Joseph K Chepkwony v Kenya Defence Forces & another [2021] KEELRC 2192 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed a retired soldier's pension and pay claims because he filed no evidence and the Employment Act doesn't cover KDF members.
What this practically means
#Executive summary
#Key legal issues
#Retrospective application of the Employment Act, 2007
The Act could not be relied on for alleged 1995 violations
The Petitioner resigned in 1995, before the Act came into force, and did not demonstrate that the Act had retrospective application. The court therefore rejected the claim that the Respondent violated fair labour practices under the Act for conduct predating its commencement.
Applicability of the Employment Act to KDF members
The Act does not apply to members of the Kenya Defence Forces by virtue of section 3(2)(a)
Section 3(2)(a) of the Employment Act, 2007 expressly excludes members of the Kenya Defence Forces from the Act's ambit. The Petitioner, having been a serving member at all material times, could not invoke the Act's protections against the Respondent.
Evidential burden on the SRC formula claim
The Petitioner produced no evidence of an SRC retirement benefit formula applicable to him
The Petitioner sought recalculation of pension based on an SRC formula effective 1 January 1996, but filed no evidence that such a formula existed or affected his pension. Further, the SRC had not been established in 1995, making the alleged promise to hold his clearance untenable.
Failure to prosecute and whether constitutional issues were raised
Failure to file submissions amounted to failure to prosecute; the petition raised no constitutional issues
The Petitioner did not file submissions by the agreed timeline, and his supplementary affidavit was expunged as filed without leave. The court deemed this failure to prosecute and held that no genuine constitutional issue was raised, so the constitutional invocation was in vain.
Legal principles established
#- The Employment Act, 2007 applies prospectively and cannot found claims for violations alleged to have occurred before its commencement absent demonstrated retrospective application
- Section 3(2)(a) of the Employment Act, 2007 excludes members of the Kenya Defence Forces from the Act's application
- A constitutional petition raising no genuine constitutional issues is an abuse of the constitutional forum
Court orders
#- 1.The Petition is dismissed with costs to the Respondent
- Jurisdiction invoked
- Constitutional petition (Employment and Labour Relations Court jurisdiction invoked under the Constitution; specific article not stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph K Chepkwony v Kenya Defence Forces & another [2021] KEELRC 2192 (KLR)", Case Analysis (2021). Petition No 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2192/eng@2021-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.