Principal Secretary for Defence Patrick Mariru has been summoned by the High Court in Nairobi for sentencing over disobedience of an order to pay ten former Air Force soldiers Sh134 million.
The amount is compensation for violation of the soldiers' rights and dismissal from military service over the failed 1982 coup.
Justice John Chigiti said the reasons advanced by the PS to justify the none settlement of the soldiers "are not tenable in the eyes of any democratic front".
The former soldiers were awarded the damages by the High more than 11 years ago and later in 2018 obtained orders compelling the Defence Ministry to effect the payments.
Explaining the delays, PS Mariru told the judge that he was constrained by the financial austerity measures in the Government and that there was no allocation from Parliament to settle the outstanding claim of Sh134,748,152.
But Justice Chigiti said, "Austerity measures cannot amount to any justice if they yield no fruits to a decree holders like the former soldiers".
In the ruling dated February 13, 2024, the judge cited PS Mariru for contempt of court for disobeying and defying the judgment, decree and order given by the High Court on March 16, 2018.
The judge subsequently summoned the PS to personally appear before the court for mitigation and sentencing on April 29, 2025, in open court at 11AM.
Efforts by the PS, through the Attorney-General, to fight the soldiers' bid to have him cited in contempt proved futile after the court declined his arguments.
The ex-soldiers want him committed to prison for a period of six months or fined out of his own personal money or punished in any other lawful manner that the court will deem fit and appropriate.
The PS contended that the sum of money claimed by the ex-soldiers is a colossal amount that must be factored in the Ministry's budget before any payment is authorized.
He added that the Ministry of Defence has not received any allocation to settle the current claim due to the current austerity measures taken by the government and that he can only be accountable for what the ministry is allocated.
Since there was no allocation from Parliament to settle the outstanding claim, he explained that it would be manifestly unjust for the court to hold him in contempt of court when he neither controls or determines the Government funding.
But Justice Chigiti said the arguments could not come to the aid of the PS and that it amounted to a conduct that defies the authority or dignity of a court.
"It is unfortunate that this is a very old decree which has remained unsettled. The fair administrative action dictates that closure of such cases must take place within a reasonable time. A delay as in the instant suit cannot be said to be one that is reasonable in the eyes of any reasonable person and the same amounts to a denial of justice," said the judge.
Stating that the disobedience of the court order was not willful, PS Mariru told the judge that it was beyond his control as the Ministry of Defence had not received any exchequer disbursement to settle the decree.
The ten soldiers - David Gitau, Shaban Mwadosho, Johana Kisorio, Hassan Mohammed, Daniel Koi, Khamisi Mwamgute, Peter Mungai, Jacob Mwaliko, Alfred Mwathethe and Graham Wambaa -were officers serving at the Kenya Air Force at the time of the attempted coup on August 1, 1982.
They were awarded the damages through a judgment dated November 1, 2013, for violation of their fundamental rights by their colleagues in the Kenya Army.
They were awarded Sh5.5 million each plus interest at court rates from the date of judgment until payment in full. The decretal sum has over time increased to Sh134.7 million.
They were all arrested by officers of the Kenya Army on suspicion of participating in the failed coup on the mere account of their being officers of the Kenya Air Force.
They filed the petition in 2012 claiming that in the cause and immediately after their arrests, they were subjected to untold torture, cruel, inhuman and degrading treatment.
In particular, they alleged that they were stripped naked in public, were made to walk on their knees on concrete floors, whipped, kicked around, bludgeoned all over their bodies and moved into custody in military trucks whilst naked and in full view of the public.
They said this in violation of their rights as to human dignity, protection of the law and freedom from cruel, inhuman and degrading treatment.
