Court awards Sh8 million to soldier dismissed for observing Sabbath

Yesterday was Sunday, a day when billions of Christians flock to churches for worship. For those who observe the Sabbath, their holy day begins at sunset on Friday and ends at sunset on Saturday.

But between time with God and duty to work, what takes precedence?

This question lay at the centre of a case that began within Kenya’s military barracks.

Polycarp Miyogo, a Seventh-day Adventist, was detained for 42 days as punishment and later dismissed from service for allegedly defying orders to work on the Sabbath.

His superiors insisted he served in a critical institution and should have known that he could be called upon at any time to serve the nation. Miyogo, however, maintained that his employer was fully aware of his religious obligation and that nothing, short of a national emergency such as war, would compel him to work on his day of worship.

He argued that even in the gravest circumstances, his service would still constitute worship, as commanded by Scripture.

After years of litigation, Miyogo won his case before the Employment and Labour Relations Court, and later at the Court of Appeal, against the Attorney General, the Defence Cabinet Secretary, and the Chief of Defence Forces.

In a majority decision, the court awarded him Sh5 million for violation of his right to worship, Sh3 million for unlawful detention, and a further 12 months’ salary as compensation.

Justices Pauline Nyamweya and Daniel Musinga ruled that Miyogo’s dismissal was unlawful. They found that allowing him to worship would not have disadvantaged his colleagues and that there was no evidence suggesting that members of the disciplined forces are generally denied the right to worship.

The two judges warned that “a blanket refusal and non-recognition of the right to worship would open perilous avenues for harassment and victimisation for those who choose God before work.”

Justice Nyamweya, writing the majority judgment, observed:

“If rights can be overridden simply on the basis that it would serve the benefits of the majority and general welfare, then the constitutional entrenchment of the rights would serve minimal purpose.”

However, Justice Asike Makhandia disagreed. He argued that Miyogo’s decision to join the military required him to recognise that some personal rights, including the right to worship, were not absolute.

According to him, the military’s demand that Miyogo respect working hours neither discriminated against him nor coerced him to abandon his beliefs.

Justice Makhandia observed:

“Article 8 of the Constitution provides clearly that: ‘There shall be no State religion.’ The import of the provision is that no religion shall have prevalence over any other, and no particular one should be seen as the one each citizen is obligated to be an adherent, including the observance of a day of worship.”

Miyogo joined the Kenya Defence Forces (KDF) in 2002. For a decade, his commanders reportedly allowed him to observe the Sabbath whenever duty fell on that day, on condition that he would report in case of an emergency.

However, on May 31, 2012, when he requested permission to be absent from duty for Sabbath worship, his supervisor declined. It was the first time such a request had been rejected.

Miyogo pleaded for a half-day, then negotiated for a two-hour worship session between 9 a.m. and 11 a.m. — both requests were denied. His pleas were again rejected on 13 June 2012. When he chose to attend worship instead of duty, disciplinary action followed, resulting in 42 days’ detention and eventual dismissal.

He argued that KDF’s actions violated his constitutional right to worship, noting there was no valid reason to deny him a single day of rest and prayer.

The Defence Cabinet Secretary and Chief of Defence Forces countered that Miyogo’s stance was misguided and that his refusal to work on the Sabbath showed stubbornness incompatible with military discipline.

Through the Attorney General, they argued that Muslims work on Fridays and most Christians on Sundays, hence Seventh-day Adventists could not claim superior accommodation. They further stated that military service demands obedience and the surrender of certain freedoms, including religious observance when duty calls.

The Attorney General added: “It cannot be gainsaid that national security interests override individual interests and may justify the restriction of rights and freedom.”

At the Labour Court, Justice Nduma Nderi found in Miyogo’s favour, ruling that there was no justification for denying him his right to worship.

On appeal, Justices Nyamweya and Musinga reaffirmed the decision, terming the denial of worship “outright unfair.” They noted that international best practices require defence forces to accommodate religious beliefs, subject to operational needs, national security, public safety, and public health.

They observed that if KDF had accommodated Miyogo’s worship for ten years, “one more Saturday off work for church would do no harm.”

The judges held that the State had failed to prove that Miyogo’s duties could not have been delegated to another serviceman during his period of worship.

“In this case the burden shifted to the appellants to show that there were no other servicemen available to step in for the respondent during his period of worship and that it was not possible to permit him a limited period within which to exercise his freedom, even if not the usual period of worship,” Justice Nyamweya wrote.

“Consequently, the effect of the appellants’ decision was not only a limitation of the respondent’s right to worship but denial of the same, and the Constitution and Defence Forces Act in this respect contemplate a limitation rather than a denial of the right.”

The judges also rejected the argument that military discipline required near-absolute authority, noting that modern practice encourages accommodation to foster “instinctive obedience, unity, commitment and esprit de corps.”

They emphasised that the right to worship is recognised internationally and that any restrictions must be legally justified, necessary, and proportionate.

Justice Nyamweya further observed: “In addition, in countries where the right to freedom of religion or belief exists for each individual and is guaranteed, difficulties may arise when attempting to accommodate diverse and, perhaps, conflicting religious practices, such as in the provision of prayer, space, or time off for holy days.”

The ruling underscores a delicate balance between faith and duty. While Justice Makhandia cautioned against elevating any religion above others, the majority held that faith and service can coexist — provided the State upholds fairness, proportionality, and respect for individual conscience.

For Polycarp Miyogo, the judgment is more than compensation; it is an affirmation that even within the rigid hierarchy of military life, one’s relationship with God deserves recognition and respect.