Lieutenant Colonel Lukale Moses Sande v Kenya Defence Forces & another [2018] KEELRC 509 (KLR)

Section 251 of the KDF Act requires the President to terminate a commission of an officer above the rank of major and to accord and specify reasons in writing to the affected officer. RW2 admitted the President's letter was required and that he did not know of any. Although KDF records are classified, the court declined to presume compliance; the absence of the written termination rendered the termination null and contrary to section 251.

RW2 admitted there was no evidence that the claimant was given a hearing. Although section 3(2) of the Employment Act excludes the Defence Forces, the Bill of Rights guarantees of fair labour practices, fair administrative action, fair hearing and protection from dismissal without due process still bound the respondents and were violated.

No evidence proved the claimant's colleagues had their courses designed or approved by commanders; Regulation 109 did not provide grounds for denying subsistence allowance. Treating officers under the same scholarship differently was discriminatory and unjustified, so the claim for 1/4 rate per diem during the UK LL.M studies was allowed in full.

The claimant sought salary for the remainder of his career to age 56. The court distinguished Pravin Bowry, where the claimant served under a fixed-term contract providing for payment of salary for the remainder of the term. The claimant held a commission, not a fixed-term contract, so the claim failed on public policy and law. Compensatory constitutional damages of Kshs. 20,000,000 were awarded instead, considering length of service, rank and reasonable expectation of promotion.