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Court of AppealDismissedCourt of Appeal Civil Appeal (not stated in judgment; memorandum of appeal dated 25th October 2023)

Standard Chartered Bank Kenya Limited & 10 others v General & 3 others (Civil Appeal E847 of 2023) [2025] KECA 433 (KLR)

Court of Appeal of Kenya
7 March 2025
9,173 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~37 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that the Retirement Benefits Appeals Tribunal can decide pension appeals on documents alone and order trustees to recalculate and pay benefits.

What this practically means

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Executive summary

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This is a judgment of a three-judge bench of the Court of Appeal at Nairobi (Kiage, Achode and Korir, JJ.A) delivered on 7th March 2025, dismissing an appeal by Standard Chartered Bank Kenya Limited and nine trustees of the Standard Chartered Kenya Pension Fund against Chigiti, J.'s dismissal of their judicial review motion seeking certiorari to quash a Retirement Benefits Appeals Tribunal decision. The Tribunal had allowed an appeal by 629 current and former bank employees and ordered recalculation and payment of pension benefits using the 1999 Trust Deed and Rules, cost of living adjustments, housing allowance and future increases, and directed the trustees to refund Kshs.1.1 billion surplus to the Fund, with the RBA to supervise compliance. The Court framed four issues: whether the Tribunal lacked jurisdiction by hearing the appeal on documents without oral evidence under sections 48 and 49 of the Retirement Benefits Act; whether the computation orders amounted to an abdication of jurisdiction rendering the Tribunal functus officio; whether the High Court judge should have conducted a merit review; and whether the Tribunal's procedure violated the Fair Administrative Actions Act. On each issue the Court found no error in the judgment below. It held that section 49(3) permits the Tribunal to consider any relevant evidence notwithstanding admissibility rules; that parties who consent to and participate in a flexible documents-based procedure are estopped from attacking it after losing; that computation directions with supervisory oversight are lawful and consistent with the Supreme Court's Mitu-Bell framework on structural interdicts, so functus officio does not apply; that an Order 53 application confines the High Court to process review per the Dande decision; and that procedural fairness under Article 47 and the Fair Administrative Actions Act was met. The decision below was affirmed and the appeal dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the learned judge erred in not finding the Tribunal acted without jurisdiction.
  2. 2.Whether the Tribunal's order for computation of pension benefits was an abdication of jurisdiction.
  3. 3.Whether the learned judge should have conducted a merit review.
  4. 4.Whether the procedure adopted by the Tribunal violated the Fair Administrative Actions Act.

Key legal issues

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01

Whether the Tribunal acted without jurisdiction by hearing the appeal on documents without taking oral evidence under sections 48 and 49 of the Retirement Benefits Act

Holding

The Tribunal acted within jurisdiction. Section 49(3) expressly permits it to consider any relevant evidence notwithstanding the rules of admissibility, and the appellants, having consented to and participated in the documents-based process, could not resile from it.

Reasoning

The court held that Parliament, appreciating the specialized nature of the Tribunal, deliberately kept its processes simple and expeditious, untrammeled by strict evidentiary rules. The appellants relied only on subsections (1) and (2) of section 49 while ignoring subsection (3). Further, the appellants accepted the Tribunal's directions without objection, filed submissions, and relied on the documents, so they were estopped from disowning the process after losing. Fairness does not always require an oral hearing.

p. 11
02

Whether the Tribunal's orders directing the trustees to compute and pay pension benefits amounted to an abdication of adjudicatory power and rendered it functus officio

Holding

The orders were lawful. The Tribunal, exercising appellate powers, may direct trustees to compute benefits in accordance with the Trust Deed and Rules and retain a supervisory role; functus officio does not apply.

Reasoning

The trustees are under a statutory duty under section 40 of the Act and Rule 7 of the Regulations to compute and pay benefits in accordance with the law and scheme rules. The Tribunal's mandate is to supervise management of schemes and enforce rights and duties under the Trust Deed and the law. Following Joshua Sembei Mutua and Laptrust, the Tribunal's appellate jurisdiction, importing Civil Procedure Act powers, permits final and consequential orders and supervisory directions; the computation orders fit within the Supreme Court's Mitu-Bell framework for structural interdicts.

p. 13
03

Whether the learned judge erred in declining a merit review

Holding

No error. The appellants approached the High Court under Order 53 via the Law Reform Act route, requiring leave, so the judge was confined to process review per the Supreme Court's decision in Dande.

