Government loses bid to stop Sh9 million compensation

The Attorney General has lost bid to file an appeal against a judgement in which a former military officer was awarded Sh9.9 million by Labour Court for been forced to leave Kenya Defence Forces (KDF).

Justice Agnes Murgor of the Industrial Court has rejected the State application seeking to be allowed to file an appeal after two years since the judgement was issued.

The State 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.

DELAY

However, Justice Murgor said the Attorney General’s application for extension of time is not merited as she dismissed it.

“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.

She added that no material was placed before the court to explain ‘the remarkably lengthy delay of two years’.

On the State’s submission that the intended appeal had high chances of success, Justice Murgor said she was not persuaded on the issue and there was no certainty.

She said the former army officer would be placed in a position of extreme prejudice because of the inordinate and unexplained delay in lodging the intended appeal.

The judge noted that Mr Leiyagu had already obtained orders to compel the Defence Forces pay the decretal sums of Sh9.9 million together with interest and costs.

“Having taken all the requisite factors into account, I have come to the conclusion that the application for extension of time is not merited. I decline to exercise my discretion to allow the application,” said Lady Justice Murgor.

UNFAIR

The Ministry of Defence was in 2015 directed by Justice Nzioki wa Makau, of the 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 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.