https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8811

Mungai & another v Cabinet Secretary for Ministry of Defence & another (Constitutional Petition E570 of 2026) [2026] KEHC 8811 (KLR) (Constitutional and Human Rights) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8811 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E570 of 2026 RE Aburili, J June 23, 2026 Between Henry Kamau Mungai 1st Petitioner Lt. Joseph Mungai Kariha 2nd Petitioner and The Cabinet Secretary For Ministry Of Defence 1st Respondent The Attorney General 2nd Respondent Ruling 1.Vide their joint amended petition dated 26th November, 2025, the petitioners plead that they were employees of the then Kenya Airforce earning salaries of Kshs. 1,900 only. That during the August 1982 attempted coup, the petitioners were arrested and sentenced to serve five years imprisonment without being heard. That they were prosecuted by the outlawed 82 Airforce and that the petitioners’ services were unlawfully terminated by the illegal 82 Airforce. 2.That the 82 Airforce failed to constitute a proper court Martial which would have accorded the petitioners justice and fairness. It is averred that following the arrest of the petitioners, they were held in several police stations and prisons including Kitengela prisons, Naivasha maximum prison where they were tortured and held without any proper orders from any known court. That they were kept in waterlogged cells for one full week with torture and naked. 3.The petitioners pray for general damages for compensation for torture and unlawful imprisonment under inhuman conditions by the state agents and the said 82 Airforce. 4.They also pray that the termination of their services by the illegal entity known as 82 Airforce is therefore null and void. 5.Whereas on the face of it, the petition appears to be a constitutional petition, the petition is poorly drawn, mixing private law causes such as false imprisonment, assault, battery and or malicious prosecution. The constitutional rights that are alleged to have been violated are not pleaded with specificity with no linking of the right to the specific constitutional provisions. 6.The remedies sought are also mixed with those remedies which only the Employment and Labour Relations Court can grant, such as declaration that the termination of the petitioner’s employment was illegal. The other remedies of false imprisonment can be handled by the court exercising civil jurisdiction. 7.Additionally, as the alleged torture and detention is directly connected to the employment relationship between the petitioners and their employer the Kenya Airforce which also allegedly illegally terminated their employment without according them a hearing, and as the alleged torture and detention arose directly from an employment disciplinary process of punishing the petitioners for alleged indiscipline by attempting to overthrow the democratically elected Government, I am of the view that the dominant issue is that of Employment and Labour Relations. This is so because whereas this court would have jurisdiction over claims of alleged torture and unlawful detention, this claim is against the petitioner’s employer and is accompanied by the claim for unlawful termination of employment which arises from the employment relationship. 8.In the premises, I am persuaded that the petition is wrongly filed in this court. It ought to have been filed before the Employment and Labour Relations Court. 9.The petitioner’s advocates, however, need to go back to the drawing board and redraft the petition properly. Simple drafting is encouraged but, in this case, the petition as earlier stated, is haphazardly drafted. mixing up the remedies which only the employment and Labour Relations Court can grant and those which only the High Court can grant, with other remedies falling within the civil jurisdiction of the court. 10.As this court is expressly barred by Article 165 (5) (b) of the Constitution from hearing and determining any dispute involving Employment and Labour Relations, the appropriate order to be made by this court is to transfer the petition to the Employment and Labour Relations Court for further directions and consideration. 11.From this end, this file is closed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JUNE 2026R.E. ABURILIJUDGE