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ELRCPartially AllowedPetition dated 6th July 2021 (ELRC, Nyeri)· [2023] KEELRC 1994 (KLR)

Mugure v Ministry of Defence & another (Employment and Labour Relations Petition E011 of 2021) [2023] KEELRC 1994 (KLR)

Employment and Labour Relations Court
31 July 2023
OMOnesmus N Makau
9,990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former Kenya Air Force major won his case because the Defence Council fired him without giving him notice or a chance to be heard.

What this practically means

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Executive summary

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The petitioner, formerly a Major in the Kenya Air Force, was summarily tried on 18 November 2019 before his Base Commander for disobeying standing orders and conduct prejudicial to good order after hosting three civilian guests (later found murdered) at the officers' mess. He was sentenced to forfeiture of seniority. Shortly afterwards, and while he faced murder charges in the High Court, his resignation letter was rejected and the Defence Council terminated his commission without benefits, communicated to him only in May 2020. He petitioned the ELRC claiming violations of Articles 47 and 50. The court framed five issues and held, first, that summary trial under section 155 of the Kenya Defence Forces Act and termination of commission under section 251 are separate and distinct processes. Second, the summary trial satisfied the constitutional and statutory threshold: the Base Commander was a proper ASA, the 24-hour notice objection was unsubstantiated, and the petitioner pleaded guilty and waived witnesses. Third, however, the termination of commission breached Article 47 and section 4(3) of the Fair Administrative Actions Act because the Defence Council gave no prior notice, no hearing, and failed to communicate the decision on his resignation within 90 days. Reinstatement was refused as impracticable after three years; instead the court awarded terminal benefits including pension per the Defence Council Loose Minutes, Kshs 2,000,000 for the procedural violation, and compensation for a 2010 work injury, with costs and interest to the petitioner.

Key legal issues

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01

Whether summary trial and termination of commission are distinct processes

Holding

They are distinct: summary trial under section 155 ends with review under sections 158/159, while termination of commission under section 251 is a separate discretionary administrative act by the President, Defence Council or Service Commander

Reasoning

The court analysed sections 155 to 159 and 249 to 251 of the KDF Act and found the summary process begins with hearing before a commanding officer or ASA and ends with a reviewing authority, with no power to terminate commission as a summary punishment. Termination under section 251 is a discretionary administrative act requiring specified written reasons reflecting section 249(5) qualifications.

p. 11
02

Whether the summary trial met constitutional and statutory thresholds

Holding

It did. The Base Commander was the proper ASA, the charges were laid following investigation under section 150, the officer pleaded guilty, waived witnesses and the claim of inadequate 24-hour notice was unsubstantiated

Reasoning

Section 152 disqualifies a commanding officer who laid the charges or is the complainant; here the complaint was forwarded to military police for investigation, so no conflict of interest arose. The record of proceedings showed a guilty plea and a written statement permitted under Rule 19(e), and signed certificates of service of the Abstract of Evidence defeated the notice objection.

p. 13
03

Whether the termination of commission violated Article 47 and section 4(3) of the FAA Act

Holding

It did: no prior notice of the proposed termination or opportunity to be heard was given, the decision took over five months to communicate, and the decision on the resignation letter was not communicated within the statutory 90 days

Reasoning

Although the summary process was lawful, termination was a separate administrative action under section 251, expressly subject to Article 47. The Defence Council approved termination on 18-25 November 2019 but the petitioner was only informed on 13 May 2020, and the letter made no mention of any prior notice or hearing, contrary to section 4(3)(a) and (b) of the FAA Act.

p. 16
04

Whether the work injury claim was time barred

Holding

Not barred. The injury was reported and acknowledged by the Service Commander, and the respondent's failure to process the claim in time makes invocation of limitation unfair

Reasoning

The court noted the special employment relationship in the Defence Forces to which ordinary labour laws did not apply, and that the injury was reported and acknowledged. Given the respondent's own delay in processing the claim, fairness precluded a limitation defence, so compensation under the applicable KDF regulations was ordered.

p. 18

Legal principles established

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  • Summary trial under section 155 of the KDF Act and termination of commission under section 251 are separate and distinct disciplinary processes
  • Before terminating a commissioned officer's commission, the Defence Council must give prior and adequate notice of the proposed action and an opportunity to be heard, per Article 47 and section 4(3) of the FAA Act
  • Where the Defence Council approves termination of commission with benefits, that approval must be implemented as it is and cannot be unilaterally varied by the terminating letter

Court orders

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  1. 1.A declaration that the termination of the petitioner's commission did not meet the legal threshold set by Article 47 of the Constitution, section 4 of the FAA Act and section 251 of the KDF Act
  2. 2.A declaration that the termination of his commission was unfair, unlawful and unconstitutional as it was done in breach of express provisions of the law, the constitution and the rules of natural justice
  3. 3.An order that the claimant is entitled to payment of terminal benefits including pension in accordance with the applicable law and regulations
  4. 4.Award of Kshs. 2,000,000.00 for the procedural violation
  5. 5.The respondent compensates the petitioner for the work injuries suffered during his service pursuant to the applicable KDF Act and regulations
  6. 6.The petitioner is awarded costs of the suit and interests

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 47, 50, 236(b)
  • Kenya Defence Forces ActSections 6-30, 77, 121, 147, 148, 149, 150, 152, 152(1)(e), 153, 154, 155, 155(5), 158, 158(3), 159, 159(3), 180, 243(1)(3)(a)(b), 244, 245, 249, 249(5)(e), 249(7), 249(8), 251, 292
  • Fair Administrative Actions ActSections 2, 4, 4(3), 6
  • Armed Forces Rules of Procedure, 1969 (LN 249/1969)Rules 9(3)(4), 18(1), 19, 19(e), 28; Third Schedule
  • Armed Forces (Summary Induction) Regulations of 1969Regulation 5
  • Kenya Defence Forces Rules of Procedure 2017Rule 28

Cases cited (6)

  • Joseph Ndung'u Kagiri v Republic
    (2016) eKLR
  • Peter M. Kariuki v Attorney General
    (2014) eKLR
  • Judicial Service Commission v Daniel Ochanja
    (2020) eKLR
  • Benjamin Muema v Attorney General & 2 others
    (2006) eKLR
  • Fleur Investments Ltd v Commission of Domestic Taxes & another
    [2018] eKLR
  • Municipal Council of Mombasa v Republic & Umoja Consultant Ltd
    [2002] eKLR
Jurisdiction invoked
Article 23(1) and 47 of the Constitution read with the Kenya Defence Forces Act and Fair Administrative Actions Act (employment and constitutional petition jurisdiction of the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Mugure v Ministry of Defence & another (Employment and Labour Relations Petition E011 of 2021) [2023] KEELRC 1994 (KLR)", Case Analysis (2023). Petition dated 6th July 2021 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1994/eng@2023-07-31

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