Makwacii v Kenya Defence Forces (Cause 1149 of 2017) [2024] KEELRC 711 (KLR)

The Commanding Officer's verdict on 4th March 2014 was discharge from service, and the Appropriate Superior Authority awarded reduction of rank. There was no record of any further hearing or review where summary dismissal was awarded. Section 158(3)(d) expressly prohibits varying an award to the prejudice of the accused without an opportunity of being heard or making written representations to the reviewing authority. The absence of any record of the enhancement hearing or the officer who enhanced the verdict meant the dismissal breached the statute and fair administrative action.

Section 156(3) requires that punishment of dismissal or reduction in rank be confirmed by the Service Commander, which confirmation the Respondent did not produce. Section 156(4) prohibits more than one punishment for one offence. The Claimant was punished by PUSP and discharged, then on review reduction in rank was awarded, with no clarity whether these were in addition to or in place of earlier verdicts. This confusion and stacking of punishments rendered the process non-compliant with the Act.

The Claimant served from 1980 to 2016, approximately 36 years, with a comparatively clean record, and was due to retire in two years at age 60. Reinstatement was therefore not an available or appropriate remedy. The court fashioned a remedy that put the Claimant in the position he would have occupied had the flawed review not occurred: discharge with full terminal benefits from the date of dismissal, payment of withheld salary, and discharge at his substantive rank.