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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 409 (KLR)

Joseph Kipkemboi Tanui v Chief of Kenya Defence Forces & 2 others [2019] KEELRC 409 (KLR)

Employment and Labour Relations Court
8 November 2019
OMOnesmus N. Makau
6,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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A former Kenya Defence Forces commissioned officer, fined 14 days' pay by his Base Commander in February 2018 over fuel losses at Laikipia Base, had his commission terminated later that month following review by the KAF Commander and approval by the Defence Council. He petitioned the Employment and Labour Relations Court seeking declarations of constitutional violation, rescission of the termination, reinstatement, or alternatively Kshs.12,769,254 in remuneration and benefits, plus damages. The respondents opposed on grounds of res judicata, non-exhaustion of internal remedies, inadmissibility of uncertified military documents, and denial of any violation. The court held the suit was not res judicata since the summary trial was not a determination by a court of competent jurisdiction. The exhaustion objection failed because the respondents frustrated the automatic review mechanism by failing to communicate the review outcome in writing as required by section 159(2) of the Kenya Defence Forces Act; a decision maker who obstructs internal review is estopped from pleading exhaustion. The documentary evidence was admitted on grounds of established authenticity. On the merits, the court found the attribution of fuel losses to the petitioner reasonable, as he did not prove he was abroad throughout the loss period. However, the verbal communication of the review outcome and the absence of written reasons for termination violated Article 47. The court declared the termination unlawful and unconstitutional, awarded Kshs.3,000,000 in damages (distinguishing Lukale Sande on facts and quantum), refused reinstatement and the alternative remuneration claim, and awarded the petitioner costs with interest at court rate, subject to statutory deductions.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata; the summary trial before the Base Commander was not a determination by a court of competent jurisdiction.

Reasoning

The respondents claimed the dispute was determined in the summary trial of 16th February 2018. The court held the argument unsubstantiated: no court of competent jurisdiction had determined the dispute, and internal disciplinary proceedings do not bar an officer from seeking constitutional relief under Article 22(1).

p. 5
02

Exhaustion of internal remedies

Holding

The exhaustion objection fails because the respondents frustrated the internal review mechanism by failing to inform the petitioner in writing of the outcome of the automatic review.

Reasoning

Although section 9(2) of the Fair Administrative Action Act ordinarily bars review before internal mechanisms are exhausted, the petitioner's right to an effective internal appeal was curtailed by the respondents' default under sections 159(2) and 251(2) of the KDF Act. A decision maker who obstructs internal review is estopped from pleading exhaustion.

p. 5
03

Admissibility of documents

Holding

The documents are admissible because their authenticity is established, having been served on the petitioner during the summary proceedings.

Reasoning

Though unmarked and uncertified as required by section 68(2)(c) of the Evidence Act, the court was satisfied of their authenticity because they were served on the petitioner in compliance with the statutory summary proceedings procedure, and the respondents confirmed their authenticity by objecting on confidentiality grounds.

p. 6
04

Whether the petitioner's rights to fair administrative action were violated

Holding

Yes - the KAF Commander communicated the review outcome verbally instead of in writing, and the Defence Council failed to give written reasons for termination, violating Article 47.

Reasoning

The procedure up to the summary hearing and automatic review was largely fair, but section 159(2) requires written communication of the review outcome and section 251(2) requires written reasons for termination. Both were breached; the petitioner never received written notice of termination, crippling his ability to mount effective review or appeal.

p. 8
05

Attribution of fuel losses

Holding

The Base Commander did not act unreasonably in attributing the fuel losses to the petitioner, who failed to prove he was abroad throughout the loss period.

Reasoning

The burden lay on the petitioner to prove he was absent during the loss period; his passport lacked a clear return stamp. The fuel was under a department he headed, and losses occurred through fraudulent transactions involving a group of officers, so the attribution of guilt was not unreasonable.

p. 6

Legal principles established

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  • Internal disciplinary proceedings within the disciplined forces do not extinguish an officer's right to institute constitutional proceedings.
  • A decision maker who frustrates the internal review or appeal process is estopped from pleading the defence of exhaustion.
  • Termination of a presidential commission requires written reasons to the affected officer under section 251(2) of the KDF Act, subject to Article 47 of the Constitution.

Court orders

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  1. 1.A declaration that the termination of the petitioner's commission was in contravention of his right to fair administrative action under Article 47 of the Constitution and was therefore unlawful and unconstitutional.
  2. 2.Award of Kshs.3,000,000 as damages for the violation of the petitioner's constitutional right.
  3. 3.Costs of the suit awarded to the petitioner.
  4. 4.Interest at court rate from the date of judgment, the decreed sum being subject to statutory deductions.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 258(1), 28, 47, 48, 50, 159(2)(c)
  • Kenya Defence Forces ActSections 65, 147, 155, 156(4), 156(8), 159, 251, 27(c)
  • Fair Administrative Action ActSections 2, 4, 7(1), 7(2), 9(2)
  • Employment and Labour Relations Court ActSection 12(3)
  • Evidence ActSections 60(1)(c), 68(2)(c)
  • Official Secrets ActSection 3(2)

Cases cited (10)

  • Lieutenant Colonel Lukale Moses Sande v Kenya Defence Forces & Another
    [2018]eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015]eKLR
  • Okiya Omtata Okoiti v Commissioner General Kenya Revenue Authority & 2 Others
    [2018]eKLR
  • Leland I. Salano v Intercontinental Hotel
    [2013]eKLR
  • Gift Kambu Marandu v Kenya Defence Force Council & another
    [2017]eKLR
  • Peter A. Imwatok (MCA) v Nairobi City County & 9 Others
    [2018]eKLR
  • Catherine Muthomi Mwamra v Hamida Yoroi Shek Nuri & 5 Others
    [2018]eKLR
  • R v National Environmental Management Authority
    [2011]eKLR
  • Dickson Ngigi Ngugi v Morrison Njenga Waweru
    [1979]eKLR
  • David M’iti Makwachi v Kenya Defence Forces
    [2019]eKLR
Jurisdiction invoked
Article 22(1) and Article 258(1) of the Constitution; section 12(3) of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Joseph Kipkemboi Tanui v Chief of Kenya Defence Forces & 2 others [2019] KEELRC 409 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/409/eng@2019-11-08

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