The Court of Appeal has awarded a former Kenya Defence Forces (KDF) soldier KSh 8 million after ruling that his dismissal and imprisonment were unlawful and unconstitutional.
The soldier, who had served in the KDF for ten years, was dismissed in 2012 after he failed to report for duty on a Saturday, which he observes as the Sabbath. Court documents reveal that he had requested permission to be excused on May 31, 2012, to attend Sabbath worship, but his supervisor denied the request. This was the first time in his decade-long service that such a request had been refused.
The refusal led to disciplinary action, resulting in the soldier being imprisoned for 42 days before the military dismissed him on the grounds that his services were no longer required.
Following his dismissal, the soldier filed a constitutional petition with the Employment and Labour Relations Court (ELRC), arguing that his rights had been violated.
Justice Pauline Nyamweya ruled in his favor, stating that the dismissal and imprisonment were unconstitutional and unlawful. She further held that preventing the soldier from observing his Sabbath violated his right to religious freedom.
The court awarded KSh 5 million for the violation of religious rights, KSh 3 million in exemplary damages for unlawful imprisonment, and 12 months’ salary for wrongful termination, with interest accruing from the date of the ELRC judgment, in addition to covering the legal costs.
The Chief of Defence Forces, the Defence CS, and the Attorney General had appealed the ELRC decision, arguing that the soldier’s absence constituted insubordination, not religious persecution. They emphasized that military discipline and uniformity are critical and claimed that granting religious exemptions could compromise operational readiness. They also cited Section 255 of the KDF Act, which allows discharge if services are no longer required.
However, the Court of Appeal upheld the earlier ruling, affirming that respect for religious rights and constitutional protections must prevail, even within disciplined institutions like the military.
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