Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedPetition 3 of 2016

Albert Chaurembo Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme)

Supreme Court of Kenya
8 November 2019
Philomena Mbete MwiluM. MwiluJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki Ndung'uIsaac LenaolaI. Lenaola
22,183 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~89 min to read original · ~4 min brief

The bottom line

#

Pensioner disputes go to the Retirement Benefits Authority, not the Employment Court, the Supreme Court rules.

What this practically means

#

The Supreme Court of Kenya decided that once a worker retires and becomes a pensioner, their relationship with the pension scheme is no longer that of employer and employee. Therefore, the Employment and Labour Relations Court cannot hear disputes between pensioners and trustees. Instead, the correct first step is to file a complaint with the Chief Executive Officer of the Retirement Benefits Authority, and only after that can you appeal to the Retirement Benefits Appeals Tribunal. Courts must follow this special process and cannot jump in early.

Executive summary

#
This was an appeal from the Court of Appeal's judgment affirming the Employment and Labour Relations Court's decision that the Trustees of the Kenya Ports Authority Pension Scheme had fraudulently and unlawfully amended the 1998 Trust Deed, reducing pension benefits without members' consent. The Supreme Court allowed the appeal, setting aside the Court of Appeal judgment and remitting the matter to the Chief Executive Officer of the Retirement Benefits Authority for adjudication under the Retirement Benefits Act. The central issue was which forum has original jurisdiction to hear disputes between pensioners and trustees of a pension scheme. The Court held that the Employment and Labour Relations Court has no jurisdiction because pensioners are not employees and trustees are not employers; the relationship is that of trustee and beneficiary. The High Court also lacks jurisdiction because the Retirement Benefits Act provides a specific dispute resolution mechanism. The Court held that section 46(1) of the RBA Act vests original jurisdiction in the CEO of the Retirement Benefits Authority, with appeals to the Retirement Benefits Appeals Tribunal. The Court rejected the 'optional jurisdiction' concept created by the Court of Appeal, holding that jurisdiction is conferred by law and cannot be optional. The Court also dismissed the respondents' cross-appeal on costs and interest, finding that it did not raise constitutional questions and that costs and interest are discretionary matters not appealable to the Supreme Court. The Court ordered no costs given the nature of the dispute involving pensioners and trustees.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Supreme Court's Jurisdiction over the dispute
  2. 2.Which is the forum with original jurisdiction in the first instance to hear and determine the dispute between Pensioners and the Trustees of a Pension Scheme
  3. 3.Whether in the circumstances of this case the appellants' constitutional right to a fair hearing was violated
  4. 4.Cross appeal
  5. 5.Reliefs to be awarded if any

Key legal issues

#
01

Which forum has original jurisdiction to hear disputes between pensioners and trustees of a pension scheme?

Holding

The Chief Executive Officer of the Retirement Benefits Authority has original jurisdiction under section 46(1) of the RBA Act, with appeals to the Retirement Benefits Appeals Tribunal. The Employment and Labour Relations Court has no jurisdiction because the relationship between pensioners and trustees is not an employer-employee relationship. The High Court also has no jurisdiction because the RBA Act provides a specific mechanism.

Reasoning

The Court analyzed the nature of the dispute, finding that once a member leaves employment and becomes a pensioner, the relationship is that of trustee and beneficiary, not employer-employee. The RBA Act establishes a comprehensive dispute resolution mechanism starting with the CEO and appeals to the Tribunal. The Court rejected the 'optional jurisdiction' concept created by the Court of Appeal, holding that jurisdiction is conferred by law and cannot be optional. The Court emphasized the exhaustion doctrine, requiring parties to follow the statutory mechanism before approaching superior courts.

p. 29
02

Whether the Employment and Labour Relations Court has jurisdiction over disputes between pensioners and trustees of a pension scheme?

Holding

The Employment and Labour Relations Court has no jurisdiction because pensioners are not employees and trustees are not employers within the meaning of the Employment and Labour Relations Court Act. The relationship is governed by the Retirement Benefits Act, Trustee Act, and the law of trusts.

