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ELRCDismissedConstitutional Petition dated 20th September, 2021 (Notice of Motion dated 20th December, 2021)· [2021] KEELRC 98 (KLR)

Moses Etyang v Chief of Kenya Defence Forces & another [2021] KEELRC 98 (KLR)

Employment and Labour Relations Court
20 December 2021
JKJ. W. Keli
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a dismissed soldier through interim orders, confirming reinstatement can only be granted after a full hearing.

What this practically means

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Executive summary

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The Petitioner, a former Kenya Defence Forces serviceman, filed a constitutional petition on 20th September, 2021 alleging that the Respondent did not follow due process in dismissing him, and moved the court by Notice of Motion seeking conservatory orders: rescission of the termination, payment of monthly salary of Kshs. 20,328.00, alternative full remuneration and benefits with interest, future medical support of Kshs. 40,000 monthly, and damages for violation of fundamental rights, all pending hearing of the petition. He argued that his discharge on 6th January, 2016 for 'service no longer required' overlooked that he suffered head injuries and schizophrenia following a road accident during the AMISOM mission in Somalia in 2014, for which the Medical Board later approved compensation of Kshs. 350,000. The Respondent, through the Replying Affidavit of Major Dickson Nzalia, maintained the discharge was lawful under Section 255(1)(g) of the Kenya Defence Forces Act following a trial before the Commanding Officer and approval by the Service Commander, and faulted the Applicant for inordinate delay. The court, applying the Progress Welfare Association of Malindi and CREAWS authorities, held that its interlocutory jurisdiction was confined to assessing whether a prima facie case existed, that conservatory orders preserve rather than grant final relief, and that the orders sought amounted to reinstatement, a final remedy available only under Section 49 of the Employment Act after a full hearing. Since the applicant had been discharged and there was no active employment relationship, there was nothing to conserve. The application was dismissed for lack of merit with costs in the cause. The petition remains to be heard on its merits.

Key legal issues

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01

Availability of conservatory orders where employment has already been terminated

Holding

The application was dismissed; the orders sought amounted to reinstatement, a final relief unavailable interlocutorily.

Reasoning

The court applied the settled test for conservatory orders and found nothing to conserve since the applicant had been discharged and there was no active employment relationship. The orders sought - rescission of termination, salary, benefits, medical support and damages pending hearing - were in substance reinstatement, which can only be granted under Section 49 of the Employment Act after a full hearing of the petition on merit.

p. 3
02

Purpose of conservatory orders in constitutional petitions

Holding

Their purpose is to prevent violation of rights and preserve the subject matter pending hearing, not to grant final relief.

Reasoning

Relying on the CREAWS decision, the court defined the purpose of conservatory orders as preventive and preservative. Since what was sought would restore the petitioner to service rather than preserve a status quo, the reliefs fell outside the scope of interlocutory conservatory relief and the application failed.

p. 3

Legal principles established

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  • At the interlocutory stage the court's jurisdiction is limited to examining the material before it to determine whether a prima facie case warrants conservatory orders
  • The purpose of conservatory orders is to prevent violation of rights and preserve the subject matter pending hearing
  • Conservatory orders that amount to reinstatement of a dismissed employee are final in nature and unavailable at the interlocutory stage

Court orders

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  1. 1.The Notice of Motion dated 20th September, 2021 (dated 20th December, 2021 in the judgment) seeking conservatory orders is dismissed for lack of merit with costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 23
  • Kenya Defence Forces ActSection 255(1)(g)
  • Employment ActSection 49

Cases cited (2)

  • Progress Welfare Association Of Malindi & 3 Others -Vs- County Government Of Kilifi & 4 others
    (2020) eKLR
  • Center for Rights Education and Awareness (Creaw) & Another -vs- Speaker of the National Assembly & 2 Others
    (2017) eKLR
Jurisdiction invoked
Article 23 of the Constitution (interlocutory jurisdiction over conservatory orders in a constitutional petition)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Moses Etyang v Chief of Kenya Defence Forces & another [2021] KEELRC 98 (KLR)", Case Analysis (2021). Constitutional Petition dated 20th September, 2021 (Notice of Motion dated 20th December, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/98/eng@2021-12-20

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