{UAH} General Dr Miguna Miguna dealt another Judicial blow

Ex-soldiers lose case seeking payment for '82 coup torture

MONDAY AUGUST 6 2018

     

Ex-Kenya Air Force servicemen display their discharge certificates. The Employment and Labour Relations Court has thrown out a petition by 62 former Kenya Air Force soldiers seeking compensation for torture they allegedly suffered following the 1982 attempted coup. PHOTO | FILE | NATION MEDIA GROUP 

In Summary

• The judge said he does not have jurisdiction to hear the case since it involves matters of violation of human rights.
• The former servicemen wanted the court to find that their fundamental rights were violated.
• The soldiers were arrested on August 1, 1982 at 2pm at the Eastleigh Air Base.

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The Employment and Labour Relations Court has thrown out a petition by 62 former Kenya Air Force soldiers seeking compensation for torture they allegedly suffered following the 1982 attempted coup.

Justice Nzioki Makau said he does not have jurisdiction to hear the case since it involves matters of violation of human rights and fundamental freedoms. He said such issues are reserved for the High Court.

"The Petitioners are clearly in the wrong forum as the reliefs they seek are entirely crafted under the range of reliefs the High Court offers. There is no iota of labour or employment rights infringed upon as far as the court can discern," said Justice Makau.

TIME BARRED

He added that even the citation of the title of the petition does not mention the Employment and Labour Relations Court anywhere.

The judge also observed that even if he was to hear the case, it is time barred.

He made the ruling after allowing a preliminary objection by the Attorney-General who urged the court to dismiss the case for contravening the Limitation of Actions Act.

"Limitation on labour matters is limited as provided under the Act and time runs from the date of dismissal, notwithstanding the prevailing circumstances and there is no room to enlarge or extend time," ruled Justice Makau.

While defending his decision, the judge explained that where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Thus, jurisdiction must be acquired before judgment is given.

FUNDAMENTAL RIGHTS

The former servicemen wanted the court to find that their fundamental rights were violated following eight months of incarceration at Kamiti and Naivasha maximum security prisons.

They indicated that they were illegally detained in the prisons without a valid warrant of detention from a competent State authority.

In the course of August 1982, the petition indicated, they were captured by Kenya Army personnel at Eastleigh Air Base on suspicion of participating in the attempted coup.

They were subjected to barbaric torture and cruel and degrading treatment by the army personnel including being robbed of their valuables and the molesting of their wives, they said.

In the 25-grounds petition, they claimed they were stripped naked in public, forced to crawl on a concrete surface, whipped, kicked with gun butts and bludgeoned all over their bodies.

ARRESTED

The soldiers were arrested on August 1, 1982 at 2pm at the Eastleigh Air Base.

They were ordered to raise their hands, put down their firearms, helmets and belts and board a waiting lorry after been stripped naked.

After the arrest, the soldiers said, they were detained at various military installations, police stations and prisons where they were locked up stark naked in dark waterlogged solitary cells.

They indicated that they were also subjected to beatings after interrogation.

The soldiers also state that they suffered loss and psychological and economic damages, saying their rights as employees of Kenya Air Force were brazenly contravened.

DENIED FOOD

"There was denial of food and drinking water, no bedding, no toilet facility. We were transferred to various stations across the country and not accorded legal representation of choice," they indicated in documents filed in court.

The ex-soldiers indicated that during the hearing of the case, they would have relied on international law instruments to which Kenya is a signatory.

They protest that they were denied fair trials at the Lang'ata court martial where they were charged with committing a criminal offence.

The soldiers also wanted compensation for illegal detention, dismissal from the service, ruining of their careers as well as terminal benefits.

     

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