Onyango v Kenya Defence Forces & another (Cause E662 of 2021) [2024] KEELRC 2205 (KLR)
The bottom line
#A former Kenya Defence Forces officer lost his claim for six years of unpaid salary because he never actually returned to work after his dismissal.
What this practically means
#Executive summary
#Key legal issues
#Effective date of exit from employment
The Claimant ceased to be an employee of the Defence Forces on 6th April 2016 upon dismissal by the Court Martial, not on 11th May 2022 when the Medical Board found him unfit.
The High Court on appeal quashed the conviction but did not order reinstatement; it directed the Kenya Defence Forces to consider the Claimant's case with a view to an appropriate remedy. The parties negotiated, culminating in discharge on medical grounds. The Claimant never resumed duty or worked after the initial dismissal, so no salary accrues for the intervening period.
Claim for salary during court martial period
Respondents conceded the Claimant is entitled to full salary for days worked and the period of court martial proceedings until dismissal, plus 35% disability allowance, but these remain unpaid because the Claimant has failed to clear with his Unit.
The Respondents' written submissions conceded entitlement to benefits including salary for the period worked and court martial proceedings, and the disability allowance. Payment was withheld pending clearance with the Unit to allow forwarding of the file to the Pensions Assessment Committee. The Court nonetheless found the claim as pleaded not proved.
Burden of proof on the Claimant
The Claimant failed to discharge the burden of proving his claim.
The matter was dispensed with by consent on the basis of pleadings and written submissions after the Claimant showed difficulty recalling events. On the material before it, the Court found the Claimant had not proved his entitlement to salary for the post-dismissal period, and the claim failed in its entirety.
Legal principles established
#- An employee cannot claim salary for a period during which he did not work, notwithstanding that his conviction was later quashed on appeal.
Court orders
#- 1.The claim fails and is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute with the Kenya Defence Forces
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Kenya Defence Forces & another (Cause E662 of 2021) [2024] KEELRC 2205 (KLR)", Case Analysis (2024). Cause No E662 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2205/eng@2024-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.