The Kenya Defence Forces has suffered another setback in its attempt to challenge a Sh25 million compensation award to a former soldier at the Supreme Court, after the Court of Appeal rejected its request to pursue a further appeal.
The case stems from disciplinary proceedings taken against Moses Etyang during his employment in the military. The dispute later moved to court, where the legality of the disciplinary process and the treatment he received became central issues.
The Court of Appeal in Kakamega dismissed an application by the Chief of Kenya Defence Forces and the Attorney-General, ruling that they had failed to demonstrate that the dispute raised issues of general public importance warranting the Supreme Court’s intervention.
The decision, delivered on October 23, 2026, means the two applicants cannot proceed with their intended appeal through the certification route they had sought.
In a judgment delivered on July 31, 2025, the Court of Appeal partially allowed the military’s earlier appeal, reducing the damages awarded to Mr Etyang by the High Court from Sh30 million to Sh25 million.
Still dissatisfied with that decision, the Chief of Kenya Defence Forces and the Attorney-General sought permission to take the matter to the Supreme Court, arguing that it raised important legal and constitutional questions whose answers could affect other proceedings.
But a three-judge bench comprising Justices Pauline Nyamweya, Ali-Aroni and Rachel Ngetich said the applicants had not shown that their dispute went beyond the circumstances of the former soldier’s case.
“The mere formulation of constitutional or legal questions does not, without more, elevate a dispute to one of general public importance,” the judges ruled.
They said the applicants needed to demonstrate that resolving the questions would have a wider impact on the public interest, rather than merely settle disagreements arising from the employment dispute.
The judges also rejected the argument that the case required the Supreme Court to clarify uncertainty in the law.
“The fact that the applicants disagree with this Court’s interpretation or application of the law does not, by itself, establish uncertainty in the law,” the court said.
In their application dated February 13, 2026, the military and the Attorney-General argued that the intended appeal raised issues extending beyond Mr Etyang’s individual circumstances.
Among the questions they wanted the Supreme Court to address was whether an accused person must undergo a mental assessment before criminal or quasi-criminal proceedings are conducted.
They also sought clarification on whether the Constitution requires every accused person to have legal representation in criminal or quasi-criminal proceedings, and whether a mental health condition diagnosed after a hearing can invalidate the proceedings.
Another issue concerned whether summary disciplinary proceedings conducted under the Kenya Defence Forces Act could amount to torture, slavery or servitude in violation of the Constitution.
The applicants argued that authoritative guidance from the Supreme Court would promote consistency in the interpretation of the law and help guide past, ongoing and future proceedings.
Their lawyer also questioned the Court of Appeal’s description of the military’s summary disciplinary process as a “kangaroo court”.
The applicants maintained that the relevant provisions of the Kenya Defence Forces Act and the Criminal Procedure Code did not expressly require a pre-hearing mental assessment or full legal representation by a trained advocate in every summary disciplinary proceeding.
They further argued that a diagnosis of mental illness did not automatically establish that a person was incapable of participating in proceedings or lacked the legal capacity to conduct a case.
The judges, however, found that raising these questions was not enough to secure a hearing before the Supreme Court.
“Although the applicants have framed several questions touching on mental illness, legal representation, and the conduct of disciplinary proceedings,” the court said, they had not sufficiently demonstrated how resolving them would have an impact beyond the dispute before them.
The judges noted that the case arose directly from Mr Etyang’s employment in the military and the disciplinary action taken against him.
They were therefore not persuaded that the involvement of a public institution, or the reference to constitutional provisions, automatically made the matter one of general public importance.
Mr Etyang opposed the application through an affidavit filed by his father, Julius Etyang, who was described in the court papers as his primary caregiver.
The father said his son suffers from a severe intellectual disability and an autism-spectrum condition, and that he had been formally registered as a person with a disability.
He attributed the condition to injuries sustained during his son’s military service in Somalia under Amisom III.
The Kenya Defence Forces will remain in Somalia despite the end of the African Union Mission in Somalia.
Photo credit: File | Nation Media Group
The father argued that the dispute concerned the military’s failure to follow the requirements of sections 151 and 152 of the Kenya Defence Forces Act when handling the disciplinary proceedings.
He maintained that the case did not raise a new legal question requiring the Supreme Court’s intervention.
According to the affidavit, the litigation had continued since 2021, leaving his son facing emotional distress, anxiety and psychological instability while being unable to enjoy the benefit of the court judgment.
The father argued that the applicants were attempting to reopen issues that had already been considered by the courts, rather than identify a genuine uncertainty in the law.
He urged the Court of Appeal to end the dispute, saying that continued litigation had imposed further psychological and financial strain on his son.
Mr Etyang’s lawyer also argued that the case arose from a specific employment relationship and that the questions raised by the applicants did not meet the constitutional threshold for taking an appeal to the Supreme Court.
The judges said an applicant must show that the issue has significance beyond the parties involved and that, where uncertainty in the law is alleged, there must be evidence of conflicting legal principles or decisions requiring clarification.
They found that the Chief of Kenya Defence Forces and the Attorney-General had not identified a specific inconsistency in the law that needed to be resolved by the Supreme Court.
Having found that the application did not meet the required standard, the judges dismissed the motion dated February 13, 2026, and ordered the applicants to pay the costs to Mr Etyang.
