Soldier loses bid for damages as court dismisses reason for 125 days’ leave claim

A soldier who went absent without official leave for 125 days after engaging Al-Shaabab terrorists in Somalia has lost a bid to be paid damages for what he termed unlawful dismissal.

The Labour court in Kisumu said Kennedy Nunda Okoth, who was sacked on April 13, 2017, had a weak claim to warrant him the unspecified damages award he sought. “He admitted that he did not resume duty after end of his leave because he suffered post-war trauma and that he was under treatment at Kisumu District Hospital for three months,” said judge Stephen Radido.

“He filed a single document to support the contention that he fell ill and was treated - a Ministry of Health card from Kisumu District Hospital dated January 5, 2016. The date appears altered,” said Justice Radido, adding that alteration and other misgivings in Mr Okoth’s petition made it lack merit “and it is dismissed with costs.”

Okoth petitioned the court on January 20, 2021, saying he was unfairly dismissed after giving his all to the military career, which had occasioned him mental illness. He sued the chief of Kenya Defence Forces (KDF), the KDF council and the attorney general, alleging his trial and discharge violated rights to fair administrative action, human dignity, freedom of association, fair labour practices and fair hearing.

“The KDF trial tribunal that fired me was not properly constituted. I was not given notice of my hearing and the reasons for my sacking were not valid,” he said in his court papers.

He also contended that when he returned to work he was hauled in detention for eight months, which exceeded the mandated eight days, as per Section 140 (2) of the KDF Act.

His employer, however, justified the delayed detention saying it was occasioned by lengthy investigations of his absence and did not amount to a miscarriage of justice. The employer said it subsequently filed a report to explain the delay as contemplated by Sections 54(3) and 140(2) of the same Act, adding that Okoth was a flight risk suspect.

To deny Okoth’s argument that he suffered mental health, the employer said he was examined at the Defence Forces Hospital, which found that Okoth did not suffer from the post-war trauma by the time he returned to the barracks.

The report done by his employer, however, did not say whether he suffered the devastating medical condition during his prolonged absence.

Okoth’s troubles began in 2015 after a regular deployment in Somalia for peacekeeping. When he returned home in the same year in November he sought 28 days annual leave. He applied for another 10-days leave, and was granted.

He did not report back, and when his employer called he sought another 14 days and was granted. He still did not resume duty on January 7, 2016, after the period expired, prompting his employer to raise an alert.