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ELRCDismissed· [2022] KEELRC 225 (KLR)

Henry Odhiambo Onyango v Kenya Defence Forces & another [2022] KEELRC 225 (KLR)

Employment and Labour Relations Court
29 March 2022
3,606 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a soldier's dismissal for processing suspicious payments, confirming military summary trials can be procedurally fair.

What this practically means

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Executive summary

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The Claimant, a Warrant Officer II who served the Kenya Defence Forces for 25 years, was dismissed on 26th August 2016 over allegations that he fraudulently processed payments to fictitious beneficiaries of deceased or injured officers from the Chief of Defence Forces Central Fund Account. He sued for a declaration that the termination was unlawful, reinstatement or alternatively accrued benefits of Kshs 3,388,390, loss of future earnings of Kshs 15,805,944 and one year's salary of Kshs 1,436,904, plus pension. He contended he acted on instructions of Colonel Pay and that verification of documents was the Records department's duty. The Respondents maintained the dismissal was justified and procedurally fair, that the claimant had a duty to verify claims, and that under his terms of service he forfeited terminal benefits. The court framed two issues: fairness of the termination and entitlement to reliefs. On procedure, it found the process under sections 151 and 152 of the KDF Act was followed, the claimant was informed of his rights, elected summary trial before the commanding officer, and agreed the witness against him need not testify in person. On substance, the court found the claimant processed payments despite anomalous internal memos and left a deserving officer's GPA form unattended, and Omucheyi's confession implicating him stood unretracted, amounting to negligence or recklessness sufficient to justify dismissal. All reliefs were refused; pension and gratuity were left to the relevant Boards for want of jurisdiction. The claim was dismissed with each party bearing own costs.

Key legal issues

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01

Whether the disciplinary process was conducted in a fair manner

Holding

Yes - the procedure under sections 151 and 152 of the KDF Act was followed; the claimant was informed of his rights, opted for summary trial before the commanding officer, and agreed the witness against him need not give evidence in person.

Reasoning

The court found evidence that the respondents followed the statutory procedure for summary trials. The record of proceedings before the commanding officer showed the claimant was asked whether he agreed the witness against him need not give evidence in person and answered yes. He chose the commanding officer over court martial and was not coerced. The court was satisfied the claimant was subjected to a fair disciplinary procedure before the summary dismissal.

p. 4
02

Whether the respondent demonstrated valid reasons for terminating the claimant

Holding

Yes - fraudulent payments caused loss; the claimant processed payments despite anomalies, left an unprocessed GPA form on his desk, and was implicated by Sergeant Omucheyi's unretracted confession, giving the respondent sufficient and justifiable cause for disciplinary action.

Reasoning

The court acknowledged the claimant was at the tail end of transactions and may have lacked capacity to verify supporting documents, but found he received two IOMs in an unconventional order and processed payments without alerting superiors, and a deserving officer's GPA form was found unattended on his desk. Omucheyi's confession implicating him was not retracted before the court. Together these amounted to negligence or recklessness sufficient to justify dismissal.

p. 4
03

Whether the claimant is entitled to the reliefs sought, including pension and gratuity

Holding

No - reinstatement, compensation, terminal benefits and the declaration were refused; pension and gratuity fall outside the court's jurisdiction under the KDF Pension and Gratuities Regulations, 2017 and are left to the relevant Boards.

Reasoning

Having found the dismissal was for a valid reason and after a fair procedure, the court declined all the reliefs: reinstatement, compensation, accrued benefits and the declaration of unfairness. On pension and gratuity, the court held it lacked jurisdiction under the 2017 Regulations and remitted those issues to the relevant Boards under the KDF Regulations. The claim was dismissed on a balance of probability with each party bearing own costs.

p. 5

Legal principles established

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  • A summary trial under sections 151 and 152 of the Kenya Defence Forces Act is fair where the service member is informed of his rights, elects the forum, and agrees that the witness against him need not give evidence in person.
  • An employee who processes payments despite evident procedural anomalies and cannot explain the anomaly may be lawfully disciplined for negligence or recklessness.

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Kenya Defence Forces Actsections 121, 124(1), 151, 152(1)(c)
  • Kenya Defence Forces (Pension and Gratuities) (Officers and Service Members) Regulations2017
  • Standing Order Chapter 19Rule (c)
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Wilson Kinyua and another v Republic
    [1980] eKLR
  • Republic v Joseph Mutua Kimanzi & 2 others
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and ELRC Act; claim filed 4th October, 2016

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, "Henry Odhiambo Onyango v Kenya Defence Forces & another [2022] KEELRC 225 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/225/eng@2022-03-29

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