Government ordered to pay two army officers Sh60m for wrongful dismissal

Two senior military officers whose jobs were terminated unlawfully have a reason to smile after the High Court directed the government to pay them their terminal benefits amounting to Sh60 million.

The government's bid to block the payment awarded on November 18, 2014 suffered a major setback when the court this week found the termination of Major-General (rtd) Enoch Sasia and Lieutenant-Colonel (rtd) Barnabas Rono was illegal.

The court ruled that Maj-Gen Sasia and Lt-Col Rono were forced to resign before attaining the retirement age after they were accused of neglecting duties and disobedience.

The genesis of the case is a contract that existed between the government and the Union Logistics company dated March 8, 2008 for the provision of packaging and international freight forwarding services to the Department of Defence.

According to the contract, the Kenya Air Force (KAF), within the command of the Kenya Defence Forces (KDF), instructed Union Logistics to ferry spare parts to Nairobi from Jordan and the United States.

The court heard that Union Logistics transported the parts and KAF prepared the necessary documents to facilitate payment.

INFLATED FIGURES

On receiving the bills for payment, a chief of logistics pointed out disparities in the documents indicating a possibility of inflated figures.

Maj-Gen Sasia ordered further verification before any payment was made.

The court heard that the documents went through a routine process and finally payment was made on June 29, 2010, since the 2009/2010 financial year was fast closing.

“It would later be discovered that the payment to Union Logistics was an overpayment in excess of Sh32 million,” the court was told.

An internal audit was commissioned over the alleged over-payments.

An audit report dated August 2010 was prepared by the chief of audit for the Chief of the General Staff and indicated that the over-billing and subsequent overpayment was authored by Union Logistics.

OFFICERS EXONERATED

The audit report exonerated the two army officers and gave them a clean bill of health and even commended Maj-Gen Sasia for attempting to straighten the process.

Maj-Gen Sasia was charged with two counts of an act to the prejudice of good order and service discipline, neglecting to perform a duty and two counts of disobedience to standing orders.

Lt-Col Rono was charged with neglecting to perform a duty contrary to section 19 of the armed Forces Act.

The court heard that the charges against the two officers were preceded by investigations but they were not aware of any such probe.

“They did not record any statement as the people investigating them all along did not grant them the opportunity to explain their side of the story hence they were condemned unheard," the court was told.

While testifying, Maj-Gen Sasia said upon learning of the charges, he confronted his boss, who was the Chief of the General Staff, as to why he was being investigated without being given a chance to defend himself.

But he was told that he would be informed when necessary.

RESIGN
On November 12, 2010, he was summoned and told that he had a case to answer and directed to resign from the forces instead of facing a protracted case.

“Facing the possibility of a court martial, which would be convened by the very person who had a predetermined mindset that the claimant was guilty and should resign, a jail term under an unlawful process, he was forced to resign on November 16, 2010 against his will,” the court heard.

In his witness statement, Lt-Col Rono said he was taken to his superiors at the KDF barracks in Embakasi and was informed that a decision had been made for him to resign from the forces.

The court was told that he was given a pen and a paper to draft his resignation, which he signed on November 16, 2010.

This, he said, was meant to show that he had resigned voluntarily but this was not the case.

The court found the termination of the two officers was unlawful as they had been forced to resign, and awarded them damages.

Maj-Gen Sasia was awarded Sh40 million while Lt-Col Rono got Sh20 million.

The Attorney-General applied to set aside the judgment, but Justice Monica Mbaru dismissed the application and allowed the ruling to stand on May 25.