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ELRCPartially AllowedPetition No E073 of 2022· [2024] KEELRC 1087 (KLR)

Konyelo v Chief of Kenya Defence Forces & 2 others (Petition E073 of 2022) [2024] KEELRC 1087 (KLR)

Employment and Labour Relations Court
12 March 2024
3,854 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court restored a dismissed soldier's pension, ruling that taking away 28 years' earned pension amounts to unconstitutional double punishment, even where the dismissal itself was fair.

What this practically means

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Executive summary

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The Petitioner, a former Corporal who served in the Kenya Defence Forces from 11th April 1991 until his summary dismissal on 12th July 2019, petitioned the Employment and Labour Relations Court challenging his dismissal and the denial of pension. He was dismissed after a video of him making disparaging remarks about the KDF to junior soldiers, recorded without his consent and circulated online, went viral. He alleged violations of his rights to fair administrative action (Article 47), fair hearing (Article 50), dignity (Article 28), fair labour practices (Article 41) and legitimate expectation, and sought rescission of the termination, pension, salary to retirement, damages and costs. The Respondents maintained the dismissal was lawful under the KDF Act, that pensions are not a right and may be withheld upon dismissal, and challenged the Court's jurisdiction over pension disputes. The Court found the Petitioner's utterances were sufficient to trigger the disciplinary process, and that he was charged, heard, his defence considered and his appeal duly dismissed; the dismissal itself was therefore unimpeachable. However, the Court held that denying a soldier of 28 years' blameless service his pension amounted to double punishment and subjected him to slavery and servitude contrary to Article 25(b), an inalienable right. The Petition succeeded in part: the Court ordered restoration and payment of the Petitioner's pension from 11th April 1991 to 12th June 2019, lumpsum payment of accumulated arrears, continuation of pension payments per law, and costs payable by the 1st and 2nd Respondents to the exclusion of the Attorney General.

Key legal issues

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01

Whether the summary dismissal of the Petitioner was lawful and fair

Holding

The dismissal was lawful; the disciplinary process accorded with natural justice as the Petitioner was charged, heard, his defence considered, and his appeal considered and dismissed by the Kenya Army Commander.

Reasoning

The Court found the Petitioner's utterances demeaned the KDF at a time Kenya was engaged in a mission in Somalia, sufficient to trigger discipline. He was given a statement of charges, knew the ingredients of the charge, made a reply, was heard, and his dismissal was confirmed on appeal. The Court found no procedural unfairness in the summary trial.

p. 6
02

Whether denial of pension and gratuity was lawful

Holding

The denial of pension was double jeopardy/punishment and violated Articles 28, 29(f) and 25(b) of the Constitution.

Reasoning

Having already been punished by removal from service, the Petitioner could not also be denied his pension. Having served 28 years without incident, he was entitled to have his sweat rewarded. The Court invoked the non-derogable right to freedom from slavery and servitude under Article 25(b), holding that only slaves work for no wage, and ordered the pension restored.

p. 6
03

Whether the Court has jurisdiction over the dispute

Holding

The Court had jurisdiction in so far as the Petition was premised on alleged constitutional infringements arising from the Petitioner's service with KDF; the Respondents' jurisdictional objection as to pension disputes was overcome through the constitutional rights route.

Reasoning

The Respondents argued under section 3(2) of the Employment Act and the Gift Kambu authority that the Court lacked jurisdiction over pension disputes. The Petitioner relied on Articles 161(2)(a) and 165(5) and the USIU authority. The Court exercised jurisdiction as a constitutional petition grounded in rights violations, including the non-derogable Article 25(b) right.

p. 6

Legal principles established

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  • Denial of pension to a soldier dismissed from service, after 28 years of service, amounts to double punishment and subjects the soldier to slavery and servitude contrary to Article 25(b).
  • An employer who follows the rules of natural justice in disciplinary proceedings - by notifying charges, hearing the employee, considering the defence and allowing an appeal - cannot be faulted.

Court orders

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  1. 1.The Petitioner be paid his pension for the period of his service which is from 11th April 1991 to 12th June 2019.
  2. 2.Accumulated pension sums since dismissal to be paid in lumpsum, with the next payment falling due on 31st March 2024 paid on time.
  3. 3.Pension to continue to be paid per law until the 1st and 2nd Respondents are freed from that obligation as provided for in law.
  4. 4.The 1st and 2nd Respondents to pay costs of the Petition to the Petitioner, to the exclusion of the Honourable the Attorney General.

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 19, 20(1), 21, 22, 23, 25(b), 27, 28, 29(f), 33, 41, 47, 48, 50(1), 156, 161(2)(a), 165(5), 236(b), 241, 241(3), 258, 259
  • Kenya Defence Forces Act, 2012Sections 121, 147, 152(2), 156(2)(a)(i), 181(3), 244, 244(2), 52
  • Armed Forces Rules of Procedure, 1969Rule 8
  • Armed Forces (Officers Servicemen) (Pensions and Gratuities) RegulationsRegulation 6
  • Employment ActSections 3(2), 43, 49
  • KDF (Pensions and Gratuities) (Officers and Service Members) Regulations, 2017Rule 6; Legal Notice No. 237

Cases cited (8)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil Kenya Ltd
    [1989] KLR 1
  • United States International University (USIU) v The Attorney General and others
    [2012] eKLR
  • Evans Kamadi Misango v Barclays Bank of Kenya Limited
    [2015] 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
  • Gift Kambu Marandu v Kenya Defence Forces Council & another
    [2017] eKLR
  • Arab Sugal Adow v Cabinet Secretary Ministry of Defence & 2 others
    [2020] eKLR
  • Simon P. Karimi v Kenya Commercial Bank Limited & another
    [2005] eKLR
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya; Employment and Labour Relations Court jurisdiction under Articles 161(2)(a) and 165(5)

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, "Konyelo v Chief of Kenya Defence Forces & 2 others (Petition E073 of 2022) [2024] KEELRC 1087 (KLR)", Case Analysis (2024). Petition No E073 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1087/eng@2024-03-12

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