A former Kenya Defence Forces (KDF) soldier has been awarded Ksh8 million by the Court of Appeal for unfair dismissal and imprisonment.
He was dismissed in 2012 after serving in the KDF for ten years, having failed to report for duty on a Saturday, which he observes as a Sabbath day.
According to court documents, he had requested permission to be absent from duty in order to attend Sabbath worship on May 31, 2012, but his immediate supervisor denied the request.
This was the first time in his decade of service that such permission had been refused.
The court report stated that this led to disciplinary action, resulting in the soldier being imprisoned for 42 days and subsequently dismissed on the grounds that his services were no longer required.
Following his dismissal, he filed a constitutional petition with the Employment and Labour Relations Court (ELRC), stating that his termination and imprisonment had violated his constitutional rights.
In her ruling, Justice Pauline Nyamweya declared that the former soldier had been dismissed and imprisoned unconstitutionally and unlawfully.
She also ruled that preventing the former soldier from worshipping on Saturday infringed his right to religious beliefs and practice.
The court awarded the ex-soldier Ksh5 million for the violation of his religious rights, Ksh3 million in exemplary damages for unlawful imprisonment and 12 months’ salary for unlawful termination with interest on damages accruing from the date of the ELRC judgment, and the costs of the case..
The Chief of Defence Forces, the Cabinet Secretary for Defence, and the Attorney General had appealed an earlier ruling by the ELRC that had awarded the former soldier damages, a decision that was upheld by the Court of Appeal.
They stated that the former soldier's failure to report for work constituted insubordination rather than religious persecution.
They added that discipline and uniformity are important in the military, and that making exceptions for individual religious beliefs could compromise operational readiness.
They also referenced Section 255 of the KDF Act, which permits discharge if a person's services are no longer required.
