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ELRCDismissedELRC Cause (Nairobi), filed 24th May 2016· [2020] KEELRC 1649 (KLR)

Arab Sugal Adow v Cabinet Secretary Ministry of Defence & 2 others [2020] KEELRC 1649 (KLR)

Employment and Labour Relations Court
7 February 2020
OMOnesmus N. Makau
2,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld the dismissal of a soldier who admitted soliciting money from a civilian, ruling the military process was fair and pension claims belong elsewhere.

What this practically means

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Executive summary

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The claimant, a Sergeant in the Kenya Defence Forces employed from 24th April 1984, was summarily dismissed on 27th February 2014 after disciplinary proceedings for obtaining Kshs. 100,000 from a civilian, Mr. Joseph Kagwi, purporting to assist in military recruitment. He sued on 24th May 2016 seeking declarations that his dismissal and the withholding of pension and gratuity were unfair and unlawful, loss of earnings of Kshs. 3,027,216, one month's salary in lieu of notice, compensatory damages, damages for mental disorder arising from alleged illegal detention and torture, terminal dues, interest and costs. The respondents defended the dismissal as justified and procedurally fair under sections 121, 147 and 156 of the Kenya Defence Forces Act, contending the claimant admitted the charge, and opposed the reliefs, arguing the Employment Act does not apply to KDF members and that pension, gratuity and disability claims fall outside this Court's jurisdiction. The court framed three issues: validity of the reason for dismissal, fairness of the procedure, and entitlement to reliefs. It found the claimant admitted the offence, so the reason was valid; the disciplinary process complied with sections 150, 156 and 157 of the KDF Act and Articles 47 and 50 of the Constitution despite the complainant's absence. All reliefs were refused: pension, gratuity and mental disorder damages were held to fall within the exclusive mandate of Boards under the KDF (Pension and Gratuities) Regulations, and the terminal dues claim lacked particulars. The claim was dismissed with each party bearing its own costs, delivered at Nairobi on 7th February 2020 by Onesmus N. Makau, Judge.

Key legal issues

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01

Whether the dismissal was for a valid reason

Holding

Yes - the claimant admitted obtaining Kshs. 100,000 from a civilian as charged

Reasoning

The charge was that the claimant obtained Kshs. 100,000 from Mr. Kagwi purporting he would assist in military recruitment. The claimant said it was a loan partially repaid, but the court was satisfied on the disciplinary record that he admitted the offence as charged, making the reason for dismissal valid.

p. 4
02

Whether a fair procedure was followed

Holding

Yes - the process under sections 150, 156 and 157 of the KDF Act accorded with Articles 47 and 50

Reasoning

The respondents produced a full bundle of the disciplinary record showing the claimant was served with the abstract of evidence and charge, appeared before his Officer Commanding and was heard, and was sentenced by the Commanding Officer upon his own admission. Deficiencies noted (complainant absent, undated proceedings) did not render the process unfair.

p. 4
03

Whether the reliefs sought should be granted

Holding

No - claim dismissed; pension, gratuity and mental disorder damages fall outside this Court's jurisdiction

Reasoning

Having found valid reason and fair procedure, the declarations and compensatory reliefs were refused. Pension, gratuity and mental disorder damages are reserved to Boards under the KDF (Pension and Gratuities) Regulations, and the terminal dues claim lacked particulars.

p. 4

Legal principles established

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  • A summary dismissal from the Kenya Defence Forces on an admitted charge, conducted under the disciplinary procedure of the KDF Act, is valid and fair
  • A disciplinary hearing in which the accused is served with the abstract of evidence and charge, appears before the Officer Commanding and the Commanding Officer, and admits the charge, satisfies Articles 47 and 50 of the Constitution even if the complainant is not cross-examined
  • This Court has no jurisdiction to award pension, gratuity or disability damages for dismissed servicemen where the KDF (Pension and Gratuities) Regulations vest that mandate in Boards

Court orders

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  1. 1.Claim dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Kenya Defence Forces ActSections 121, 147, 150, 156 (including 156(b)(ii)/(b)(iii) and 156(3)), 157, 158(1), 244(2), 253(5)(a), 3, 4
  • Kenya Defence Forces Rules of ProcedurePart V
  • Kenya Defence Forces (Pension and Gratuities) (Officers and Servicemen/Service Members) RegulationsRegulation 6 (2017)
  • Employment Actreferred to regarding non-application to KDF members
  • Constitution of Kenya, 2010Articles 47, 50, 159(2)(d)
  • Employment and Labour Relations Court Procedure Rules, 2016Rule 6

Cases cited (12)

  • Sarah Wanyaga Muchiri Vs Henry Kathii & Another
    (2014) eKLR
  • Engen Petroleum Limited Vs Commissioner for Conciliation Mediation and Arbitration and Others
    (2007) ZALAC 5
  • Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (K)
    (2017) eKLR
  • Walter Anuro Vs Teachers Service Commission
    (2013) eKLR
  • Henry Kamau Ngare Vs Teachers Service Commission & Another
    (2016) eKLR
  • Ezekiel Nyangoya Okemwa Vs Kenya Marine & Fisheries Research
    (2016) eKLR
  • Republic Vs Chief of General Staff & Another
    (2017) eKLR
  • Peter Masai Mailanga Vs Republic
    (2019) eKLR
  • Gift Kambu Marandu Vs Kenya Defence Forces Council & Another
    (2017) eKLR
  • Miriam Wanja Muchiri Vs Emmah Wangechi Macharia & Another
    (2016) eKLR
  • Kitur & Another Vs Standard Chartered Bank & 2 Others
    (2002) eKLR
  • Non-Governmental Organizations Co-ordination Board Vs EG & 5 Others
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes; court noted limits under the Kenya Defence Forces (Pension and Gratuities) (Officers and Service Members) Regulations, 2017

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, "Arab Sugal Adow v Cabinet Secretary Ministry of Defence & 2 others [2020] KEELRC 1649 (KLR)", Case Analysis (2020). ELRC Cause (Nairobi), filed 24th May 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1649/eng@2020-02-07

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