Polycarp Miyogo, a former Kenya Defence Forces (KDF) officer and a devout Seventh-day Adventist, has been awarded Ksh8 million by the Court of Appeal following his unlawful discharge and subsequent imprisonment.
Miyogo, a devout Seventh-day Adventist, served for 10 years and was dismissed in 2012 after repeatedly failing to report for duty on Saturdays, his day of religious observance.
“On 31st May 2012, when he (Polycarp) sought permission to be absent from duty to worship on the Sabbath day, his immediate supervisor declined to grant permission for the first time in his ten years of service,” read part of the court judgement.
Following disciplinary proceedings, he was imprisoned for 42 days and later discharged from service on the grounds that his services were “no longer required.”
Petition and Trial Court Decision
Following his discharge, Miyogo filed a constitutional petition at the Employment and Labour Relations Court (ELRC), citing violations of his fundamental rights.
He argued that his termination and imprisonment infringed his rights under:
- Article 32 – Freedom of religion and worship
- Article 27 – Equality and non-discrimination
- Article 47 – Fair administrative action
The ELRC ruled in Miyogo’s favour, declaring his discharge and imprisonment unconstitutional and unlawful.
“The refusal to permit him to worship on Saturdays in the circumstances of this appeal infringed the respondent’s right to religious belief and worship under Article 32 of the Constitution,” Justice P. Nyamweya, JA ruled.
The court awarded him Ksh5 million for violation of religious rights, Ksh3 million in exemplary damages for unlawful imprisonment, 12 months’ salary for unlawful termination, and pension and gratuity as an ordinary retiree.
Appeal by the Attorney General, Cabinet Secretary for Defence, and Chief of Defence Forces
The government, through the Attorney General, the Cabinet Secretary for Defence, and the Chief of Defence Forces, appealed the ruling.
They argued that Miyogo’s refusal to report for duty on Saturdays amounted to insubordination rather than religious persecution.
Appellants further contended that military discipline is essential for operational readiness and that accommodating individual religious practices could undermine unit cohesion.
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They also cited Section 255 of the Kenya Defence Forces Act, which allows discharge if services are “no longer required,” and highlighted that Miyogo had not completed the 12 years required for pension eligibility.
Court of Appeal Decision
The Court of Appeal, in a majority judgment, upheld the ELRC’s ruling.
The court found that the right to worship under Article 32 cannot be limited for military personnel under Article 24(5) without compelling justification.
It held that the denial of Miyogo’s worship was unconstitutional and that his discharge and imprisonment were illegal and disproportionate.
“The discharge and imprisonment of Miyogo were found to be illegal and disproportionate, as the military failed to demonstrate any operational or national security necessity. While damages and salary compensation were upheld, the pension claim was set aside due to Miyogo’s incomplete service period,” the judges ruled.
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Failing to demonstrate any operational or national security reason to justify its actions, the court ruled on the awards for damages and salary but set aside the pension claim due to Miyogo’s incomplete service period.
Final Orders
The Court of Appeal issued the following orders:
- Declaration that Miyogo’s discharge was unconstitutional
- Declaration that his imprisonment and penalties were illegal
- Ksh5 million awarded for violation of religious rights
- Ksh3 million awarded as exemplary damages for unlawful imprisonment
- 12 months’ salary for unlawful termination
- Pension award set aside
- Interest in damages from the date of the ELRC judgment
- Costs awarded to Miyogo
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