However, KDF, in a rejoinder, claimed that he was court-martialed on four counts of the offence of conduct to prejudice good order and service discipline, contrary to Section 121 of the Kenya Defence Forces Act [KDFA]. Details were that while discharging duties as Medical Verification Officer, he received the sums of Ksh. 100,000, Ksh. 20,000, Ksh. 150,000, and Ksh. 100,000, respectively, from the proprietor of Tahidi Nursing Home, Mwingi, in consideration for clearing fictitious hospital bills amounting to Ksh. 748,646
The Employment and Labour Relations Court in Nairobi has awarded a major with the Kenya Defence Forces Ksh. 7 million in compensation for unfair termination of employment. In a ruling dated September 6, 2023, by Judge James Rika, he declared that the KDF violated his constitutional rights, in particular under Articles 41, 47, and 50 of the Constitution, and that termination of service or dismissal was unfair, unlawful, and unconstitutional.
The ruling reads in part, “It is declared that the claimant is entitled to pension and gratuity, as he would have been paid on normal retirement. He is granted a half-monthly salary withheld by the 1st Respondent for 36 months at Ksh. 3,109,536; a medical risk allowance at Ksh. 146,000; and compensatory damages at Ksh. 4 million (total Ksh. 7,255,536).
The officer was employed by the Kenya Defense Forces as a cadet officer in 1991. He rose through the military ranks. He last held the rank of major. He was last posted to Forces Memorial Hospital as head of the Intensive Care Unit. However, he was court-martialled in 2015 for various offences, convicted, and sentenced to 1-year imprisonment on June 11, 2018.
The decision of the Court Martial was quashed in its entirety by the High Court on Appeal on June 10, 2020. He later asked KDF for redeployment, but it was declined. He later proposed early retirement with all benefits in the alternative, a proposal that was not accepted by KDF.
Records reveal that his last salary was Ksh. 254,102, including a basic salary of Ksh. 172,752; a house allowance of Ksh. 58,000; a mess cash allowance of Ksh. 14,500; a health risk allowance of Ksh. 3,850; a water allowance of Ksh. 2,000; and a domestic servant allowance of Ksh. 3,000. He was paid half his basic salary from 2015, during the court martial proceedings, until convicted in 2018.
However, KDF, in a rejoinder, claimed that he was court-martialed on four counts of the offence of conduct to prejudice good order and service discipline, contrary to Section 121 of the Kenya Defence Forces Act [KDFA]. Details were that while discharging duties as Medical Verification Officer, he received the sums of Ksh. 100,000, Ksh. 20,000, Ksh. 150,000, and Ksh. 100,000, respectively, from the proprietor of Tahidi Nursing Home, Mwingi, in consideration for clearing fictitious hospital bills amounting to Ksh. 748,646.
He was charged further with three counts of the offence of neglect of duty, contrary to Section 65 of the KDFA. He was alleged to have approved payment for the inpatient hospitalization of two patients at Tahidi Nursing Home and Waso Medical and Nursing Home, respectively, without admission authorization.
The officer claimed that he was never called by the KDF for a disciplinary hearing and that he was 57 years old at the time of giving evidence in the proceedings herein [2022]. He was set to retire at the age of 60. He did not receive any letters of discharge.
KDF’s defence, through Major Edwin Mutta, confirmed that the officer was employed in April 1991. Adopting his statement of witness and documents, Major Mutta told the court that the subject was court-martialed as pleaded. He received Ksh. 370,000 from Tahidi Nursing Home, Mwingi, in clearance of fictitious bills. He was court-martialed at Moi Airbase, Eastleigh, in Nairobi. He was tried, found guilty, and sentenced to 1-year imprisonment. The Defense Council later authorized the termination of his service without benefits.
In his ruling, the judge noted that “dismissal of the claimant, or termination of the claimant’s service, was unfair, unlawful, and unconstitutional.” There is no justification in continuing to deny him pension and gratuity as given by the KDFA”.
