KDF soldier sacked for 'burning a spy' awarded Sh5m

Justice Jemimah Keli noted that the speed at which Mulekano's case was heard and determined denied him the opportunity to challenge the evidence against him, or even the right to mitigate. [File, Standard]

A Kenya Defence Force (KDF) soldier who was sacked on allegations that he burnt a spy who trespassed in a highly guarded KDF military base on hot coal has won a protracted four-year court battle against his employer who has been ordered to pay him Sh5 million.

Douglas Wawire Mulekano is said to have tortured the spy at the Garissa county-based Sangailu camp, around where tens of KDF officers and assets worth millions of shillings had been torn to pieces by Improvised Explosive Devices (IEDs) planted by enemy forces linked to the Al Shabaab terror group.

Justice Jemimah Keli of Bungoma noted the rights of the officer who has been in numerous peacekeeping missions including in Sudan and Somalia were sacrificed for expediency and compliance with the orders from a letter tabled in court from Brigadier, Mohamed Nur Hassan to speed the process of bringing to book officers involved in the torture of the spy, Isse Abdi Maalim.

She equally noted that the speed at which Mulekano's case was heard and determined denied him the opportunity to challenge the evidence against him, or even the right to mitigate.

"Mulekano specifically stated he wished witnesses listed in the charge sheet to be brought, the witnesses were Senior Private Edgar Mwore and Senior Private Patrick Murithi. The Officer Commanding (OC) did not comply and proceeded to record 'case heard'," said the Judge.

This was on the morning of July 18, 2019, when the court heard that the OC heard the case and forwarded it to his senior one Colonel Rotich for further orders.

"Strangely the record before the colonel in the afternoon when Mulekano was remanded for award, not trial, was changed to indicate he said he did not wish to call witnesses. The court finds this was an attempt by the colonel to correct the mistake of failing to avail witnesses at the hearing before the OC," said Judge Keli.

She said due to the breach, Mulekano should be awarded Sh 5 million for the unlawful dismissal and violation of the right to fair trial.

She also directed that the sacked soldier who had some six years left to retire be handed his terminal dues that the Force had decided to deny him.

"Mulekano served for 29 years only to be caught up with an issue in his old age for which the court found there was no fair hearing. The Court upholds the decision of Justice Nduma in Maurice Otieno Oduor v Attorney General (2019) eKLR and declares that the denial of Mulekano's pension dues accumulated over 29 years of service was a violation of the right to dignity in old age and a discriminative practice by the defense forces in comparison with other civil servants. The Attorney General is directed to initiate and complete relevant processes to allow the payment of his pension," she said.

The KDF will also foot the cost the soldier who was unfairly sacked incurred to file and litigate the case as ordered by the judge.

Mulekano filed the case on June 29, 2020, seeking among other things the revocation of the sacking and subsequent reinstatement or in the alternative an order that the termination be without loss of his terminal benefit.

He had been charged with prejudice of good order and discipline contrary to Section 121 of the KDF Act, 2012.

His charge sheet particulars read that at Sangailu Defence Camp on 30 June 30, 2019, between 18:30 hrs and 20:00 hrs, he actively participated in the torture of Isse Abdi by "burning and beating him while inside the prisoner's trench" an act he knew or ought to have known to constitute an offence."