Reasoning

The Court examined section 12(1) of the Employment and Labour Relations Court Act, which grants jurisdiction over disputes relating to or arising out of employment between an employer and an employee. The Court found that pensioners are not employees and trustees are not employers. The Court cited the Court of Appeal decision in Kenya Ports Authority v Industrial Court of Kenya & 2 others, which held that pension disputes are not trade disputes. The Court concluded that the ELRC had no jurisdiction to hear the dispute.

p. 35
03

Whether the appellants' constitutional rights to a fair hearing under Articles 47(1) and 50(1) were violated?

Holding

This ground of appeal failed because the issue of violation of fair hearing rights was not pleaded, litigated, or determined in the lower courts, and therefore could not be raised for the first time in the Supreme Court under Article 163(4)(a).

Reasoning

The Court reviewed the record and found no pleadings, evidence, submissions, or determination in the trial court or Court of Appeal on the issue of violation of fair hearing rights. The Court applied its precedent in Daniel Kimani Njihia v Francis Mwangi Kimani & another, which requires that a constitutional question must have been the subject of judicial determination in the lower courts for it to be appealable to the Supreme Court under Article 163(4)(a). The Court also noted that proceedings before a court without jurisdiction are a nullity, so no cause of action for violation of fair hearing rights could arise from such proceedings.

p. 38
04

Whether a cross-appeal can be maintained in the Supreme Court when it does not raise constitutional questions or matters of general public importance?

Holding

A cross-appeal must fall within the Supreme Court's jurisdiction under Article 163(4)(a) or (b). Where the main appeal is under Article 163(4)(a) and the cross-appeal raises issues of costs and interest that do not involve constitutional interpretation or application, and no certification under Article 163(4)(b) has been obtained, the cross-appeal must fail.

Reasoning

The Court distinguished between appeals as of right under Article 163(4)(a) and appeals by certification under Article 163(4)(b). The Court held that a cross-appeal must be within the same jurisdictional sphere as the main appeal. The cross-appeal on costs and interest did not raise constitutional questions and no certification had been sought or obtained. The Court also noted that the respondents failed to comply with Rule 38 of the Supreme Court Rules. The Court further held that awards of costs and interest are discretionary matters not ordinarily appealable to the Supreme Court.

p. 43

Legal principles established

#
  • Pensioners are not employees, so the Employment and Labour Relations Court has no jurisdiction over their disputes with trustees.
  • Original jurisdiction for pension disputes lies with the Chief Executive Officer of the Retirement Benefits Authority under section 46(1) of the Retirement Benefits Act.
  • The High Court cannot hear pension disputes directly because the Act provides a specific alternative dispute resolution mechanism.
  • Jurisdiction cannot be optional or created by the court based on the facts of a case; it must come from the Constitution or written law.
  • Parties must exhaust the administrative remedies under the Retirement Benefits Act before going to the superior courts.

Court orders

#
  1. 1.The Appeal dated March 25, 2016 is allowed
  2. 2.The Cross-Appeal dated 14th April 2016 is dismissed
  3. 3.The judgment of the Court of Appeal dated 26th February 2016 is set aside
  4. 4.We hereby remit the matter for adjudication by the Chief Executive Officer of the Retirement Benefits Authority under the attendant mechanism under the Retirement Benefits Act
  5. 5.There shall be no order as to costs considering the nature of the dispute as that involving members and Trustees of the Kenya Ports Authority Pension Scheme and the weighty points of law that arose in the hearing and determination of the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
M. MwiluDCJ
Currently serving
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki Ndung'uSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Malindi
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

#

Cross-appeal seeking variation of the Court of Appeal judgment on costs and interest

The cross-appeal did not raise constitutional questions or matters of general public importance properly before the Court, and the issues of costs and interest are discretionary matters not appealable to the Supreme Court under Article 163(4)(a).

