Court Gavel
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A soldier from the Kenya Defence Force (KDF) who was fired for allegedly burning a spy on hot coals has emerged victorious in a long and drawn-out court battle against his employer.
The spy had illegally entered a heavily guarded KDF military base. The court has ordered the KDF to compensate him with a sum of Sh5 million. Douglas Wawire Mulekano is said to have subjected the spy to torture at the Sangailu camp in Garissa County. This camp is located in an area where numerous KDF officers have been injured or killed by Improvised Explosive Devices (IEDs) planted by enemy forces associated with the Al Shabaab terror group, destroying valuable assets worth millions of shillings.
Justice Jemimah Keli from Bungoma acknowledged that the rights of the officer, who has participated in multiple peacekeeping missions in Sudan and Somalia, were disregarded to expedite the process of holding the officers involved in the spy's torture accountable, as stated in a letter from Brigadier Mohamed Nur Hassan. The judge also observed that the quick resolution of Mulekano's case deprived him of the opportunity to challenge the evidence against him or present his own defence. Senior Private Edgar Mwore and Senior Private Patrick Murithi were the individuals involved, according to the Judge.
The Officer Commanding (OC) did not follow instructions and proceeded to document the case as 'heard', as per the Judge's statement. This incident took place on the morning of July 18, 2019. It was revealed in court that the OC heard the case and then passed it on to Colonel Rotich, a higher-ranking official, for further instructions. The Judge noted that it was peculiar that the record presented to Colonel Rotich in the afternoon, when Mulekano was remanded for a decision rather than a trial, had been modified to indicate that Mulekano had stated he did not wish to call witnesses.
The Judge concluded that this was an attempt by Colonel Rotich to rectify the mistake of not providing witnesses during the hearing before the OC. As a result of this breach, the court ruled that Mulekano should receive compensation of Sh 5 million for his wrongful dismissal and violation of his right to a fair trial. Additionally, the court ordered that the discharged soldier, who still had six years remaining until retirement, should receive his terminal benefits, which the Force had initially decided to deny him. The Judge emphasized that Mulekano had served for 29 years, only to face an unfair hearing in his old age.
The judge referred to the case of Maurice Otieno Oduor v Attorney General (2019) eKLR and concluded that the refusal to provide Mulekano with his pension earnings, which he had earned over a period of 29 years, was a breach of his right to dignity in old age. Additionally, the defence forces were found to be engaging in discriminatory practices when compared to other government employees. The court ordered the Attorney General to take the necessary steps to ensure that Mulekano received his pension promptly.
As ordered by the judge, the unfairly dismissed soldier will have the expenses he incurred to file and litigate the case covered by the KDF. Mulekano initiated the case on June 29, 2020, intending to have the dismissal revoked or to alternatively stop the termination from affecting his terminal benefit. He was accused of violating good order and discipline, as stated in Section 121 of the KDF Act, 2012. According to the details on his charge sheet, on June 30, 2019, between 18:30 hrs and 20:00 hrs, at Sangailu Defence Camp, he actively took part in the torture of Isse Abdi by "burning and beating him while inside the prisoner's trench," an action he either knew or should have known was a crime.