The labour court in Nyeri has rejected a bid by the government to strike out a suit by former Kenya Defence Forces (KDF) Major Peter Mugure seeking his salary to be reinstated.
Justice Njagi Marete dismissed the Ministry of Defence’s request to have the matter removed from court and instead resolved internally by the Defence Council.
Mr Mugure, who is facing trial for the murder of his wife Joyce Syombua and two children in a different court, says he was fired unlawfully following his arraignment over the murder.
He says his salary was stopped on May 13, 2020 after he appeared in court and he was later subjected to a disciplinary hearing before the Laikipia base commander.
In the hearing, which he says was barely a trial but a conviction that lasted only 10 minutes, he was charged with disobeying the KDF Act of 2012 by entertaining guests in the residential section of the airbase without permission.
The committee accused of inviting and accommodating Ms Syombua and her two children at the officers’ mess rooms without permission. He was also charged with illegally booking his family in the residential area.
In their response to the suit, the ministry and the Attorney-General, who are listed as the first and second respondents, argued that the court did not have jurisdiction to determine the dispute because Mr Mugure had not exhausted all the dispute resolution mechanisms under the KDF Act before moving to court.
But in his ruling, Justice Marete found that the matter could not simply be handled by the Defence tribunal on the grounds of jurisdiction as it constituted the violation of a citizen’s constitutional rights.
He also ruled that if the dispute were to be handled by the Defence council, the trial would be unfair as the government has been uncooperative all through the suit’s proceedings.
“This court has on various occasions implored upon the parties to negotiate and reconcile on the issues at hand but the respondents have rebuffed such attempts,” the judge said.
The Defence ministry, he said, also failed to prove how Mr Mugure violated the dispute resolution channels by moving to court.
He found that Mr Mugure did not move to court prematurely as Section 159 of the KDF Act includes courts as avenues for seeking redress for army officers.
Besides seeking to have his salary reinstated, the former soldier also wants the court to quash the decision of his base commander to sack him.
He argues that the disciplinary committee tried him before the charges that he illegally accommodated his family on the base were properly investigated or a report made about them.
Mr Mugure claims that he had sought permission from the chairman of the mess to be allowed to accommodate his family before they went missing.
He adds that he was involved in a road accident while on duty and this led to a permanent disability in his left ankle.
He wants to be paid special and general damages that he claims he incurred as a result of the accident.
