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ELRCDismissedPetition No 4 of 2019· [2021] KEELRC 2192 (KLR)

Joseph K Chepkwony v Kenya Defence Forces & another [2021] KEELRC 2192 (KLR)

Employment and Labour Relations Court
10 February 2021
720 words in judgment
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The bottom line

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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

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Executive summary

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The Petitioner, a retired Kenya Defence Forces officer who enlisted in 1971 and took approved voluntary early retirement effective 10 October 1995, petitioned the Employment and Labour Relations Court in Kisumu seeking (i) a direction that his retirement benefits be recalculated to reflect the Salaries and Remuneration Commission salary formula effective 1 January 1996, (ii) salary for two and a half months on standby duties, (iii) declarations that the Respondent violated fair labour practices under the Employment Act, 2007 and his rights under Articles 27 and 47 of the Constitution, (iv) general damages and costs. The Respondent filed a Replying Affidavit sworn by Major Damaris Apondi Agnetta and its submissions; the Petitioner filed no submissions by the agreed deadline and a supplementary affidavit filed without leave was expunged. The court dismissed the petition. It held that the Employment Act, 2007 was not in operation in 1995 and no retrospective application was demonstrated; that by section 3(2)(a) the Act does not apply to KDF members; that no evidence established an SRC retirement benefit formula disregarded by the Respondent, the SRC not even having been established in 1995; that the claim of illegal detention in the barracks was contradicted by records showing surrender of official issues by 13 October 1995; and that failure to file submissions amounted to failure to prosecute. The court found no constitutional issues were raised and that the Constitution was invoked in vain. The petition was dismissed with costs. Judgment delivered on 10 February 2021 by Radido Stephen, Judge, via Microsoft Teams.

Key legal issues

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01

Retrospective application of the Employment Act, 2007

Holding

The Act could not be relied on for alleged 1995 violations

Reasoning

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.

p. 2
02

Applicability of the Employment Act to KDF members

Holding

The Act does not apply to members of the Kenya Defence Forces by virtue of section 3(2)(a)

Reasoning

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.

p. 2
03

Evidential burden on the SRC formula claim

Holding

The Petitioner produced no evidence of an SRC retirement benefit formula applicable to him

Reasoning

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.

p. 2
04

Failure to prosecute and whether constitutional issues were raised

Holding

Failure to file submissions amounted to failure to prosecute; the petition raised no constitutional issues

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Petition is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment Act, 2007section 3(2)(a)
  • Constitution of Kenya, 2010Article 27; Article 47
Jurisdiction invoked
Constitutional petition (Employment and Labour Relations Court jurisdiction invoked under the Constitution; specific article not stated)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.