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ELRCPartially AllowedNot stated in judgment (ELC cause filed 11.4.2013)· [2019] KEELRC 285 (KLR)

JA (Suing Through His Brother And Next Friend Asa v Attorney General [2019] KEELRC 285 (KLR)

Employment and Labour Relations Court
22 November 2019
OMOnesmus N. Makau
2,243 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A former Kenya Defence Forces serviceman won only his medication costs because his disability reassessment and duty-related injury claims lacked proof and court jurisdiction.

What this practically means

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Executive summary

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The claimant, a former serviceman recruited into the Kenya Armed Forces in 2004, was taken hostage from Isiolo in February 2007 and diagnosed with Bipolar I Mood Disorder. A Medical Board assessed his permanent disability at 20% and recommended discharge on medical grounds; he left service in 2009 with a 20% disability allowance granted by the Armed Forces Pension Assessment Board. He sued for special damages of KShs. 9,375 for unreimbursed medication, general damages for permanent disability, and an 80% permanent disability allowance backdated to discharge. The respondent denied liability, maintained that due process was followed, contended the illness was genetic and not caused by duty, and argued the claimant should have appealed to the Defence Forces Pensions Appeal Tribunal. The court framed two issues: its jurisdiction to reassess the disability degree and entitlement to the reliefs. It held that under the repealed Armed Forces Act and the 1980 Pension Regulations, jurisdiction over reassessment of the degree of disablement lies with the Pensions Appeal Tribunal, not the court; consequently, the second Medical Board report (assessing disability at 70%), ordered by Ndolo J in 2016, was of no consequence. The claim for general damages failed because the claimant did not prove the disorder was suffered in the line of duty, distinguishing Ochanda. The special damages claim of KShs. 9,375 succeeded based on receipts and the respondent's admission that treatment is reimbursable. Judgment was entered for the claimant for KShs. 9,375 plus costs and interest at court rates from filing.

Key legal issues

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01

Whether the court has jurisdiction to reassess the claimant's degree of permanent disability and disability allowance

Holding

The court lacks original jurisdiction; appeals against the Board's decision on degree of disablement lie with the Pensions Appeal Tribunal under regulation 33(4).

Reasoning

The claimant was discharged under the repealed Armed Forces Act and the 1980 Pension Regulations. Regulation 17(1)(c) provides the Board is not bound by recommendations of any other Board, and regulation 33(4) vests jurisdiction over appeals on entitlement and degree of disablement in the Pensions Appeal Tribunal. Accordingly, the second Medical Board report ordered by Ndolo J on 15.4.2016 was of no consequence.

p. 3
02

Whether the Claimant is entitled to general damages for permanent disability

Holding

Claim for general damages fails; the claimant did not prove the Bipolar I Disorder was suffered in the line of duty.

Reasoning

The claimant was taken hostage and tortured according to his plaint, but the respondent contended, and the court found, that no evidence such as police or medical reports proved torture or that the illness was occasioned by duty. The Pension Assessment Board had also found no evidence the illness was occasioned by service. The Ochanda case was distinguished as there the plaintiff proved injuries suffered in the course of duty.

p. 3
03

Whether the Claimant is entitled to special damages of KShs. 9,375 for medical expenses

Holding

The claim succeeds, based on receipts produced and the respondent's witness's admission that treatment is reimbursable upon production of receipts.

Reasoning

The claimant produced receipts for prescribed medication totalling KShs. 9,375, which were not disputed. Major Gilbert Gichuhi admitted in his witness statement that treatment is reimbursable upon production of relevant treatment receipts. The court therefore entered judgment for that sum with costs and interest.

p. 3

Legal principles established

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  • This court lacks original jurisdiction to determine suits for reassessment of the degree of disability for purposes of assessing disability allowance; that jurisdiction lies with the Pensions Appeal Tribunal.
  • Under regulation 17 of the repealed Armed Forces (Pension and Gratuities) Regulations, the Pension Assessment Board is not bound by the advice or recommendation of any other Board.

Court orders

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  1. 1.Judgment entered in favour of the claimant in the sum of Kshs. 9,375 (special damages).
  2. 2.Costs of the suit awarded to the claimant.
  3. 3.Interest on the awarded sum at court rate from the date of filing the suit.

Authorities

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Legislation

  • Armed Forces Act (repealed)Section 176(d)
  • Kenya Defence Forces ActSection 245
  • Armed Forces (Pension and Gratuities) (Officers and Servicemen) Regulations, 1980 (repealed)Regulations 17(1)(c), 18(2), 18(3), 33(4)

Cases cited (5)

  • Isaiah Oduor Ochanda vs. The Attorney General
    [2011] eKLR
  • Republic vs. Attorney General ex parte Isaiah Oduor Ochanda
    [2012] eKLR
  • Nasibo Dabaso Jillo vs. Commander Kenya Army & Another
    [2015] eKLR
  • The Speaker of the National Assembly vs. Karume
    [2008] 1 KLR (EP) 425
  • Nyamogo & Nyamogo vs. Kogo
    [2001] EA 174
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the applicable employment law; court found it lacked original jurisdiction over reassessment of degree of disability, which lies with the Pensions Appeal Tribunal under regulation 33 of the repealed Armed Forces (Pension and Gratuities) Regulations

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "JA (Suing Through His Brother And Next Friend Asa v Attorney General [2019] KEELRC 285 (KLR)", Case Analysis (2019). Not stated in judgment (ELC cause filed 11.4.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/285/eng@2019-11-22

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