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ELRCPartially AllowedPetition dated 10th January 2023

Losuru v Attorney General & another (Petition E001 of 2023) [2025] KEELRC 2679 (KLR)

Employment and Labour Relations Court
25 September 2025
7,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the Defence Forces unlawfully dismissed an officer without a hearing, awarding him Kshs. 1,000,000 for rights violations.

What this practically means

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Executive summary

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The Petitioner, a former Kenya Defence Forces officer commissioned on 23rd May 2012, sued the Attorney General and the Ministry of Defence challenging the termination of his commission on 11th June 2014, following an incident while training at a South African flight academy in which the Director's greeting went unanswered. He sought declarations of unfair termination, violation of Articles 27, 28, 41, 47 and 50, a finding that Section 148 of the Kenya Defence Forces Act was unconstitutional, and Kshs. 20,535,307 in monetary reliefs. The Respondents maintained the Defence Council exercised a lawful administrative discretion under Section 251, that reasons were given, and raised limitation, exhaustion of internal remedies and constitutional avoidance objections. The court framed five issues. On limitation, relying on Supreme Court authority, it held that fundamental-rights petitions are not subject to the Limitation of Actions Act and the Petitioner's evidence of threats adequately explained the delay. On process, the court found no evidence of any charge, hearing or disciplinary process, and noted that failing to respond to a greeting is not an offence under the KDF Act; the termination therefore violated Article 47 and Sections 151 and 251. Section 148 was held constitutional when read with Sections 147 and 251. The court declared the Petitioner's rights under Articles 27, 28, 41, 47 and 50 violated, awarded him Kshs. 1,000,000 compensation, refused further monetary relief on notice pay and gratuity (already paid or offset against acknowledged liabilities), awarded costs against the Respondents and interest from the date of judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petition is time-barred
  2. 2.Whether the termination of the Petitioner's commission was substantively justified and whether due process and fair hearing were accorded to the Petitioner
  3. 3.Whether section 148 of the Kenya Defence Forces Act is unconstitutional
  4. 4.Whether the Petitioner's constitutional rights under Articles 27, 28, 41, 47 and 50 were violated
  5. 5.Whether the Petitioner is entitled to the remedies sought

Key legal issues

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01

Whether the Petition is time-barred

Holding

Although the Petition was filed nearly a decade after termination, the delay was sufficiently explained (threats and intimidation); constitutional claims on violations of fundamental rights are not barred by limitation

Reasoning

Relying on Supreme Court authority, the court held that petitions founded on violations of fundamental rights are not subject to limitation of actions, though a court may consider inordinate delay case by case. The Petitioner's unchallenged evidence that he and journalists were threatened by a Department of Defence caller was accepted as a credible explanation for the delay.

p. 12
02

Whether due process and fair hearing were accorded to the Petitioner in the termination of his commission

Holding

No hearing was held and no disciplinary process under the KDF Act was followed; the procedure violated Article 47 and Sections 151 and 251 of the KDF Act

Reasoning

The court found no evidence of a complaint, charge, disciplinary hearing or opportunity for the Petitioner to state his case; the discharge certificate did not state reasons; and failing to respond to a greeting is not an offence under Part VI of the KDF Act. Termination of commission may be administrative, but it remains subject to Article 47.

p. 14
03

Whether Section 148 of the Kenya Defence Forces Act is unconstitutional

Holding

Section 148 is not unconstitutional; it must be read with Section 147 (guiding principles anchored on Article 47) and Section 251, and the Act complies with Article 24

Reasoning

The court held that Section 148 cannot be read in isolation as it is preceded by Section 147, which safeguards fair administrative action and fair hearing, and Part V of the Act limits rights strictly within Article 24(5) criteria. Accordingly the constitutional challenge failed.

p. 16
04

Whether the Petitioner's constitutional rights under Articles 27, 28, 41, 47 and 50 were violated

Holding

The Respondents violated the Petitioner's fundamental rights and freedoms under Articles 27, 28, 41, 47 and 50

