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ELRCPartially AllowedPetition filed 7th August 2020 (number not stated in judgment)· [2022] KEELRC 1561 (KLR)

Mugambi v Chief of Kenya Defence Forces & 2 others (Petition E019 of 2020) [2022] KEELRC 1561 (KLR)

Employment and Labour Relations Court
2 June 2022
MNMATHEWS N. NDUMA
4,838 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Employment Court reinstated a dismissed Kenya Army soldier, ruling his dismissal was based on a conviction with no evidence at all.

What this practically means

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Executive summary

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The petitioner, a serviceman employed by the Kenya Army on 18th March 1989, challenged his dismissal from service effective 19th/27th May 2020 following summary disciplinary proceedings on two charges: being drunk and disorderly during working hours and using insubordinate language towards a superior officer. He alleged violation of Articles 28, 47 and 50 of the Constitution, failure to be served with the abstract of evidence, denial of the option of Court Martial, double punishment for one offence, and unlawful withholding of pension, gratuity and injury compensation. The respondents maintained the trial was lawful, that he was served and elected summary trial, admitted guilt, and that pension could lawfully be withheld on dismissal; they also challenged the Court's jurisdiction over pension and disability claims. The Court found that the documents produced did not constitute the complaint, investigation report or abstract of evidence required under Sections 150 and 156 of the Kenya Defence Forces Act; the petitioner denied receipt and the respondents failed to discharge the shifted evidential burden. On the second charge, tried on a plea of not guilty, no witnesses were called, no statement of facts was recorded, and the guilty verdict and the dismissal based on it were a nullity and void ab initio. However, the conviction on the first charge, on a plea of guilty with a recorded statement of facts, could not be faulted. The Court struck out the injury compensation claim for want of jurisdiction. Judgment was entered for the petitioner: the dismissal was set aside, he was reinstated to the rank of corporal without loss of remuneration and benefits, and the respondents were ordered to pay the costs of the petition.

Key legal issues

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01

Service of the abstract of evidence and fair hearing

Holding

No valid abstract of evidence was prepared and served on the petitioner; respondents failed to discharge the shifted evidential burden, violating Articles 47 and 50

Reasoning

The petitioner denied receipt of the abstract of evidence and his signature on the exhibit. The respondents produced only a certificate attached to an abstract, not the abstract itself, and did not prove service by expert evidence. Without the abstract the petitioner could not prepare his defence, so the summary trial violated his right to fair administrative action and fair hearing.

p. 9
02

Second charge of insubordination tried on a plea of not guilty

Holding

The guilty verdict and the dismissal sentence on that charge were a nullity, no evidence having been adduced

Reasoning

The petitioner pleaded not guilty to the charge of using insubordinate language. The Commanding Officer called no prosecution witnesses, recorded no statement of facts, asked no questions, and entered a verdict of guilty based only on prior record. There was absolutely no evidence supporting the charge, rendering the verdict void and the dismissal based on it void ab initio.

p. 10
03

First charge - drunk and disorderly, plea of guilty

Holding

The reduction in rank from Sergeant to Corporal could not be faulted despite the procedural omission regarding the abstract of evidence

Reasoning

Although the abstract of evidence was not availed, the petitioner pleaded guilty, was questioned, and a statement of facts was recorded supporting the offence. The Court found the verdict and sentence on this charge sound, so reinstatement was ordered only to the rank of corporal.

p. 11
04

Double punishment for two offences

Holding

The petitioner was not punished twice for one offence; two charges attracted two punishments, but the second verdict was void

Reasoning

The court accepted that the petitioner faced two distinct charges under Sections 121 and 82(1)(b) of the Kenya Defence Forces Act, warranting separate punishments under Section 156(4). However, the conviction on the second charge having been a nullity, the dismissal founded on it had to be set aside.

p. 11
05

Jurisdiction over disability pension and injury compensation

Holding

The Court lacks jurisdiction; such claims fall to the relevant Boards under the Kenya Defence Forces Regulations

Reasoning

Relying on the authorities cited by the respondents, the Court held that pension and gratuity amounts and disability pension assessment are matters for the Defence Council, the Public Service Commission and the Pension Assessment Board under the Act and Regulations, and struck out that aspect of the petition.

p. 11

Legal principles established

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  • A verdict of guilty entered on a plea of not guilty without any evidence or witnesses called is a nullity and void ab initio, and a sentence founded on it is equally void
  • Where a party denies receipt of a document relied on for service, the evidential burden shifts to the party alleging service to produce the document or prove the signature
  • Summary disciplinary proceedings under the Kenya Defence Forces Act must be guided by Articles 47 and 50 of the Constitution

Court orders

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  1. 1.The decision by the Kenya Army to dismiss the petitioner from service is set aside having been declared unlawful, and void ab initio
  2. 2.The petitioner is reinstated to service in the rank of corporal without loss of remuneration and/or benefits from the date of dismissal till payment in full
  3. 3.The Court lacks jurisdiction to deal with the issue of compensation in respect of injuries sustained by the petitioner in the cause of duty and strikes that aspect of the petition accordingly
  4. 4.The respondents to pay the costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 28, 47(1), 47(2), 50(1), 159(2)(d), 48
  • Kenya Defence Forces Act No. 25 of 2012Sections 82(1)(b), 121, 147(1), 150, 151(1), 156(1), 156(2)(a)(i), 156(2)(a)(ii), 156(3), 156(4), 157(1), 158(1), 159(2), 244(1), 244(2), 244(3), 245(8),(10),(11), 183
  • Fair Administrative Action ActSection 4(2)
  • Armed Forces (Officers and servicemen) (Pensions and Gratuities) RegulationsRegulation 6
  • Armed Forces Rules of procedureRule 9, Rule 9(4)
  • Kenya Defence Forces (Pensions and Gratuities) (Officers and Service Members) Regulations, 2017Sections 4, 20, 40; Regulations 17, 18
  • Kenya Defence Forces (General) Regulations, 2017Regulation 10
  • Evidence Act, Cap. 80 Laws of KenyaSection 60(1)(c)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure Act (chapter 21 of the Laws of Kenya)Section 18

Cases cited (3)

  • Gift Kambu Murandu v Kenya Defence Forces Council and Another
    [2017] eKLR
  • Arab Sagal Adow v Cabinet Secretary, Ministry of Defence and 2 Others
    [2020] eKLR
  • Anarita Karimi v Republic
    [1979] eKLR
Jurisdiction invoked
Constitutional petition for violation of Articles 28, 47 and 50 of the Constitution read with the Fair Administrative Action Act and the Kenya Defence Forces Act, No. 25 of 2012

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, "Mugambi v Chief of Kenya Defence Forces & 2 others (Petition E019 of 2020) [2022] KEELRC 1561 (KLR)", Case Analysis (2022). Petition filed 7th August 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1561/eng@2022-06-02

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