Defence PS wanted for not paying ex-soldiers Sh42m court award

Defence Principal Secretary Patrick Mariru has defied a court order to pay former Kenya Air Force soldiers Sh42 million.

Mr Mariru has failed to effect an order directing his ministry to pay 10 former soldiers the damages for unlawful detention and torture after the failed 1982 coup.

On July 31, 2024, Justice John Chigiti directed the Military Police to execute a warrant of arrest, but this is yet to happen. “The warrants shall be executed by the officer in charge at Military Police Department of Defence (DOD) Hurlingham,” he ruled.

Gladys Nyachiro, a court officer, said when she took the warrant to the Military Police at DOD, the officers in charge said they were not authorised to receive any court orders and directed her to the legal office.

“The following day, I proceeded to DOD where I met the officers on duty who also told me they are not capable of receiving the warrant of arrest of Mr Patrick Mariru which was addressed to the Officer in Charge, Military Police, DOD Hurlingham,” she says in her affidavit.

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She she was forced to send the warrant of arrest through EMS directly to the officer in Charge, Military Police, DOD Hurlingham. The ex-soldiers are Gerald Juma Gichohi, Humphrey Kalama, Peter Mwangi, James Gitai, David Gikuyu, and Francis Ngure. Others are Lawrence Kiarie, John Thairu, Placide Mwakisachi and Obadiah Maza.

They sued the PS last year, arguing they had not received the money, despite it being part of the 2021/2022 supplementary budget. “This sum was in fact factored in the Supplementary and Appropriation Act, 2022, and disbursed to your ministry,” they said through their lawyer Mbugua Mureithi.

In 2015, the ex-soldiers were awarded Sh21 million by Supreme Court Judge Isaac Lenaola (then at the High Court). The award was to accrue 12 per cent interest annually, and by October 26, 2023, the amount had risen to Sh42 million.

Justice Lenaola ruled that the 10 men deserved compensation for the inhumane treatment they endured following an attempt by military officers to overthrow the government.

The soldiers were arrested between August 1 and August 4, 1982, for allegedly participating in the failed coup. Their arrests were based solely on their affiliation with the Kenya Air Force. They were subjected to arbitrary arrest and unlawful, incommunicado detention without trial.

They described the torture, cruel, inhuman, and degrading treatment they suffered between August 1, 1982, and March 1983. They recounted how Kenya Army and Prison officers stripped them naked in public, forced them to walk on concrete floors on their knees, and subjected them to whipping, kicking and taunting.

The judge ruled they were entitled to payment since it had been established they played no role in the coup attempt. In an affidavit filed on August 16, 2018, Defence PS Saitoti Torome stated that the ministry did not have the funds to pay the former soldiers and needed an allocation from the National Assembly. 

He argued that the ministry could only be held accountable for what it had received and was yet to receive the funds necessary to settle the claim. However, the former soldiers, through Peter Mwangi’s affidavit, contended that the ministry was aware of the proceedings, as it had participated in the taxation process.

Opposing the Attorney General’s application, Mureithi pointed out that the AG had not explained why it took more than three years to appeal. Justice Hannah Okwengu noted that the AG had not provided an explanation and that the AG had participated in the proceedings by filing written submissions in February 2017 and an affidavit in August 2018, showing that they were indeed aware of the judgment but deliberately took no action.

After the appeal failed, the ex-soldiers filed another case at the High Court seeking to compel the ministry to pay them. Mureithi stated that he had served the Attorney General and the Ministry of Defence with the certificate order and a request for payment.