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ELRCDismissedCause No 296 of 2018· [2023] KEELRC 2379 (KLR)

Owaga v Kenya Defence Forces (Cause 296 of 2018) [2023] KEELRC 2379 (KLR)

Employment and Labour Relations Court
28 September 2023
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former soldier who never appealed his military conviction lost his Kshs. 3.5 million benefits claim because he skipped the pension scheme's own complaint process.

What this practically means

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Executive summary

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The claimant, a former Senior Sergeant WOII who served in the Kenya Defence Forces for 35 years, sued for terminal benefits comprising Kshs. 3,186,420 in pension and monthly gratuity of Kshs. 39,830.25, contending that having been issued a Certificate of Discharge on 2 February 2015 after clean service, he was unfairly recalled, arrested by military police, and tried before his Commanding Officer on allegations of misappropriating about Kshs. 1.37 million while chief paymaster at 7 Kenya Rifles, leading to dishonourable discharge and withdrawal of his benefits. He argued the summary trial violated due process and Article 47 fair administrative action, citing Joseph Kipkemboi Tanui and David Wanyonyi. The respondent maintained the claimant was convicted of conduct prejudicial to good order and discipline contrary to Section 121 of the KDF Act, had not appealed the conviction, and that dismissed personnel forfeit benefits, citing Felister Mugweru and Gift Kambu Marandu. The court, M. Mbarũ J, held that the claimant's conviction stood unchallenged; without an appeal against the dishonoured discharge, the disability claim lacked foundation, and disciplined-service benefits are governed by the KDF Act's own regime. On pension, applying the exhaustion doctrine from Albert Chaurembo Mumba, the court held the claimant should first have pursued statutory scheme mechanisms. The claim was dismissed with costs to the respondent and the file returned to the ELRC Nairobi Registry.

Key legal issues

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01

Entitlement to disability allowance after dishonoured discharge

Holding

The claim for disability allowance fails because the claimant did not appeal the dishonoured discharge following his conviction.

Reasoning

The claimant was issued a Certificate of Discharge and placed on 10% disability benefit. After his arrest and trial before the Commanding Officer, a guilty verdict resulted in dishonour and loss of benefit. The court held that without an appeal against the dishonoured discharge, a claim for disability allowance has no foundation and submissions about no dismissal letter cannot reinstate the benefit.

p. 3
02

Exhaustion of statutory pension dispute mechanisms

Holding

Pension claims must be addressed under the governing scheme's rules and statutory mechanisms before invoking judicial process.

Reasoning

Relying on the Supreme Court's position in the Kenya Ports Authority Pensions Scheme case, the court held that where a statute prescribes mechanisms for accessing pension dues, those must be exhausted first. The claimant ought to have demonstrated that he applied the statutory mechanism and had no access to justice therefrom before coming to court.

p. 4
03

Fairness of trial after discharge

Holding

The claimant's conviction by the Commanding Officer stood, and the delayed charges did not avail him in this claim.

Reasoning

The claimant was charged under the KDF Act, found guilty and convicted, with no appeal against the conviction. He did not challenge the findings on the monies lost, only the fact of prior clearance. The court held the disciplined service regime applied, distinguishing ordinary employment protections.

p. 3

Legal principles established

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  • Where there is an alternative dispute resolution mechanism established in law, the court must exercise restraint and defer to that mechanism (exhaustion doctrine)
  • Disciplined service personnel's disability and pension benefits are governed by the applicable statute's rules and regulations, not ordinary workplace injury regimes

Court orders

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  1. 1.The claim is dismissed with costs to the respondent
  2. 2.The file shall be returned to the ELRC Nairobi Registry

Authorities

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Legislation

  • Kenya Defence Forces ActSection 121
  • Kenya Defence Forces ActSections 159(2) and 251(2)
  • Constitution of Kenya, 2010Article 47
  • Work Injury Benefits Act2007

Cases cited (5)

  • Joseph Kipkemboi Tanui v Chief of Kenya Defence Forces & 2 others
    [2019] eKLR
  • David Wanyonyi v AG & 2 others
    [2014] eKLR
  • Felister Waithiegeni Mugweru v National Police Service Commission & 2 others
    [2018] eKLR
  • Gift Kambu Marandu v KDF Count and AG
    [2017] eKLR
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (accepted by the respondent's submission to jurisdiction); claim brought under KDF Act and Article 47 of the Constitution

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, "Owaga v Kenya Defence Forces (Cause 296 of 2018) [2023] KEELRC 2379 (KLR)", Case Analysis (2023). Cause No 296 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2379/eng@2023-09-28

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