LABOUR LAW

GPR 318

UNIVERSITY OF NAIROBI

SCHOOL OF LAW

GROUP 11

NAME REGISTRATION SIGNATURE

NUMBER

JUMA FLORA KENDI G34/83430/2017

KITUR GIDEON KIBET G34/85966/2017

IRUNGU WENDY WANGARI G34/83469/2017

LANGAT CHEPKEMOI CARREN G34/83507/2017

KAGGIA FAITH NJOKI G34/83508/2017

OYENG’ CHARLES OMONDI G34/83511/2017

JAMES ODHIAMBO G34/83512/2017

MORANGA TABITHA KERUBO G34/86039/2017

MWENDO JASCA MUENI G34/86106/2017

MUTULA DENIS G34/86467/2017

1
 1. Applicable laws in this case

The applicable laws in this matter should, in our view, be the Kenya Defence Forces (KDF) Act
2012, regardless of whether the case is made on behalf of Imara Daima or the Defence Forces
and recourse should also be had to the Bill of Rights as enshrined in the constitution. To begin
with, Article 32 of the Constitution of Kenya espouses the right of every person to the freedom
of conscience, religion, thought, belief and opinion. This is consistent with the provisions
contained in international instruments to which Kenya is a party including, inter alia, the
Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights
and the African Charter on Human and People’s Rights. Article 25 of the Constitution is also
relevant as it sets outs the rights and freedoms that cannot be limited and the right to the freedom
of religion and conscience is not included meaning that it is not absolute. However, the limitation
of this freedom has to meet the criteria set out in Article 24 of the constitution. Article 27 of the
constitution is also relevant as it delineates the right of every person to equal protection and
benefit of the law. Further, Article 41(1) also guarantees every person to fair labour practices.

The KDF Act is the statute that applies to members of the armed forces as Section 3(2) of the
Employment Act excludes members of the armed forces from the provisions in the Act. Section
4 of the Kenya Defence Forces Act lists persons to whom the act applies which includes among
others members of the regular forces and any officer or service member whether of the regular
reserve or who is in training.

Further, Section 42 of the KDF Act stipulates that:

“All persons subject to this Act shall enjoy all rights and fundamental freedoms
enshrined under Chapter Four of the Constitution unless limited to the extent specified in
Article 24(5) of the Constitution, this Act or any other Act.”1

Section 44 of the KDF Act is also relevant as it limits the “freedom of conscience, religion,
thought belief, and opinion if the act of limitation is reasonably done in the interests of defence,

1
KDF ACT 2012

2
security, public safety, public order, public morality, or public health or for good order and
discipline within the Defence Forces.”2

These provisions are relevant because they inform our perception of the issues that arise from the
facts of this case. They delineate the rights of the aggrieved party as well as the powers of the
party thought to have wronged the other. This legal framework is the scale on which we will
weigh the actions of Imara Daima and KDF in order for us to make an informed decision on the
case at hand.

2. Arguments in support of Imara’s position as an employee in the military

To support Imara’s stand of refusing to participate in the training that involved the use of guns
because of his conscience and religious beliefs, it is first and foremost important to address the
question of whether Imara is an employee in the KDF. A critical analysis of the Kenya Defence
forces Act vis-à-vis the common law tests for employment offer insight as to Imara’s status.

 The control test

This test heavily borrows from the dynamics of the master-servant relationships as evidenced in
Yewens v Noakes3 and its main focus is on how much control the employer has over the worker.
The more control one has over another’s work, then the more likelihood of the latter being an
employee of the former. The employer has the right to control what must be done and the method
by which the work should be done. In Ochieng v Amalgamated Saw Mills ltd 4, it was held that
to determine whether one is an employee or not, the extent of control of the work that is being
done ought to be considered. In Short J& W Henderson Ltd5, Lord Thankkerton stated that there
are four indicators of a contract of service. These are;

 The power of the master to select the servant

 The payment of wages or any other remuneration

 Instructions to the worker regarding when, where and how the work is to be done

2
Ibid
3
(1881) 6 QBD 530
4
(2005) 1 KLR
5
(1946) 62 T.L.R

3
  The power of the master to suspend or dismiss the servant

The KDF act is instrumental in highlighting the existence of the above factors in Imara’s case.
The KDF has exclusive control on the recruitment process. Section 28 of Kenya Defense Forces
act gives the Defence Council a mandate to come up with a criterion for recruitment. In Kenya,
this criterion has been categorized by several requirements such as education qualifications. The
KDF also has powers to dismiss its members from the service as evidenced in Robert
Nyambariga v Republic6 where the appellant was dismissed from the service without any
benefits upon conviction by the court martial. It is evident that the KDF exercises a substantial
amount of control on its members and using the control test, there is an employment relationship
between Imara and the Kenya Defence Forces.

