Reprieve for ex-soldier as State bid to appeal Sh10mn award
9 months ago, 18 Dec 11:59
The Attorney General has lost his bid to file an appeal against a judgement in which a former military officer was awarded Sh9.9 million by the Labour court after his application to extend his term at the Kenya Defence Forces (KDF) was approved then withdrawn without explanation. Justice Agnes Murgor rejected the State's application seeking to be allowed to file an appeal two years after the judgement was issued. The government wanted the Notice of Appeal dated March 24, 2017 against Richard Nchapi Leiyagu be deemed as filed and served within the required period of 14 days. However, Justice Murgor said the Attorney General’s application for extension of time is not merited as she dismissed it. “As a consequence, I am not satisfied that the delay during the intervening period or the final period have been adequately explained by either the applicant or the Defence Forces. The parties are guilty of laches, and I am therefore disinclined to exercise my discretion to extend time to file the intended appeal,” said the judge Monday. She added that no material was placed before the court to explain ‘the remarkably lengthy delay of two years’. 'Unfair practices' The Ministry of Defence was on June 10, 2015 directed by Justice Nzioki wa Makau, of Nairobi Employment and Labour Relations court, to compensate the former army officer for unfair labour practices. Justice Makau found that Mr Leiyagu was offered an early retirement after the KDF altered his records, a move the judge declared as a gross violation of his constitutional rights to fair labour practice. Justice Makau also declared that Mr Leiyagu suffered some degree and deserved compensation. “The abrupt withdrawal of the Petitioner’s service extension was in blatant disregard of the rules of natural justice. Mr Leiyagu who was a public officer should not have been removed from office without due process of law,” said Justice Makau. Mr Leiyagu, 54, joined the Armed Forces in 1985 as an Officer Cadet and was promoted through the ranks to a Lieutenant Colonel in 2006. The court heard that according to the terms and conditions of service of the Kenya Armed Forces, a Lieutenant Colonel is meant to retire at 49 years of age with a two-year extension to 51 years. He explained that he applied for the extension and the same was approved and confirmed in writing by the military command but was later withdrawn without affording him a hearing or giving him an explanation. He told the court that due to the withdrawal, he was deprived of the opportunity to serve for a further two years. “He was not advised when the Respondent proceeded to irregularly alter the grant of extension by forging documents on his file to suggest that the Commander had not granted the extension nor was he called to a disciplinary hearing to ascertain the manner and reason for the alteration of his records which the Respondent stated was irregularly done,” said Justice Makau.
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