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ELRCPartially AllowedAppeal against Ruling in MCELRC 559/2019· [2025] KEELRC 2653 (KLR)

Kenya Defence Forces & 2 others v Munene (Appeal E257 of 2023) [2025] KEELRC 2653 (KLR)

Employment and Labour Relations Court of Kenya
26 September 2025
JKJ. W. Keli
4,255 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that ex-military officers cannot sue the Kenya Defence Forces under the Employment Act and must first use the military's internal grievance channels.

What this practically means

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Executive summary

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The Appellants appealed the ruling of Hon. R. L. Musiega (SRM) of 8 December 2023 in MCELRC 559/2019, which had dismissed their Notice of Motion dated 13 March 2023 seeking striking out of the Respondent's claim for unfair termination from the Kenya Defence Forces. The Appellants argued the suit was statute-barred under the Public Authorities Limitations Act, that the Respondent failed to exhaust internal mechanisms under section 303 of the Kenya Defence Forces Act and the Pension Appeal Board route, and that the trial court lacked jurisdiction. The Respondent maintained this was an employment dispute within the magistrate court's delegated ELRC jurisdiction, that the claim fell under section 3(2) PALA, and that the Appellants' own failure to trigger the section 159 automatic review process estopped them from invoking exhaustion. The Court framed the main issue as jurisdiction, applying Mbogo v Shah and the striking-out jurisprudence in Kivanga Estates and DT Dobie. It held the Employment Act excludes the KDF, so no employment claim lay against it; the KDF disciplinary process is quasi-judicial, challengeable only under the Fair Administrative Action Act or the Constitution; compensation for Article 47 violations is beyond a magistrate's jurisdiction under section 8(3) of the Magistrates Court Act; and pension grievances lie to the Pension Appeal Board, never invoked. The appeal was allowed, the trial ruling set aside, the claim struck out for want of jurisdiction with costs to the applicant in the trial court, but no order as to costs in the appeal.

Key legal issues

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01

Jurisdiction of the trial magistrate's court over an ex-KDF serviceman's claim for unfair termination

Holding

The trial court lacked jurisdiction: the Employment Act excludes the KDF, the magistrate's court could not award compensation for Bill of Rights violations, and pension grievances fall to the Pension Appeal Board

Reasoning

Section 3(2) of the Employment Act excludes the Kenya Defence Forces. The claim for compensation for unfair termination was read as a challenge to the KDF quasi-judicial process, sounding in fair administrative action under Article 47. Section 8(3) of the Magistrates Court Act bars magistrate courts from awarding compensation for Bill of Rights violations. Terminal dues claims lie before the Pension Appeal Board, which the Respondent never invoked.

p. 10
02

Exhaustion of internal administrative remedies under section 9 of the Fair Administrative Action Act

Holding

The Respondent did not exhaust the internal grievance mechanism under section 303 of the Kenya Defence Forces Act or the Pension Appeal Board route, and did not seek exemption on exceptional circumstances

Reasoning

The KDF Act establishes an internal grievance mechanism via Legal Notice 229 of 2017, and the Pensions Regulations establish a Pension Appeal Board. Section 9(2) of the Fair Administrative Action Act bars court review of administrative action before internal mechanisms are exhausted, save in exceptional circumstances under section 9(4), which the Respondent neither pleaded nor sought.

p. 5
03

Striking out pleadings

Holding

Striking out is a draconian act resorted to only in plain cases; here the claim, being incompetent for want of jurisdiction, was struck out

Reasoning

Applying the jurisprudence in Kivanga Estates, DT Dobie and Yaya Towers, the court noted striking out is discretionary and reserved for plain cases disclosing no semblance of a cause of action or incurable defects. A suit filed before a court without jurisdiction is incurable.

p. 6

Legal principles established

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  • A magistrates' court has no jurisdiction to award compensation for loss or damage suffered in consequence of a violation of a right in the Bill of Rights
  • The Employment Act does not apply to the Kenya Defence Forces; a claim by an ex-military officer cannot lie against the KDF under the Employment Act or the Labour Relations Act, and the applicable law is the Kenya Defence Forces Act
  • The disciplinary process under the Kenya Defence Forces is a comprehensive quasi-judicial process challengeable only under the Fair Administrative Action Act and/or the Constitution, and terminal dues grievances lie to the Pension Appeal Board

Court orders

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  1. 1.The Ruling and Orders of the Hon. R. L. Musiega (SRM) delivered on December 8th, 2023, in MCELRC 559/2019 are set aside
  2. 2.The application dated March 13th, 2023 is granted and the claim dated 12th April 2019 is struck out for want of jurisdiction, with costs awarded to the applicant in the trial court
  3. 3.No order as to costs in this appeal

Authorities

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Legislation

  • Public Authorities Limitations ActSection 3(1), 3(2)
  • Fair Administrative Action ActSection 9(2), 9(4)
  • Kenya Defence Forces ActSection 303, Section 159
  • Kenya Defence Forces (Internal Grievance Mechanism) Rules, 2017Legal Notice No. 229 of 2017
  • Armed Forces (General Regulations), 1969Definition of Commanding Officer
  • Armed Forces (Pensions and Gratuities) (Officers and Servicemen) RegulationsPension Appeal Board
  • Employment and Labour Relations Court ActSection 29(3) and (4)(b)
  • Magistrates Court ActSection 8
  • Employment ActSection 3, Section 49
  • Constitution of Kenya, 2010Articles 47, 165(3)(b), 25(a) and (b)
  • Labour Relations Act, 2007Part 4
  • Work Injury Benefits Act, 2007
  • Labour Institutions Act, 2007
  • Occupational Safety and Health Act, 2007

Cases cited (10)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA Page 93
  • Non-Governmental Organisations Co-ordination Board vs EG & 5 others
    Civil Appeal Number 145 of 2015; 2019 eKLR
  • Speaker of the National Assembly vs Karume
    2008 1 KLR EP 425
  • Krystalline Salt Limited v Kenya Revenue Authority
    (2019) eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] KECA 591 (KLR)
  • Co-Operative Merchant Bank Ltd. vs George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited vs Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • DT Dobie & Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
  • Mulekano v Attorney General
    (Cause 6 of 2020) [2024] KEELRC 634 (KLR) (14 March 2024)
On appeal from
Chief Magistrate's Court (Employment and Labour Relations), Nairobi
MCELRC 559/2019 (Nairobi MC ELRC 558 of 2019 referenced in grounds)
Jurisdiction invoked
First appellate jurisdiction over the subordinate court; Gazette Notice No. 6024 under section 29(3) and (4)(b) of the Employment and Labour Relations Court Act, 2011 designating Magistrates' Courts to hear employment matters

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, "Kenya Defence Forces & 2 others v Munene (Appeal E257 of 2023) [2025] KEELRC 2653 (KLR)", Case Analysis (2025). Appeal against Ruling in MCELRC 559/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2653/eng@2025-09-26

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