 The mutuality of obligations test

This test focuses on the terms of the individual hiring and attempts to establish if there is an
irreducible minimum of personal service. The essential conditions that must exist under this test
for employee status to exist are;

 An employer is obliged to offer work to an individual

 That individual is required to perform the work offered

Under the KDF Act, there is an irreducible minimum expectation of a member of the defence
forces to be present and available at work. This governed by sections 74 and 75of the Act that
make it an offence to desert the defence forces or be absent without leave. In Christopher Katitu
v Republic7, the appellant had been convicted for 6 months for the offence of being absent
without leave while on operation maliza ugaidi in Garissa. In Imara’s case, the work provided is
training and he is obligated to perform that training. He cannot leave the training camp despite
his opposition to the methods used in training as he would be deemed a deserter and jailed. This
clearly elaborates the mutuality of obligation between Imara and the KDF, confirming his
position as an employee of KDF.

6
(2020) eKLR
7
(2018) eKLR

4
Taking into consideration all the factors in Imara’s case and using the common law tests for
establishing employee status, then in this case, Imara was an employee of the military. Having
come to that conclusion, the next step involves supporting his position not to take part in the
General Service Operations Cadet Training. Article 32(1) of the Constitution of Kenya
guarantees every person the right to the freedom of conscience, religion, thought, belief and
opinion. This right is also guaranteed by international instruments such as the ICCPR 8 and the
ACHPR9 which apply by virtue of Articles 2(5) and 2(6) of the Constitution of Kenya. Article
27(3) states that “a person shall not be denied access to employment because of the person’s
belief or religion.” 10Subsection 4 states further that “a person shall not be compelled to engage
in any act that is contrary to the person’s belief or religion.” 11 This right is not absolute because
of the provisions of Article 25 of the constitution but its limitations are subject to Article 24 of
the constitution. Section 44 of the KDF Act, imposes a limitation to this freedom of conscience
and belief but only “if the limitation is in the interests of defence, security, public safety, public
order or is for the purpose of protecting the rights and freedoms of other persons or is for good
order and discipline in the Defence Forces.” 12 Imara, before being a medic and part of the
military, is first and foremost a person meaning that the right contained in Article 32 of the
Constitution of Kenya applies to him as well. Based on the entirety of this Article, Imara’s
position to refuse to attend the training because of his religious beliefs and conscience is
justified. Compelling him to do the same would amount to a blatant disregard of the provisions
of this Article. Although this right is limited by the same constitution and the KDF Act, the
limitation is also subject to some requirements. In this case, the issue is to weigh the
consequences of the limitation of this right and the purposes that the limitation seeks to achieve
which according to the KDF Act include protecting the rights and freedoms of other persons and
in the interests of defence, security and for good order and discipline. In Imara’s case, his
decision not to take part in the training was also informed by the oath he took as a medic which
includes the obligation to preserve lives. Limiting this right of freedom of conscience and belief
by requiring to take part in the training would lead to him breaking the oath he took as a medic
which when weighed against the purposes that the limitation seeks to achieve appears excessive.
8
Article 18
9
Article 8
10
Constitution of Kenya 2010
11
Ibid
12
KDF Act 2012

5
Articles 16 and 10 of the Additional Protocols to the Geneva Convention state that “under no
circumstance shall any person be punished for carrying out medical activities compatible with
medical ethics, regardless of the person benefiting therefrom.” 13 Rule 26 of the Customary
International Humanitarian Law provides that “punishing a person for performing medical duties
compatible with medical ethics or compelling a person engaged in medical activities to perform
acts contrary to medical ethics is prohibited.”14 Seeing that this is rule has achieved international
customary law status, and to which no reservation has been made, then it also applies in Kenya
and the KDF cannot justify the disregard of this Rule by relying on the provisions of the KDF
Act.

Article 27(5) of the Constitution states that a person shall not discriminate directly or indirectly
against another person based on among other grounds religion, conscience and belief. This right
is also protected under various instruments such as the ACHPR.15 Imara succeeded in all other
aspects of his training and the reason for his supposed dismissal is based solely on the fact that
he refused to take part in one part of the training because of his religious beliefs, conscience and
the oath he took as a medic.

