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ELRCPartially AllowedCause No E092 of 2021· [2023] KEELRC 2098 (KLR)

Nyambok v Kenya Defence Forces & another (Cause E092 of 2021) [2023] KEELRC 2098 (KLR)

Employment and Labour Relations Court
6 September 2023
6,861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan military officer whose court martial conviction was quashed won over Kshs. 7.2 million after the Defence Forces unlawfully treated him as dismissed.

What this practically means

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Executive summary

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The Claimant, a commissioned officer (Major) who joined the Kenya Defence Forces in 1991, was court-martialled in 2015-2018, convicted of conduct to the prejudice of good order and service discipline, and sentenced to one year's imprisonment, which under section 180para 6 of the Kenya Defence Forces Act carried deemed dismissal. The High Court (Luka Kimaru J) quashed the conviction in its entirety, acquitted him and set aside the sentence on 10th June 2020. The 1st Respondent nonetheless declined to reinstate, redeploy or retire him with benefits, insisting the High Court made no reinstatement order. Judge James Rika held that the quashing nullified the dismissal sentence automatically, deeming the Claimant a continuing employee; no separate reinstatement order was necessary, and res judicata did not apply because the High Court proceedings were a criminal appeal. The Court found violations of Articles 41, 47 and 50 of the Constitution: no Defence Council minutes, no termination of commission under section 251 KDFA, no letter of termination, and inconsistent dates of separation. The Claimant was declared entitled to pension and gratuity as on normal retirement, half salary withheld for 36 months (Kshs. 3,109,536), medical risk allowance (Kshs. 146,000) and compensatory damages of Kshs. 4 million, totaling Kshs. 7,255,536, with costs to the Claimant. Claims for full accrued salary and compensation under the Employment Act were refused as unjust enrichment, the Act not applying to the Defence Forces.

Key legal issues

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01

Effect of quashing of Court Martial conviction and dismissal sentence on the officer's employment

Holding

The quashed dismissal became null and void; the Claimant remained a continuing employee and no fresh order of reinstatement was required.

Reasoning

Section 180para 6 KDFA deems an officer sentenced to imprisonment dismissed. The High Court quashed the conviction and set aside the entire sentence, including the dismissal. Following Radido J in Gregory Gitile Mberia, dismissal being part of the sentence, it stood set aside automatically under the principle of retrospective quashing. The res judicata objection fails because the High Court proceedings were a criminal appeal confined to conviction and sentence.

p. 9
02

Whether dismissal/termination was fair, lawful and constitutional

Holding

It was unfair, unlawful and unconstitutional, violating Articles 41, 47 and 50.

Reasoning

The 1st Respondent refused to defer to the High Court's judgment and continued treating the Claimant as dismissed. No minutes of the Defence Council ratifying or terminating the commission were exhibited; the Respondents gave inconsistent dates of termination; no letter of termination was issued, which per Nisha Nileshbhai Bhavsar means no termination took effect. The process failed the Article 47 fair administrative action threshold.

p. 11
03

Entitlement to pension and gratuity

Holding

The Claimant is entitled to pension and gratuity as on normal retirement; withholding required PSC concurrence which was not shown.

Reasoning

Section 244 KDFA permits withholding only where an officer was dismissed, and requires PSC concurrence. The Claimant was exonerated and no longer an officer dismissed under that section. Terminal benefits are property under Article 260 read with Article 40. Details were unspecified, so a declaration sufficed.

p. 12
04

Recovery of half salary withheld during Court Martial proceedings

Holding

Recoverable because the Claimant was exonerated; awarded at Kshs. 86,376 monthly for 36 months, totaling Kshs. 3,109,536.

Reasoning

Relying on Hellen Amunga, half salary is recoverable upon exoneration. The High Court acquitted the Claimant of all charges, so the 1st Respondent had no reason to continue withholding arrears from April 2015 to May 2018.

p. 12
05

Whether full salaries accrued while the Claimant was not in active service

Holding

Not payable; remedies must be proportionate and not facilitate unjust enrichment.

Reasoning

Following Elizabeth Wakanyi Kibe v. Telkom Kenya, employment remedies are proportionate to economic injury. The Claimant rendered no military service after conviction; paying full salary until retirement at 60 would unjustly enrich him, and redeployment near mandatory retirement age was not in the public interest. Constitutional compensatory damages of Kshs. 4 million were granted instead.

p. 13

Legal principles established

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  • When a Court Martial conviction and sentence (including the deemed dismissal sentence under section 180para 6 KDFA) are quashed on appeal, the dismissal falls with them and the officer is deemed a continuing employee; no separate reinstatement order is needed.
  • Pension is property protected under Article 40 of the Constitution and cannot be arbitrarily withheld after exoneration without Public Service Commission concurrence as required by section 244 KDFA.
  • Termination of a commissioned officer's commission requires the procedure under section 251 KDFA in compliance with Article 47, and dismissal by a Court Martial does not automatically terminate the commission.

Court orders

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  1. 1.Declaration that the 1st Respondent violated the Claimant's constitutional rights under Articles 41, 47 and 50, and that termination of service/dismissal was unfair, unlawful and unconstitutional
  2. 2.Declaration that the Claimant is entitled to pension and gratuity as he would have been paid on normal retirement
  3. 3.Payment of half monthly salary withheld for 36 months at Kshs. 3,109,536
  4. 4.Payment of medical risk allowance at Kshs. 146,000
  5. 5.Compensatory damages at Kshs. 4 million (total award Kshs. 7,255,536)
  6. 6.Costs to the Claimant payable by the 1st Respondent

Authorities

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Legislation

  • Kenya Defence Forces Actsections 2, 42, 65, 121, 161, 170, 180[6], 181, 186, 189, 212[1][a], 244[2], 247, 251[1][b], 251[2], 251[6]
  • Constitution of KenyaArticles 23[3][a] and [e], 24[5], 40, 41, 47, 50, 159[2], 260
  • Fair Administrative Action Actsection 4
  • Employment ActPart VI, sections 3, 49[1][c]
  • Employment and Labour Relations (Procedure) RulesRule 7[3]

Cases cited (10)

  • David Wanyonyi v. Attorney-General & 2 Others
    [2014]
  • Cassian Ngotho Mwachanya v. Commanding Officer Kenya Navy & Another
    [2015] e-KLR
  • Gregory Gitile Mberia v. Attorney-General & 4 Others
    [2019] e-KLR
  • Teachers Service Commission v. Timothy Onyango Olale
    [2022] e-KLR
  • Hellen Amunga v. Kenyatta University
    [2018] e-KLR
  • Abraham Gumba v. Kenya Medical Supplies Authority
    [2014] e-KLR
  • Gift Kambu Marandu v. Kenya Defence Forces Council & Another
    [2017] e-KLR
  • Elizabeth Wakanyi Kibe v. Telkom Kenya Limited
    [2014] e-KLR
  • Nisha Nileshbhai Bhavsar v. Kensalt Limited
    [2022] e-KLR
  • Laban Agak Nyambok v. Republic, Criminal Appeal Number 3 of 2018
    [2020] e-KLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the E&LRC; Rule 7[3] of the Employment and Labour Relations (Procedure) Rules allowing enforcement of constitutional rights through a Statement of Claim; remedies under Article 23[3][a] and [e] of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Nyambok v Kenya Defence Forces & another (Cause E092 of 2021) [2023] KEELRC 2098 (KLR)", Case Analysis (2023). Cause No E092 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2098/eng@2023-09-06

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