Soldier could get millions for unfair sacking

The landmark ruling by the High Court could lead to a floodgate of other suits, according to the Military Veterans Association.

In addition to being compensated for the sacking, Lt-Col Benjamin Muema would be paid for missing out on promotions he might have got up to the rank of a Major-General, had his military career not been cut short.

The payment is for damages for the loss in career advancement to which the plaintiff was subjected by the defendants' "acts in contravention of the protective statutes of law".

The ruling was made by Justice J.B. Ojwang' in the case in which Lt-Col Muema sued the attorney-general, Major General Humphrey Njoroge and the commissioner of police for illegally sacking him and subjecting him to malicious prosecutions.

Mr Justice Ojwang' said: "I hereby declare the plaintiff's removal from his employment in the Armed Forces was unlawful, null and void."

He also termed several prosecutions lodged unsuccessfully by the police against Lt-Col Muema as violations of the provisions of the law and "actuated by malice".

The AG entered a nolle prosequi in three of the criminal cases brought against the plaintiff, one was withdrawn by the police and he was acquitted in the other three after giving uncontroverted evidence.

Lt-Col Muema was awarded a total of Sh800,000 in damages for false arrest, illegal confinement and malicious prosecution.

The judge further instructed the commissioner of police to restore to the plaintiff his two motor vehicles which were detained, and for the unlawful detention of the cars, the Lt Col was awarded a further Sh600,000 as damages.

The court ordered the defendants to bear the plaintiff's cost in the suit and any application necessary for the purpose of fulfilling the decree shall be made before a judge in chambers, in Civilian Division.

At the time of the occurrences leading to the suit, the plaintiff was engaged in instructional duties at the Defence Staff College at Karen.

The Lt-Col had in his suit pleaded that allegations he was involved in criminal activity were brought against him by officers from the police and he was handed over to be charged in a civil court in 1993. He said that in this way, the "defendants took leave of the applicable military law and presumed to order him to resign his commission in military service".

He had said that this occurred after the defence staff college commandant, the second defendant, sought to have him sign a resignation letter on the grounds that the plaintiff "was involved in criminal activity and that such activity would soil the good name of government".

Military officers, who commit civil crimes, are supposed to be tried in a court martial and if the offence is treason or murder, are sentenced to death. But in any other case, they are liable to any punishment which a civil court could award for a civil offence committed in Kenya.

The judge concurred that the right procedure was not followed by the commanding officer, Major-General Njoroge who, he said, "acted on allegation, handed over the plaintiff to the police and facilitated the physical and institutional removal of the plaintiff from his position as a commissioned officer in the Armed Forces".

Lt-Col Muema was paid a lump sum of Sh400,000 as benefit at the time he was retired and has been earning Sh7,000 monthly. These earnings will be deducted from the payment to be made as damages for the loss in career advancement.

After the ruling yesterday, Lt-Col Muema told the Nation that he had undergone a lot of suffering during the 13 years he was out of work.

"I had to survive on the Sh7,000 with children to educate and so many criminal charges being brought against me," said Lt-Col Muema, who was accompanied by nine members of the Military Veterans Association.

And in a signed statement, the chairman of the association, Major Henry Mwitaria, termed the decree by the court a "historic judgment".

In the statement he claimed that the damages would run into millions; "the court concurred with the colonel's prayers.....awarded him damages estimated at over Sh250 million".

He said there were many more officers who were suffering under similar conditions.

Maj Mwitaria blamed the legal officers at the Department of Defence for misleading the State in cases that involve wrongful dismissal like the case of Lt-Col Muema.