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ELRCDismissedELRC 2059 of 2015· [2024] KEELRC 892 (KLR)

Ochieng v Attorney General & 3 others (Cause 2059 of 2015) [2024] KEELRC 892 (KLR)

Employment and Labour Relations Court
18 April 2024
MOMaureen Onyango
3,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a KDF soldier's discharge was lawful because he was offered and accepted a fair summary trial, and benefits were paid.

What this practically means

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Executive summary

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The Claimant, a former Kenya Defence Forces serviceman, sued the Attorney General and three military/state officers claiming that his 2013 separation from service was wrongful, unfair and discriminatory on account of his Bipolar disorder, and that his arrest and detention and the summary disciplinary process violated his constitutional rights. He sought declarations, damages, salary for 16 years, pension, service pay and reinstatement, among other reliefs. The Respondents maintained that the Claimant was tried before his Commanding Officer for quarrelling with a colleague and selling food to a civilian without authority, that he was accorded a fair hearing including the election under section 157(1) of the Kenya Defence Forces Act, and that he was discharged (not dismissed) with full terminal benefits and pension. The court framed four issues: whether the Claimant was discharged or dismissed; whether the disciplinary proceedings met the substantive and procedural requirements of the Kenya Defence Forces Act; whether he was unlawfully detained; and what reliefs should issue. The court found that the Claimant was discharged and paid his benefits; that his recorded election to accept the Commanding Officer's award satisfied section 157(1); that he was given an opportunity to question witnesses; that the unlawful detention allegation was not proved; and that his medical condition was never raised during the disciplinary process or his appeal. The claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Claimant was discharged or dismissed

Holding

He was discharged, not dismissed, as evidenced by payment of terminal benefits and pension

Reasoning

The Respondents' witness testified the Claimant was not dismissed but discharged. The Claimant himself admitted receiving terminal benefits and being on monthly pension. The Regulations define discharge as being relieved of military duties by the Commander or an authorised officer, entitling the officer to full benefits up to discharge.

p. 7
02

Procedural fairness of the summary trial before the Commanding Officer

Holding

The proceedings complied with section 157(1) as the Claimant elected to accept the Commanding Officer's award

Reasoning

Section 157(1) requires that the accused be given the opportunity to opt for court-martial trial before summary disposal. The Summary Trial proceedings recorded the Claimant's election to accept the Commanding Officer's award. He was also given opportunity to cross-examine witnesses. The procedure was therefore lawful.

p. 8
03

Whether the Claimant was unlawfully detained

Holding

Not proved on evidence

Reasoning

RW1 testified that military officers are subject to arrest and detention irrespective of rank. The Claimant alleged unlawful detention but adduced no evidence to prove it. The burden of proof was on the Claimant and the allegation therefore failed.

p. 8
04

Whether termination was discriminatory on the basis of the Claimant's Bipolar condition

Holding

No discrimination established; the medical condition was never raised during the disciplinary process or in the appeal

Reasoning

The Claimant asserted discrimination based on his Bipolar disorder, but the evidence showed the medical condition was never raised during the disciplinary process nor in his appeal. The discharge was instead based on the offences of quarrelling with a colleague and selling food to a civilian, which he admitted.

p. 8

Legal principles established

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  • Before dealing with a charge summarily, a commanding officer must give the accused the opportunity to opt to be tried by a court-martial
  • A discharged officer of the Kenya Defence Forces is entitled to full benefits up to the date of discharge

Court orders

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  1. 1.The petition is dismissed for want of merit
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1),(2),(5), 28, 29(a),(b),(c),(d),(f), 156
  • Repealed ConstitutionSections 70(a) and 74(1)
  • Kenya Defence Forces ActSections 86(1),(2), 121, 147, 150, 156(1), 156(1)(a), 157(1)-(6), 255(1)
  • Kenya Defence Forces (Pensions and Gratuities) (Officers and Service members) Regulations, 2017Definition of 'discharge'

Cases cited (2)

  • Anne Wambui Kamuiru v Kenya Airways Ltd
    (2010) eKLR
  • Leonard Mwangemi Munyasia v Republic
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution over employment and labour relations disputes

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, "Ochieng v Attorney General & 3 others (Cause 2059 of 2015) [2024] KEELRC 892 (KLR)", Case Analysis (2024). ELRC 2059 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/892/eng@2024-04-18

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