The Court of Appeal has dismissed an attempt by the Ministry of Defence and the Attorney General to stop the payment of Sh1 million awarded to a former Kenya Army soldier who was unlawfully dismissed from the military nearly two decades ago.
A three-judge bench comprising Justices Wanjiru Karanja, Kathurima M’Inoti, and Lydia Achode ruled that the government had failed to demonstrate that its intended appeal would be rendered nugatory if the stay order it sought was not granted.
The Defence Cabinet Secretary, who also chairs the Defence Council, and the Attorney General had moved to the appellate court seeking to suspend the execution of a judgment delivered on January 31, 2025, by Justice Rika of the Employment and Labour Relations Court (ELRC).
The high court had declared the dismissal of Hassan Aden Osman from the Kenya Defence Forces (KDF) unlawful and awarded him sh1 million as general damages.
According to court documents, Osman enlisted in the Kenya Army in 1988, serving as a Military Driver Class II and later participating in United Nations peacekeeping missions in Yugoslavia and Sierra Leone.
However, in 2006, he was charged before his commanding officer with stealing a bicycle belonging to a colleague, convicted, sentenced to 42 days imprisonment, and dismissed from service.
Osman later challenged the decision in the ELRC, arguing that he had been denied a fair hearing and that his pension and benefits had been unlawfully withheld.
Justice Rika found that his dismissal was unlawful and awarded him damages, however he declined to reinstate him to service.
The Defence Ministry and the Attorney General, dissatisfied with the ruling, filed a notice of appeal and sought to halt payment of the award pending determination of their appeal.
They argued that the ELRC had relied on illegally obtained documents and that the case had been filed out of time.
But in their ruling, the appellate judges said the government’s arguments were misplaced and that the pending appeal related only to an earlier ruling on the admissibility of evidence, not the main judgment.
“Once the ELRC heard and determined the respondent’s claim, the application for stay of proceedings became moot,” the judges said.
They further ruled that the government had not demonstrated that Osman was incapable of refunding the award if the appeal eventually succeeded.
“Without such assertion and an opportunity for the respondent to respond, the Court cannot assume that the respondent is incapable of refunding the money,” the bench held.
The judges concluded that the Defence Ministry had failed to meet the requirements for the grant of stay under Rule 5(2)(b) of the Court of Appeal Rules and dismissed the application.
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