CS Tuya loses bid to stop Sh1m award to a soldier she sacked

Defence Cabinet Secretary Soipan Tuya had filed an appeal at the apex court to reverse the Sh1 million the soldier was awarded by the lower courts for wrongful dismissal in 2006. [File, Standard]

A soldier unlawfully sacked for allegedly stealing his boss's bicycle has won a case against Defence Cabinet Secretary Soipan Tuya at the Supreme Court.

The CS had filed an appeal at the apex court to reverse the Sh1 million the soldier was awarded by the lower courts for wrongful dismissal in 2006 over alleged theft. 

Tuya, who chairs the Defence Council, filed for a stay of the award given to Hassan Osman on January 31, 2025, by the Employment and Labour Relations Court (ELRC).

Justices Wanjiru Karanja, Kathurima M’inoti and Ludia Achode upheld Justice James Rika’s verdict that determined Osman’s conviction, imprisonment and dismissal from service unlawful.

The appellate judges said that the CS and Attorney General failed to demonstrate that Osman will be unable to refund the award by ELRC and that the appeal will be rendered nugatory.

“Having failed to satisfy both considerations under rule 5(2)(b) of the Court of Appeal Rules, this application has no merit and is hereby dismissed,” said Justice Karanja.

The appellate judges said that the application for stay of proceedings, which the CS and AG lay emphasis upon, became moot the moment the ELRC concluded the proceedings and rendered its judgement.

According to court records, Osman was enlisted in the Kenya Army on April 28, 1988, and served until he attained the ranks of SPR and Military Driver Class II.

During his time in the Defence Forces, he was selected to serve in the United Nations Peacekeeping Missions in the Former Yugoslavia and Sierra Leone.

On March 22, 2006, Osman was charged before his commanding officer with the offence of conduct prejudicial to good order and service discipline contrary to section 68 of the Armed Forces Act Cap 199 Laws of Kenya (repealed).

The charge was based on allegations that he had stolen a bicycle belonging to a Corporal Boniface Muriithi on February 15, 2006.

Osman was convicted, sentenced to 42 days’ imprisonment, and dismissed from service.

Aggrieved, Osman filed an appeal before the ELRC on January 16, 2014, and cited violation of his right to a fair hearing under section 77(2) of the former Constitution.

Osman said that the commanding officer lacked jurisdiction to try the offence with which he was charged.

He also said he lost his pension without the concurrence of the Public Service Commission as required by section 113(a) of the former Constitution.

Osman applied for restatement, award of his pension and gratuity, payment of salary arrears with effect from the date of dismissal and damages for unlawful imprisonment, unlawful dismissal, loss of promotion, lost earnings and injured reputation, and costs.

On March 15, 2024, Justice Rika dismissed an application by CS Tuya and AG seeking to stop Osman from producing his certificate of service and certificate of discharge, together with his service testimonials showing the military courses he had undertaken and a summary of the charges he was accused of.

Justice Rika said the documents in question were merely part of Osman’s service records and that the originals of those documents were in the possession and custody of the CS, who had not denied their authenticity or offered to produce the originals.

The CS and AG appealed and said that the illegally obtained evidence denied them the right to a fair hearing, contrary to Article 50 of the Constitution.

Justice Rika, in his verdict, said that the CS and AG appeared to have gone to slumber, for neither the application nor the appeal has been heard and determined to date.