Section 46 of the Employment Act lists reasons that do not constitute fair causes for dismissal
and one such reason is an employee’s religion or affiliation. The Employment Act however, by
virtue of section 3 does not apply to the armed forces but this does not mean that Imara has no
standing when it comes to claiming unfair dismissal. In Lieutenant Colonel Lulale Moses Sand
v Kenya Defence Forces & another16 it was held that that although the Employment Act
excludes the application of the Act to the defence forces, the right to terminate the employment
of the claimant had to be subjected to fair labour practices and the right to protection from
dismissal. In Nasibo Dabaso Jillo v Commander Kenya Army and another 17it was held that the
manner of discharge of the applicant from the armed forces was gross and unfair. Seeing that
Imara had excelled in all other aspects of his training, the decision to dismiss him because of
being the wrong fit for the disciplined service would amount to unfair dismissal and Imara would
have a claim therein.
13
Additional Protocols to the Geneva Convention
14
ICRC, Customary IHL Database, <ihl-databases.icrc.org> accessed 27th March
15
Article 2
16
(2018) eKLR
17
(2015) eKLR

6
 3. Arguments in support of KDF’s position

Lawful Limitation of Rights

The Constitution of Kenya, which is the supreme law of the land, provides under Article 24 for
the limitation of fundamental rights including labour relations with respect to persons working
with the Defence Forces.18 Despite the provision in Article 32 which prohibits the denial of
employment or access to any institution because of your set of beliefs or religion, the KDF Act in
Section 44 introduces a limitation, in exercise of powers under Article 24 which allow legislation
of Acts which limit the application of certain rights to members of the KDF. The limitation to the
freedom of conscience and belief is for the purposes of protecting the interests of the public such
as security, safety, health and order. Imara Daima’s freedom of conscience and beliefs is
therefore limited by these provisions.

Section 43(2) of the KDF Act provides for the limitation of rights and fundamental freedoms for
the purposes of ensuring: “the protection of the sovereignty and territorial integrity of the
Republic of Kenya and its classified information; the preservation of national security; the safety
of members of the Defence Forces; good order and service discipline as well as for public health
and safety.”19 The Act further expounds on the limitation of the right to freedom of conscience,
religion, thought, belief and opinion, by stating that an act that is done in the interests of defence
security, public safety, public order, public morality or public health; or for the good order and
discipline in the Defence Forces does not contravene the provisions of Article 32 of the
Constitution of Kenya. The impetus of this provision is that where a right operates against the
objectives of the disciplined forces, there is no reason why a member of the disciplined forces
should be allowed to enjoy such a right.

Duty of Obedience

The oath of allegiance for members of the Defence Forces requires them to obey all laws, and all
other orders, regulations, directions and instructions concerning the Kenya Defence Forces. In

18
Constitution of Kenya 2010, Art 24(5).
19
KDF Act 2012

7
Laws v London Chronicle20, it was held that if the disobedience is of such a nature as to
repudiate the contract, then the same would be enough to warrant dismissal. Disobedience of
particular orders is considered an offence under section 78 of the Kenya Defence Forces Act.
Where a person shows willful defiance or neglect of authority and is convicted, the sentence is a
term not exceeding five years for those on active service, and a term not exceeding two years in
any other case. Failure to perform military duties also attracts an imprisonment term not
exceeding two years. Any person who commits any act or neglect to the prejudice of good order
and service discipline commits an offence, and the sentence for such an offence is an
imprisonment term not exceeding two years as stipulated under Article 121 of the Act. Similarly,
in Patrick Muasya v Kenya Wildlife Service 21 it was held that wilful disobedience of lawful
orders results to a breach of contract. It can be argued that Imara Daima acted in breach of legal
duty and that the actions of the KDF were valid.

Implied duty of capacity and competence

In Harmer v Cornelius22 it was sated that when a skilled labourer or artist is employed, there is
an implied warranty on his part that he is reasonably skilled for the task that he chooses to
undertake. KDF is classified as a security organ by Article 239 of the Constitution and the
primary function of security organs is to promote and guarantee national security. To be able to
defend the nation, then members of the KDF are required to participate in training so as to be
able to fight using guns and other weapons. Having the capacity to fight and hence defend the
country is a crucial part of the KDF because without this, then the KDF wouldn’t be able to
achieve its primary function as set out in the constitution. Imara’s refusal to participate in the
part of the training involving guns fails to conform to the primary objective of the KDF thus the
KDF would be justified in dismissing him.

Public Interest

Matters of public morality, public health and national security, inter alia, are matters of public
interest and in which public interest overrides private interest. 23 By extension of public interest

20
(1959) 1 WLR 698 CA
21
(2011) eKLR.
22
(1858) 5 CBNS
23
Ben Sihanya (2013) “Public Participation and Public Interest Litigation under the Kenyan Constitution” Law
Society of Kenya Journal page 1-32, at 30.

8
and safety, it is important that members of the KDF undergo adequate training in order to ensure
they are able to discharge their duties effectively. In the case of Brian Asin & 2 others v Wafula
Chebukati & 9 others the court was keen to state the need to be careful not to allow unnecessary
litigations on grounds of public interest by setting high standards of determination as to what
amounts to a public interest that overrides private interests.24 It is in the protection of the interest
of the national security that members of the Defence Forces are required to train its employers
and adequately equip them with combat skills. The KDF Act in its guiding principles states the
need for the Defence Forces to train recruits and ensure the highest form of discipline,
competence and professionalism.25

4. Reforms to share with the Office of the Attorney General

In view of the discourse up to this point, this paper makes the following reform proposals to the
office of the Attorney General regarding the observation and protection of this right.

