Defence PS Patrick Mariru risks jail term for failing to pay injured soldier dues
Defence Principal Secretary Patrick Mariru when he appeared before the National Assembly’s Public Petitions Committee at Parliament Buildings on March 14.
Principal Secretary for Defence Patrick Mariru risks being jailed for contempt of court over the delayed payment of Sh23 million to a former Kenya Army soldier who was injured 34 years ago.
This comes after the Court of Appeal dismissed an appeal by the Attorney General seeking to overturn a 2017 ruling that found the PS, Ministry of Defence guilty of contempt of court and ordered him to appear before Justice Roselyne Aburili for sentencing.
Justices Kibaya Laibuta, Abida Ali-Aroni and John Mativo dismissed the appeal, saying the issues raised by the Attorney General had been dealt with by another bench in 2022.
"Finally, by bringing this appeal on the same ground that was raised, considered and decided by this court in the previous appeal between the same parties on the same issues, the appellants are ingenuously indirectly inviting this court to hear an appeal against its own decision," the judges said.
Mr Ochanda, who worked in the Artillery Department at Embakasi Barracks, was injured in 1987 and suffered severe spinal cord injuries that left him bedridden. Mr Ochanda was injured while training for the Kenyan wrestling team for the 1987 All-Africa Games. He was dismissed on 13 April 1995 on medical grounds.
He sued the State in 1996, seeking compensation for medical expenses, future medical expenses, general and special damages and damages for breach of duty of care, as well as dismissal and benefits from the Medical Assessment Board.
It was not until 15 years later, in March 2011, that Justice Kalpana Rawal (then a High Court judge) awarded him Sh7.5 million.
The government appealed and the matter was sent back to the High Court for a fresh hearing, at the end of which Mr Ochanda was again awarded Sh19 million plus the costs of the case.
After failing to pay him, Mr Ochanda sought to have the PS in the Ministry cited for contempt of court.
In 2017, Justice Aburili observed that Mr Ochanda had been reduced to a pious seeker and beggar in the judicial process for over 20 years.
The judge ruled that his human dignity had been abused by the refusal to pay his compensation. "I take judicial notice of the fact that the treatment of a paraplegic is costly in the absence of medical insurance for the majority of Kenyans," the judge said.
The judge went on to find the office holder and the Principal Secretary, Ministry of Defence, guilty of contempt of court.
The court then summoned the PS for a hearing before imposing the sentence, but the Attorney General approached the Court of Appeal to challenge the decision.
In the appeal, Attorney General Justin Muturi argued that under Section 21 (4) of the Government Proceedings Act, no government official should be held personally liable for money owed by the government.
Mr Muturi said the Act protects and insulates the government from any form of execution or attachment of its property, assets, funds or personnel in or during the execution of any judgment, decree or other order of the court against it or any other person.
In addition, the court heard that it was not plausible to single out the PS for contempt, given that government funds are provided by the treasury after a detailed process involving many people.
The Attorney General also faulted the judge for failing to recognise that the law on contempt requires personal service.
"Article 48 guarantees the right of access to justice. However, this right is not absolute. In exceptional cases, courts will draw the line. They will close their doors. Courts have the inherent right and power to prevent abuse of their processes and to protect their integrity," the judges said.