Reasoning

The Petitioner was not afforded a hearing before termination, and the termination was based on grounds (failing to respond to a greeting) that did not constitute offences under the KDF Act, denying him the protection of the disciplinary provisions. This amounted to violations of fair labour practices, fair administrative action, fair hearing, equality, non-discrimination and dignity.

p. 16
05

Whether the Petitioner is entitled to the remedies sought

Holding

Partially: compensation of Kshs. 1,000,000 awarded; notice pay and gratuity refused as already paid/offset; other heads refused for want of basis

Reasoning

The court took into account all circumstances of the Petitioner's case and awarded Kshs. 1,000,000 as reasonable compensation for the established violations. Since notice salary was paid and gratuity was computed and applied against his acknowledged liabilities, no further monetary awards were justified on those heads.

p. 16

Legal principles established

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  • Constitutional petitions founded on violations of fundamental rights and freedoms are not subject to the Limitation of Actions Act, but inordinate delay is considered on a case-by-case basis with a credible explanation
  • Administrative action terminating an officer's commission must accord with Article 47's requirements of lawfulness, reasonableness and procedural fairness, including a hearing

Court orders

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  1. 1.A declaration that the Petitioner's rights to fair administrative action and fair labour practices under Articles 27, 28, 41, 47 and 50 of the Constitution were violated by the Respondents in the manner the termination of his commission was effected
  2. 2.Compensation awarded to the Petitioner in the sum of Kshs. 1,000,000
  3. 3.The Respondents shall bear the Petitioner's costs of the suit
  4. 4.Interest shall accrue from the date of judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 47 of the Constitution read with the Kenya Defence Forces Act, 2012 and the Fair Administrative Action Act, 2015 (constitutional petition alleging violation of fundamental rights and freedoms under Articles 27, 28, 29, 41, 47 and 50)

Relief refused

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Payment of salary in lieu of notice

The Petitioner had already been paid salary in lieu of notice

p. 16

Payment of service gratuity

Gratuity was computed and utilized to offset his liabilities, leaving him with a liability to the Government

p. 16

The balance of the monetary claims totalling Kshs. 20,535,307

No basis was given for the amounts claimed; the court instead awarded Kshs. 1,000,000 as reasonable compensation

p. 16

Declaration that Section 148 of the Kenya Defence Forces Act is unconstitutional

The court found the provision must be read with Sections 147 and 251 and complies with Article 24

p. 16

Costs

The Respondents shall bear the Petitioner's costs of this suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The constitutional standard of fairness demanded that the Petitioner be accorded a hearing before the adverse decision was made.
p. 14right to a hearing before adverse administrative action
There is no evidence that the Petitioner was taken through the disciplinary process as provided under the KDF Act or any other disciplinary process.
p. 13absence of disciplinary process in termination of commission
Failing to respond to greetings by an instructor while undergoing training is not part of the ofiences set out in that part.
p. 13conduct relied on did not constitute an offence under the KDF Act
A declaration is hereby issued that the Petitioner's right to fair administrative action under Articles 27, 28, 41, 47 and 50 of the Constitution were violated by the Respondents in the manner the termination of his commission was efiected.
p. 16final orders - declaration issued
The Petitioner is awarded compensation in the sum of Kshs. 1,000,000.
p. 16final orders - compensation awarded
The Respondents shall bear the Petitioner's costs of this suit.
p. 16final orders - costs

Issues in the judgment

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minor

The award figure in the compensation ruling and final orders is printed as 'Kshs. 1,000,0000' (an apparent typographical error for Kshs. 1,000,000), creating ambiguity as to the exact amount ordered

minor

The judgment inconsistently labels the termination-of-commission provision, introducing a quotation of section 251 as 'Section 250 of KDF Act' in one paragraph and again as 'Section 251' immediately after

minor

The Respondents gave inconsistent gratuity figures in their pleadings and submissions (Kshs. 488,649.60 vs Kshs. 481,649.60)

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, "Losuru v Attorney General & another (Petition E001 of 2023) [2025] KEELRC 2679 (KLR)", Case Analysis (2025). Petition dated 10th January 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2679/eng@2025-09-25

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