The Court of Appeal has dismissed an appeal by Defence Cabinet Secretary Soipan Tuya to prevent a former Kenya Defence Forces (KDF) soldier from claiming Ksh1 million in compensation awarded to him over wrongful dismissal.
In the ruling, the Appellate court found that Tuya’s appeal for a stay of the execution of orders granting the ex-soldier his compensation did not meet the required threshold to be considered by the court.
While delivering the ruling, Justices Wanjiru Karanja, Kathurima Mi’Noti, and Lydia Achode noted that CS Tuya had failed to prove that the soldier would be unable to refund the million shillings awarded to him and that the appeal would be rendered nugatory.
The soldier had been awarded the money by the Employment and Labour Relations Court (ELRC) on January 31, 2025, over wrongful dismissal in an alleged theft case back in 2006.
The ELRC noted that the soldier’s conviction, harassment and dismissal after the incident were unlawful after the army man had argued that he had been denied the right to a fair hearing, among other grounds.
The Backstory
In March 2006, the soldier was charged before his commanding officer with the offence of conduct prejudicial to good order and service discipline contrary to section 68 of the Armed Forces Act, Cap 199 Laws of Kenya, which has since been repealed.
The charges related to allegations that he had stolen a bicycle belonging to his boss, a Corporal.
In 2014, the soldier went on to file a petition at the ELRC challenging his conviction and dismissal, where he sought payment of his salary arrears from the date of his dismissal, damages for unlawful imprisonment and dismissal, and award of his pension and gratuity.
However, seven years later, CS Tuya and the Attorney General filed an appeal before the ELRC seeking to expunge from the record two bundles of documents forming part of the soldiers' claim.
The two contended that one of the bundles of documents comprised of uncertified photocopies, whilst the other was a copy of restricted documents which the soldier was not authorised to have.
In a hearing by Justice Rika, the appeal was dismissed after the judge found that the documents were merely part of the soldier’s service records. In response, the CS and the AG filed another appeal, seeking a stay of further proceedings before the ELRC.
However, the appeal has never been heard, and this led to the ELRC hearing the soldier’s case and later proceeding to award him the Ksh1 million.
The CS went on to file the present appeal before the Court of Appeal, arguing that the ELRC allowed illegally obtained evidence and denied them the right to a fair hearing contrary to Article 50 of the Constitution.
Fast forward to the current ruling, the Appellate court has now paved the way for the soldier to receive the money awarded to him.
