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Court of AppealPartially AllowedCivil Appeal (appellants' appeal from ELRC JR No. 37 of 2018; originally Judicial Review Application No. 85 of 2018, High Court)

National Bank of Kenya Staff Retirement Benefits Scheme & another v Murigi & 135 others (Civil Appeal E365 of 2020) [2024] KECA 1689 (KLR)

Court of Appeal
22 November 2024
4,309 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that pension disputes between retired employees and scheme trustees belong in the High Court, not the Employment Court.

What this practically means

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Executive summary

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Former employees of the National Bank of Kenya complained to the Retirement Benefits Authority that their pension benefits were miscalculated; the complaint was dismissed and they appealed to the Retirement Benefits Appeal Tribunal, which allowed their appeal and directed recalculation and payment in accordance with the scheme rules. Subsequent execution proceedings produced an adopted actuarial report (ruling of 8th August 2014) and a further ruling of 13th February 2017. The Bank and related parties sought certiorari and mandamus in the High Court to quash the Tribunal's decisions; the file was, by consent of the parties, transferred to the ELRC, where Onyango, J. dismissed the judicial review application on 31st January 2020, holding that the application was an appeal disguised as judicial review. On appeal to the Court of Appeal, the appellants contended that the ELRC lacked jurisdiction because the dispute was between pension scheme trustees and beneficiaries, not an employer-employee dispute. Citing the Supreme Court's decision in Albert Chaurembo Mumba, the Court of Appeal agreed: once a member leaves employment, the relationship becomes one of trustee and beneficiary governed by the Retirement Benefits Act and trust law, which the ELRC has no mandate to adjudicate. Jurisdiction cannot be conferred by consent or judicial craft; therefore the High Court improperly transferred the matter and the ELRC judgment was set aside in its entirety. Because the matter was never heard on merits and the transfer was by consent, the Court remitted the judicial review proceedings to the High Court, Judicial Review Division, under Rule 33 of the Court of Appeal Rules, with costs to abide the outcome.

Questions the Court framed

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

  1. 1.Whether the ELRC had jurisdiction to hear and determine the judicial review application concerning computation of pension benefits
  2. 2.Whether the High Court improperly transferred Judicial Review Application No. 85 of 2018 to the ELRC by consent
  3. 3.Whether the Tribunal exceeded its powers, rewrote its ruling of 8th August 2014, and set aside the parties' consent order

Key legal issues

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01

Jurisdiction of the ELRC over pension computation disputes

Holding

The ELRC lacked jurisdiction because the dispute concerned computation of pension benefits between trustees and former employees, not an employer-employee dispute under Section 12 of the Employment and Labour Relations Act

Reasoning

Applying the Supreme Court's decision in Albert Chaurembo Mumba, once the 2nd to 84th respondents ceased to be employees, the relationship became one of trustee and beneficiary governed by the Retirement Benefits Act, the Trustee Act and the common law of trusts. Nothing in the Employment and Labour Relations Court Act confers jurisdiction to resolve such disputes, so the entire ELRC proceeding was a nullity.

p. 9
02

Effect of consensual transfer of a case to a court without jurisdiction

Holding

The High Court improperly transferred Judicial Review Application No. 85 of 2018 to the ELRC; consent cannot cure a lack of jurisdiction

Reasoning

Although the parties by consent requested transfer to the ELRC, jurisdiction cannot be conferred by consent or judicial craft. The Court therefore set aside the ELRC judgment. However, because the transfer was by consent and the matter was not heard on merits, it would be unfair to leave the respondents to bear the consequences, and the Court invoked Rule 33 to remit the proceedings to the High Court.

p. 9

Legal principles established

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  • Once a member leaves the employment of a scheme sponsor, the relationship becomes one of trustee and beneficiary governed by the Retirement Benefits Act and trust law, and the ELRC has no jurisdiction over disputes between pension trustees and scheme members
  • Jurisdiction cannot be conferred on a court by consent of the parties or by judicial craft
  • A court's jurisdiction is determined by examining the pleadings, not the substantive merits of the case
  • Jurisdiction is a threshold matter that may be raised at any stage of proceedings, even for the first time on appeal

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of Onyango, J. dated 31st January 2020 in Judicial Review Application No. 37 of 2018 set aside in its entirety
  3. 3.Appellants' Judicial Review proceedings remitted to the High Court, Judicial Review Division, for hearing and determination on merits pursuant to Rule 33 of the Court of Appeal Rules
  4. 4.Costs to abide by the outcome of the Judicial Review Application

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court
ELRC JR No. 37 of 2018 (transferred from High Court Judicial Review Application No. 85 of 2018)
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act; Rule 33 of the Court of Appeal Rules, 2022 (remitting proceedings)

Relief refused

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Costs of the appeal and in the superior courts against the respondents

Costs were not awarded against any party; the Court directed that costs abide the outcome of the remitted judicial review proceedings, taking into account that the transfer to the ELRC was by consent

p. 9

Costs

Costs shall abide by the outcome of the Judicial Review Application.

Quotable passages

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

Where a court is drained of the jurisdiction to entertain a matter, the proceedings fiowing from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity.
p. 7Consequences of lack of jurisdiction
It is settled law that jurisdiction cannot be conferred by consent of judicial craft.
p. 9Jurisdiction cannot be conferred by consent
In the premises, we allow this appeal, set aside the judgement of Onyango, J. dated 31st January, 2020 issued in Judicial Review Application No. 37 of 2018 in its entirety.
p. 9Final orders - disposition
Accordingly, we order that the appellants’ Judicial Review proceedings be remitted to the High Court, Judicial Review Division, for hearing and determination on merits pursuant to Rule 33 of this Court’s Rules. Costs shall abide by the outcome of the Judicial Review Application.
p. 9Final orders - remittal and costs

Issues in the judgment

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minor

Paragraph numbering repeats; two consecutive paragraphs are both numbered 26, creating possible ambiguity in internal references

minor

Internal inconsistency in dates: the memorandum of appeal alleges the Tribunal set aside a consent recorded on 8th April 2016, while the submissions refer to a consent recorded on 8th April 2014

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "National Bank of Kenya Staff Retirement Benefits Scheme & another v Murigi & 135 others (Civil Appeal E365 of 2020) [2024] KECA 1689 (KLR)", Case Analysis (2024). Civil Appeal (appellants' appeal from ELRC JR No. 37 of 2018; originally Judicial Review Application No. 85 of 2018, High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1689/eng@2024-11-22

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