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ELRCPartially AllowedCause No 6 of 2020· [2024] KEELRC 634 (KLR)

Mulekano v Attorney General (Cause 6 of 2020) [2024] KEELRC 634 (KLR)

Employment and Labour Relations Court
14 March 2024
JKJ. W. Keli
11,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court ruled a KDF sergeant's dismissal was unfair because he never got a proper hearing, awarding him Kshs 5 million plus his 29-year pension.

What this practically means

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Executive summary

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The claimant, a sergeant in the Kenya Defence Forces with 29 years of service, was charged under the KDF Act with conducting himself to the prejudice of good order and discipline for allegedly participating in the torture of a civilian, Isse Abdi, at Sangailu Defence Camp on 30th June 2019. After a summary trial on 18th July 2019 before the Officer Commanding and the Commanding Officer, he was dismissed from service and denied pension and gratuity. He challenged the dismissal as unlawful, unfair and in breach of Articles 25, 27, 41, 47, 50 and 236 of the Constitution, seeking reinstatement or terminal benefits, general and aggravated damages. The respondent maintained the summary trial was lawful and procedural, argued that Article 41 rights are limited for KDF personnel under Article 24(5)(d), that the Employment Act does not apply, and questioned the court's jurisdiction over pension matters. The court found substantial non-compliance with the Third Schedule Rule 19 procedures: the claimant asked that witnesses testify in person before the Officer Commanding, who nevertheless recorded the case as heard without availing them, and the record before the Commanding Officer was altered to indicate he did not wish to call witnesses; he was also denied the chance to mitigate. The court held the dismissal unlawful and unfair, declared the retroactive denial of pension earned over 29 years a violation of the right to dignity following Maurice Otieno Oduor, awarded Kshs 5,000,000 general damages, refused aggravated damages as double compensation, and awarded costs to the claimant. A 30-day stay was granted on application.

Key legal issues

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01

Whether the claimant's dismissal from service was fair

Holding

The dismissal was unlawful and unfair as the claimant was denied a fair hearing

Reasoning

The claimant requested that witnesses listed in the charge sheet give evidence in person, but the Officer Commanding recorded 'CASE HEARD' without availing them and remanded the case to the Commanding Officer for award only. The record before the Commanding Officer was altered to indicate the claimant did not wish to call witnesses, which the court found a deliberate, unsuccessful attempt to correct the earlier failure. The claimant was also denied opportunity to mitigate. Justice was sacrificed for expediency to meet the command deadline.

p. 16
02

Whether the claimant is entitled to pensions and gratuity

Holding

The claimant is entitled to his pension dues accumulated over 29 years; the denial was a violation of his right to dignity and discriminatory

Reasoning

Regulation 6(2) and section 244(2) of the KDF Act permit withholding of benefits, but section 244(3) requires the concurrence of the Public Service Commission, and the Respondent did not demonstrate compliance before issuing the discharge instructions denying pension. Following Maurice Otieno Oduor v Attorney General, retroactive denial of pension earned over 29 years of unblemished service violates the right to dignity under Article 28 and does not meet the Article 24 limitation threshold.

p. 19
03

Whether the claimant was entitled to general damages

Holding

General damages of Kshs 5,000,000 awarded for unlawful and unfair termination and gross violation of the right to fair hearing

Reasoning

The court considered the 29-year period of service, the distinguished career abruptly ended through an unfair process, failure to call the witnesses the claimant requested, absence of any opportunity for mitigation, and non-issue of a termination letter stating reasons. Guided by L.T. Benjamin Muema and Lieutenant Colonel Lukale Moses Sande, and distinguishing Joseph Kipkemboi Tanui where Kshs 3 million was awarded for lesser violations, the court found the violations gross and awarded Kshs 5,000,000.

p. 22
04

Whether the claimant was entitled to aggravated damages

Holding

Aggravated damages refused as it would amount to double compensation

Reasoning

The claimant sought Kshs 5 million aggravated damages based on the conduct of the Commanding Officer Rotich, relying on Obongo v Kisumu Municipal Council and Rookes v Barnard on exemplary damages. The respondent did not submit on the point. The court held that since the claimant had already been compensated for the unlawful and unfair dismissal, awarding aggravated damages for the same action would amount to double compensation and dismissed that prayer.

p. 22

Legal principles established

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  • A statutorily protected position of employment must be terminated in adherence to the terms of the governing statute
  • The Kenya Defence Forces are bound by the Constitution and must uphold the Bill of Rights in their laws, regulations, procedures and practices
  • Retroactive denial of pension accumulated over years of service violates the right to dignity and fails the Article 24 limitation threshold

Court orders

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  1. 1.Declaration that the dismissal of the Claimant from service by the Respondent was unlawful and unfair
  2. 2.Award of Kshs 5,000,000 for the unlawful dismissal and violation of the right to fair trial, payable with interest at court rates if not paid within 30 days
  3. 3.Respondent directed to initiate and complete relevant processes to allow payment of pension to the Claimant in terms of the KDF pension provisions
  4. 4.Respondent to pay the Claimant costs of the claim
  5. 5.Stay of execution granted for 30 days; Respondent to be availed typed and certified proceedings, judgment and decree on normal request to registry

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10(2), 23, 24, 25, 27, 28, 41, 47, 50, 162(2), 165(5), 232(1), 236, 238(2)
  • Kenya Defence Forces Act, 2012Sections 3, 4(a), 21, 121, 150, 151-158, 152(2), 156, 156(2), 158, 180, 244, 244(2), 244(3), 251(2), 253, 255, 254, 256
  • Employment ActSection 3(2)
  • Employment and Labour Relations Court ActSection 12, 12(3)
  • Kenya Defence Forces Act (Pension and Gratuities) (Officers and Service Men) RegulationsRegulations 4 and 6(2)
  • Third Schedule to the Kenya Defence Forces ActRule 19

Cases cited (13)

  • John Wainana Kagwe v Hussein Dairy Ltd
    (2013) eKLR
  • Dari Limited and others v East African Development Bank and 2 others
    (2020) eKLR
  • Metropolitan Properties Co. (FGC) Ltd v Lannon
    (1969) 1 QB 577 AT 599
  • Republic v Chief of General staff & another
    (2017) eKLR
  • Arab Sugal Adow v Cabinet Secretary Ministry of Defence & 2 others
    (2020) eKLR
  • Attorney General & 2 others v L.T. Benjamin Muema
    [2019] eKLR
  • Eric v J. Makokha & 4 others V. Lawrence Sagini & 2 others
  • Gift Kambu Marandu v Kenya Defence Forces Council & another
    (2017) eKLR
  • Maurice Otieno Oduor v Attorney General
    (2019) eKLR
  • Lieutenant Colonel Lukale Moses Sande v Kenya Defence Forces & another
    (2018) eKLR
  • Joseph Kipkemboi Tanui v Chief of Kenya Defence Forces & 2 others
    [2019] eKLR
  • Obongo v Kisumu Municipal Council
    (1971) EA 91
  • Rookes v Barnard & 7 others
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations jurisdiction)

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, "Mulekano v Attorney General (Cause 6 of 2020) [2024] KEELRC 634 (KLR)", Case Analysis (2024). Cause No 6 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/634/eng@2024-03-14

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