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ELRCPartially AllowedFurther Re-Amended Plaint dated 24th June 2005 (formerly High Court Civil Suit, transferred to ELRC by Odunga J on 30th August 2012)· [2016] KEELRC 1837 (KLR)

Samuel Chege Gitau & 283 Others v Attorney General [2016] KEELRC 1837 (KLR)

Employment and Labour Relations Court
15 April 2016
16,997 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~68 min to read original · ~4 min brief

The bottom line

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284 former Kenya Air Force personnel unlawfully dismissed after the 1982 coup attempt won damages, salary arrears, pension and restored ranks from the Kenyan state.

What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court (Mathews N. Nduma, Principal Judge) determined a claim by 284 former Kenya Air Force officers and servicemen arrested, tortured and discharged following the failed coup d'état of 1st August 1982. The suit, instituted by plaint in 1995 and transferred from the High Court to the ELRC in 2012, survived a limitation challenge: Ojwang J had in 2005 characterised the claims as public law claims and the Respondent never appealed that finding; the court further held that no limitation applies to constitutional petitions and endorsed the transitional-justice reasoning of Lenaola J in the General Juma Gichohi case. On the merits, the court found the Kenya Air Force was disbanded and replaced on 12th August 1982 by the '82 Air Force', an entity held illegal by Akiwumi J, so the terminations effected by its Commander were null and void. The Claimants' unchallenged testimony of beatings, water-logged cells, incommunicado detention for about eight months, coerced confessions and summary trials established violations of Sections 72(1)(3), 74(1) and 77(1)(2) of the repealed 1969 Constitution on a balance of probabilities. Reinstatement was refused as impracticable given the passage of time and ages of the Claimants. The court awarded each Claimant salary arrears from discharge to retirement date, aggravated damages of Kshs. 1,000,000, restoration of ranks, honours and decorations, pension from the date of judgment, interest at court rates, and ordered the Respondent to pay costs and file its computation within 60 days.

Key legal issues

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01

Whether the Claimants were lawfully removed from the Kenya Air Force

Holding

The removal was unlawful and a nullity; the 82 Air Force that effected the discharges was an illegal entity, and the Claimants were discharged without lawful process and without payment of dues.

Reasoning

Relying on Akiwumi J's ruling in Misc. Application No. 293 of 1993 (Captain Geoffrey Kusoga v AG) that the 82 Air Force was not founded on the Armed Forces law and was illegal, the court held that terminations by its Commander were null and void. The Respondent produced records for only 23 of 284 Claimants and adduced no evidence to refute the testimony of torture, summary trials and unlawful discharge.

p. 21
02

Whether violations of fundamental rights under the repealed Constitution were established

Holding

Yes - torture, inhuman and degrading treatment, wrongful arrest and imprisonment, and denial of fair hearing in violation of Sections 72(1)(3), 74(1) and 77(1)(2) of the 1969 Constitution were proved on a balance of probabilities.

Reasoning

The Claimants gave vivid, detailed and consistent testimony of beatings, water-logged cells, denial of food and water, incommunicado detention for about 8 months, and coerced confessions. RW1 himself admitted the treatment was unlawful and against the law, and the Respondent filed no affidavit or rebuttal evidence. The court also invoked Article 5 of the UDHR.

p. 22
03

Whether the suit is defeated by limitation under the Public Authorities Limitation Act

Holding

No. The suit was founded on constitutional violations, for which there is no limitation; the High Court (Ojwang J) had already determined limitation in the Claimants' favour and the Respondent never appealed that finding.

Reasoning

Ojwang J in 2005 held the claims were public law claims concerning lack of jurisdiction and violation of statutory safeguards, so the Cap 59 limitation periods did not apply. The court declined to revisit the issue, and relied on a line of authorities (Dominic Aroy Amolo, Joan Akinyi Kabasellah, Lenaola J in General Juma Gichohi) that no limitation applies to constitutional petitions, noting it would be discriminatory to bar these Claimants where similar 1982 coup cases were heard on the merits.

p. 18
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What remedies flow from the findings

Holding

Reinstatement refused as impracticable; the Claimants received salary arrears to retirement date, aggravated damages of Kshs. 1,000,000 each, restoration of ranks, honours and decorations, pension from date of judgment, interest and costs.

Reasoning

The court assessed damages judicially guided by Peter M. Kariuki (CA), Ezra Laibuta (Industrial Court) and the principles that awards should be reasonable, realistic and comparable, considering ranks, length of service, dates of discharge (Schedule A), the torture endured and the stigma and inability to obtain alternative employment.

p. 24

Legal principles established

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  • A termination of employment carried out by an entity not established by law (the 82 Air Force) is a nullity; the Claimants being employees of the Kenya Air Force, their termination by the 82 Air Force was void.
  • There is no limitation period applicable to constitutional claims alleging violation of fundamental rights.
  • Unchallenged evidence of torture and degrading treatment at the hands of state organs proves the violation on a balance of probabilities.

Court orders

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  1. 1.Declaration that the Claimants suffered in the hands of an illegal authority called 82 Air Force which had no authority to retire, dismiss or terminate their services as they had contracted their services with the Kenya Air Force
  2. 2.Declaration that the Claimants suffered wrongful torture, arrest, unfair trial, imprisonment and discharge from service without payment of arrear salary, terminal benefits and pension
  3. 3.General damages to each Claimant comprising salary arrears based on current salary payable to servicemen and officers in their respective ranks at discharge, from date of respective discharge to date of respective retirement or date of judgment, whichever is earlier
  4. 4.Aggravated damages of Kenya Shillings One Million each (Kshs. 1,000,000) for wrongful imprisonment, torture, inhuman and degrading treatment and violation of right to fair hearing
  5. 5.The Claimants' ranks, honours and decorations be restored from the date of judgment since their discharge was unlawful
  6. 6.The Claimants be paid pension from the date of the judgment
  7. 7.Interest at court rates on the awards from date of judgment till payment in full
  8. 8.Costs of the suit be paid by the Respondent
  9. 9.Respondent to file computation of the award within 60 days, failing which the Claimants to file their computation within 30 days upon expiry of the 60 days
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 (transfer to the Industrial Court by Odunga J)

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, "Samuel Chege Gitau & 283 Others v Attorney General [2016] KEELRC 1837 (KLR)", Case Analysis (2016). Further Re-Amended Plaint dated 24th June 2005 (formerly High Court Civil Suit, transferred to ELRC by Odunga J on 30th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1837/eng@2016-04-15

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