Amendment of the Kenya Defence Forces Act

Section 42 and 44 of the Kenya Defence Forces Act should be amended to allow personnel
within the Defence Forces to have a right of conscientious objection to actions which do not
conform to their conscience, religion and belief. Conscientious objection refers the refusal to
participate in the armed forces because of religious beliefs, morality or political ideology. Not
only do these provisions validate infringement of certain rights of members of the KDF, but they
also inflict discrimination against persons who hold these beliefs. Article 27 of the constitution
“prohibits discrimination on the basis of race, sex, pregnancy, marital status, health status, ethnic
or social origin, colour, age, disability, religion conscience, belief, culture, dress, language or
birth.”26 The current provisions, as worded, are not only an affront to the right of military persons
to the freedom of conscience, religion, thought, belief and opinion but promote discrimination
against those who ascribe to beliefs which may oppose certain actions undertaken by Defence
Forces.

24
Asin & 2Others v Wafula W. Chebukati & 9 Others [2017] eKLR.
25
Kenya Defence Force Act, 2012, s 3(a) (d).
26
KDF Act 2012

9
 It is therefore proposed that these provisions should not be interpreted in a manner that promotes
discrimination of persons based on any grounds. In the case of Westerman v The Netherlands27,
the United Nations Human Rights Committee delineated the need to accord military personnel
the right to object to certain acts which did not agree with their beliefs. Ultimately, introduction
of this right in Kenya will provide a firm ground for equal treatment of persons within the
military.

In Dixon v Hallmark Cosa,”28 the court held the utterances by the respondent to a Christian
employee constituted direct evidence of discrimination sufficient to suffice summary judgment.

In Gregory Gitije Mberia v The AG & 4 others 29, it was held that service men are not be
regarded as being on contracts of service and that the KDF Act provided an almost complete
code on the terms and conditions for members in the armed forces. This being the case, then the
KDF Act should have provisions that are favourable to members of the armed forces.

Amendment of the Employment Act

Section 3 of the Employment Act should be amended in order to allow KDF members to enjoy
some of the rights espoused in the Employment Act. The Employment Act should be made
applicable in part to officers in the Kenya Defence Forces. This will make it possible for the
officers to enjoy protection of fundamental rights and freedoms like all other employees. Such
rights as favourable working conditions, right to paid leave, inter alia, as provided in the
Employment Act should be enjoyed by KDF officers. It is important that their rights are provided
for and protected by the law. Allowing the Employment Act to apply to soldiers is to allow them
to unionize, to picket or to strike. In a state machinery whose success depends on sheer strength,
allowing an army to split or be compromised by disgruntled workers, legitimately or not, is to
weaken the entire Kenyan territory.30 It would compromise national security. It would therefore
be inimical to the interests of the country to allow KDF personnel to be subject to some of the
provisions of the Employment Act.
27
Paul Westerman v. The Netherlands, Communication No. 682/1996, U.N. Doc. CCPR/C/67/D/682/1996 (1999)
28
627 F.3d 849 (11th Cir, 2010).
29
(2019) eKLR
30
Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel (2008) Organization for
Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR):
http://www.osce.org/odihr/31393<accessed 26th March>

10
The very act of joining a disciplined force entails more than just ‘employment’. It also entails
sacrifice and risk, the magnitude of which isn’t comparable to any normal job. A solider foregoes
or allows a number of his rights to be limited, including his right to privacy, freedom of
association and freedom of expression. This being said, members of the armed forces ought to be
accorded more protection and should also not be regarded as being merely employees.

Conclusion

Human dignity, human rights and social justice are just but a few foundations that underlie the
subject of labour law. The realization of human dignity, equality and equity for all persons
coupled with the need to recognize and respect human rights ought to be the major
considerations in al labour relations. The right to freedom of conscience, religion, thought, belief
and opinion is an extension of the values and principles espoused under Article 10 of the
Constitution of Kenya. While there is need to maintain a perfect balance between the protection
of this right and the abuse of this freedom in propagating social vices, the government must be
careful and ensure it does not interfere with individual autonomy and self-development. The
limitation of a person’s right to religion, conscience and belief will inevitably lead to
psychological dysfunction of such persons, and woefully so where the values they embody
promote general human dignity. In employer-employee relations, excess limitations of
fundamental rights and freedoms will definitely need to the increase in the power imbalance that
already exists therein. Ultimately, the integrity and human dignity of the person must be
protected.

11