p. 43

Costs

There shall be no order as to costs considering the nature of the dispute as that involving members and Trustees of the Kenya Ports Authority Pension Scheme and the weighty points of law that arose in the hearing and determination of the appeal.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

section 46 of the RBA Act therefore vests original jurisdiction upon the CEO; thus, the proper forum for the respondents to launch their case was to first write to the CEO then if dissatisfied with the decision of the CEO appeal to the Retirement Benefits Appeals Tribunal.
p. 29 Original jurisdiction under the Retirement Benefits Act
once a member leaves the employment of a Sponsor, by becoming a pensioner, there is no longer a relationship of employer-employee that exists between such a pensioner and the sponsor.
p. 35 Nature of relationship between pensioners and trustees
jurisdiction cannot be 'optional' unless such parallel avenues are provided with certain limitations by any written law
p. 26 Jurisdiction is not optional
There shall be no order as to costs considering the nature of the dispute as that involving members and Trustees of the Kenya Ports Authority Pension Scheme and the weighty points of law that arose in the hearing and determination of the appeal.
p. 45 Costs order
where there exists an alternative method of dispute resolution established by legislation, the courts must exercise restraint in exercising their Jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance.
p. 27 Exhaustion of administrative remedies
we conclude that the High Court whether under the repealed or new constitution does not have jurisdiction.
p. 37 High Court lacks jurisdiction over pension disputes

Key timeline

#
2016-02-26
Court of Appeal delivered its judgment on the pension dispute.
2016-03-25
Appeal filed at the Supreme Court by the Registered Trustees of the Kenya Ports Authority Pension Scheme.
2016-04-14
Cross-appeal filed by the pensioners responding to the appeal.
2019-10-10
Supreme Court allowed the appeal, set aside the Court of Appeal judgment, and remitted the dispute to the Retirement Benefits Authority CEO.

Practical implications

#
For lawyers

Pension disputes must start at RBA

When advising pensioners or trustees, immediately direct them to the Retirement Benefits Authority CEO under section 46(1) of the RBA Act. Do not file at the Employment and Labour Relations Court or High Court, as those courts lack original jurisdiction. This ruling reinforces the exhaustion doctrine and the strict statutory hierarchy. Prepare clients for a multi-step process: CEO, then Appeals Tribunal, and only after that, judicial review if needed.

For businesses

Trustees must use RBA process first

If you manage a pension scheme and a former employee disputes contributions or benefits, do not agree to litigate in the Employment Court. Insist that the matter be referred to the Retirement Benefits Authority CEO. The Supreme Court has made clear that the statutory mechanism must be exhausted. This will save costs and avoid nullity proceedings. Ensure your scheme documents reference this dispute resolution path.

For individuals

Pensioners must go to RBA, not court

If you are a retired worker with a dispute about your pension benefits, you cannot sue your former employer or the trustees in the Employment Court. Instead, write a letter to the Chief Executive Officer of the Retirement Benefits Authority. If you are unhappy with that decision, appeal to the Retirement Benefits Appeals Tribunal. Only after that can you approach the High Court. Following this order is mandatory.

Frequently asked questions

#
Can I sue my pension scheme in Kenya's Employment Court?+

No, the Supreme Court has ruled that the Employment and Labour Relations Court cannot hear disputes between pensioners and trustees because pensioners are not employees. You must start with the Retirement Benefits Authority CEO.

What is the Retirement Benefits Authority dispute process in Kenya?+

Disputes between pension scheme members and trustees go first to the Chief Executive Officer of the Retirement Benefits Authority. If dissatisfied, you appeal to the Retirement Benefits Appeals Tribunal. Only after that can you seek judicial review in the High Court.

Where do I file a pension dispute in Kenya?+

File your complaint with the Chief Executive Officer of the Retirement Benefits Authority. Do not go directly to the High Court or Employment Court. The Act gives the CEO original jurisdiction over pension disputes.

Does the High Court handle pension disputes in Kenya?+

The High Court has no original jurisdiction to hear pension disputes between members and trustees because the Retirement Benefits Act provides a specific dispute resolution mechanism. The High Court can only be approached after exhausting the RBA process.

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Albert Chaurembo Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (Suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme)", Case Analysis (2019). Petition 3 of 2016. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/83/eng@2019-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.