta (Industrial Court) and the principles that awards should be reasonable, realistic and comparable, considering ranks, length of service, dates of discharge (Schedule A), the torture endured and the stigma and inability to obtain alternative employment.
Legal principles established
#- A termination of employment carried out by an entity not established by law (the 82 Air Force) is a nullity; the Claimants being employees of the Kenya Air Force, their termination by the 82 Air Force was void.
- There is no limitation period applicable to constitutional claims alleging violation of fundamental rights.
- Unchallenged evidence of torture and degrading treatment at the hands of state organs proves the violation on a balance of probabilities.
Court orders
#- 1.Declaration that the Claimants suffered in the hands of an illegal authority called 82 Air Force which had no authority to retire, dismiss or terminate their services as they had contracted their services with the Kenya Air Force
- 2.Declaration that the Claimants suffered wrongful torture, arrest, unfair trial, imprisonment and discharge from service without payment of arrear salary, terminal benefits and pension
- 3.General damages to each Claimant comprising salary arrears based on current salary payable to servicemen and officers in their respective ranks at discharge, from date of respective discharge to date of respective retirement or date of judgment, whichever is earlier
- 4.Aggravated damages of Kenya Shillings One Million each (Kshs. 1,000,000) for wrongful imprisonment, torture, inhuman and degrading treatment and violation of right to fair hearing
- 5.The Claimants' ranks, honours and decorations be restored from the date of judgment since their discharge was unlawful
- 6.The Claimants be paid pension from the date of the judgment
- 7.Interest at court rates on the awards from date of judgment till payment in full
- 8.Costs of the suit be paid by the Respondent
- 9.Respondent to file computation of the award within 60 days, failing which the Claimants to file their computation within 30 days upon expiry of the 60 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010 (transfer to the Industrial Court by Odunga J)
Relief refused
#Reinstatement / reabsorption back to duty in the Kenya Air Force
Given the lapse of time since 1982 and the ages of the Claimants, most being beyond retirement ages, reinstatement was not available
Claim for aggravated damages at Kshs. 60,000,000 per Claimant as sought in submissions
Court awarded only Kshs. 1,000,000 each, disregarding the extravagant figures advanced as not based on comparable cases; each award assessed on the facts
Costs
Costs of the suit to be paid by the Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end the final orders to be made are the following; a. A declaration that the Claimants suffered in the hands of an illegal authority called 82 Air Force which had no authority to retire, dismiss or terminate their services as they the Claimants had contracted their services with the Kenya Air Force authority
The Claimants are awarded aggravated damages for wrongful imprisonment, torture, inhuman and degrading treatment and violation of their right to fair hearing in the sum of Kenya shillings One Million each (Kshs.1,000,000)
Costs of the suit be paid by the Respondent.
It is the court's finding that the pain and suffering endured by the Claimants at the hands of the Respondent is gross beyond measure.
Courts have consistently held that there is no limitation with respect to constitutional petitions alleging violation of fundamental rights
The state today in a reconfigured Kenya cannot shut its eyes from the failings of the past neither can it claim innocence for the excesses of past regimes. It must pay the price for its historical faults
Issues in the judgment
#Contradiction on the disbandment date of the Kenya Air Force: paragraph 7 records 'on or around 25.08.1982 the Kenya Armed Forces reinstated the Kenya Air force' while paragraph 166 states 'on 12th August, 1982, Kenya Air Force was disbanded and replaced by an entity known as 82 Air Force'.
Inconsistent citation of the Armed Forces Act: the plaint and pleadings repeatedly cite 'Armed Forces Act Cap 199' but the final orders refer to 'the Kenya Armed Forces Act, Cap. 99 of Laws of Kenya'.
The judgment records 'on 30th August 2012 when Justice G. Odunga transferred it to the Employment & Labour Relations Court' while opening paragraph 2 dates the transfer as 30 August 2012 consistently, but paragraph 144 states the matter was part-heard before Nambuye J at transfer - internal consistency is fine; however the Respondent's Response is dated '27th November 200' (incomplete year) in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Chege Gitau & 283 Others v Attorney General [2016] KEELRC 1837 (KLR)", Case Analysis (2016). Further Re-Amended Plaint dated 24th June 2005 (formerly High Court Civil Suit, transferred to ELRC by Odunga J on 30th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1837/eng@2016-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.