Defence Cabinet Secretary Soipan Tuya has suffered a major legal setback after the Court of Appeal rejected her attempt to block a former Kenya Defence Forces (KDF) soldier from receiving Ksh1 million awarded to him for wrongful dismissal.
The Appellate Court ruled that Tuya’s request for a stay of execution of the compensation order did not meet the legal standards required for consideration.
Justices Wanjiru Karanja, Kathurima M’Inoti, and Lydia Achode explained that the CS had failed to prove two key things: that the ex-soldier would be unable to refund the money if the final appeal succeeded, and that paying him the amount now would render the appeal useless.
The former soldier received the award from the Employment and Labour Relations Court (ELRC) on January 31, 2025.
The court found that his dismissal linked to a theft allegation dating back to 2006 was unlawful. He had argued that he was convicted, mistreated, and dismissed without being allowed a fair hearing, and the ELRC agreed.
Background of the Case
In March 2006, the soldier was charged before his commanding officer with conduct prejudicial to good order and military discipline under section 68 of the now-repealed Armed Forces Act (Cap 199 Laws of Kenya).
The accusation was that he had stolen a bicycle belonging to a Corporal, his senior officer.
Eight years later, in 2014, the soldier filed a petition at the ELRC challenging both his conviction and dismissal. He demanded back pay from the date he was removed from service, compensation for unlawful imprisonment and dismissal, plus his pension and gratuity.
However, in 2021, CS Tuya and the Attorney General filed an appeal before the ELRC. They wanted two sets of documents submitted by the soldier removed from the court record, arguing one set consisted of uncertified photocopies and the other comprised restricted records the soldier was not authorised to possess.
Justice Rika heard the application and dismissed it, stating that the documents were part of the soldier’s service records and therefore relevant.
In response, the CS and the Attorney General lodged another appeal seeking to pause further proceedings at the ELRC.
That appeal was never heard. As a result, the ELRC went ahead with the case and eventually awarded the soldier Ksh1 million in compensation.
CS Tuya later took the matter to the Court of Appeal, arguing that the ELRC had accepted evidence obtained unlawfully and had violated their right to a fair hearing as provided under Article 50 of the Constitution.
Final Ruling Clears the Way for Payment
In its latest ruling, the Court of Appeal dismissed Tuya’s application and effectively gave the green light for the former soldier to collect his compensation. The court was clear that since the CS did not meet the requirements for a stay of execution, the payment should proceed.
With this decision, the long-running case has now shifted in favour of the former soldier, who is set to finally receive the money awarded to him after years of legal battles.
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