Reasoning

The court found that although the Fair Administrative Actions Act was mentioned, the substantive and procedural route chosen was common law judicial review under the Law Reform Act and Order 53, evidenced by the prior application for leave. Under the Supreme Court's guidance, merit review is available under the Constitution or the FAA Act, but a purely Order 53 judicial review is limited to the process and manner in which the decision was reached. The judge's exercise of discretion could not be interfered with.

p. 15
04

Whether the Tribunal's procedure violated the Fair Administrative Actions Act and Article 47 of the Constitution

Holding

No violation was established; the proceedings before the Tribunal, taken as a whole, met the threshold for procedural fairness.

Reasoning

The court subjected the record to independent and exhaustive analysis and found the appellants' rights to procedurally fair administrative action were not infringed. They were represented, consented to the directions, and acted on them without objection. It was not demonstrated that the Tribunal's orders required payments otherwise than in accordance with the Trust Deed, the Rules or the law; the Tribunal's construction of those documents supported the directions given.

p. 15

Legal principles established

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  • The Retirement Benefits Appeals Tribunal may lawfully determine an appeal on documents and written submissions without oral evidence; the fairness of a hearing is not determined solely by its oral nature.
  • Section 49(3) of the Retirement Benefits Act permits the Tribunal to consider any evidence it considers relevant notwithstanding the ordinary rules of admissibility of evidence.
  • The doctrine of functus officio does not bar the Tribunal from issuing computation directions to trustees and retaining a supervisory role over compliance; such directions are lawful and do not constitute an abdication of adjudicatory power.
  • Structural interdicts, supervisory orders or interim reliefs issued by courts or tribunals must be specific, appropriate, clear, effective and directed at the parties with a mandate to enforce them (as per the Supreme Court in Mitu-Bell).
  • An Order 53 judicial review application confines the High Court to process review; a merit review is only available where the party approaches the court under the Constitution or the Fair Administrative Actions Act.
  • A party who consents to and participates in a flexible, documents-based procedure before a tribunal cannot later attack that process after losing; such a party is estopped by conduct from approbating and reprobating.
  • An appellate court will be slow to interfere with the exercise of discretion by a first-instance judge absent misapprehension of facts, consideration of irrelevant matters, or a plainly wrong decision occasioning injustice.

Court orders

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  1. 1.The appeal is dismissed with costs.

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
High Court of Kenya (judicial review)
Not stated in judgment
Jurisdiction invoked
First appeal/appellate jurisdiction of the Court of Appeal over the High Court's dismissal of an Order 53 judicial review motion (Constitution of Kenya, 2010; retirement benefits dispute under the Retirement Benefits Act)

Relief refused

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Setting aside the judgment and decree of the High Court (Chigiti, J.) dismissing the notice of motion for certiorari

The Tribunal did not act without jurisdiction; the computation orders were lawful and not an abdication; no merit review was required on an Order 53 application; the Tribunal's procedure satisfied the Fair Administrative Actions Act.

p. 16

Reference of the Tribunal's decision back to the Tribunal for rehearing

The appeal failed in its entirety, so the appellants' prayer for rehearing before the Tribunal fell away.

p. 16

Costs

The appeal was dismissed with costs to the respondents/claimants ('dismiss it with costs').

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.

Having come to those findings on the issues we distilled we come to the inescapable conclusion that the entire appeal is unmeritorious and dismiss it with costs.
p. 16Final orders - dismissal of the appeal with costs
Order accordingly.
p. 16Disposition
It is this statutory license that renders lawful the Tribunal's decision on the present case, to proceed on the basis of the filed documents unburdened by the strictures of strict rules of evidence.
p. 11Tribunal's evidentiary latitude under section 49(3)
the fairness of a hearing is not determined solely by its oral nature. It may be conducted through an exchange of letters as happened in the matter before us and we are satisfied that it was a fair hearing.
p. 11Fair hearing without oral evidence
where parties have opted to embrace a fiexible form of hearing by way of documents and submissions as was the case before the Tribunal, a party who lost in appeal cannot then turn around and disown the process that they subscribed to and even participated in by way of filing documents, submissions and participated in highlighting.
p. 10Estoppel by conduct; approbation and reprobation
The doctrine of functus oficio does not apply to bar the Tribunal from doing that which its appellate jurisdiction as the express provision of the Act permit it to do.
p. 13Functus officio and the Tribunal's computation orders
the interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the courts have to be specific, appropriate, clear, efiective and directed at the parties to the suit or any other state agency with a Constitutional or Statutory mandate to enforce the order.
p. 14Structural interdicts per the Supreme Court in Mitu-Bell
if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken
p. 14Order 53 judicial review limited to process review

Issues in the judgment

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minor

The judgment inconsistently renders the name of the Supreme Court case Saisi v Director of Public Prosecutions, citing it as 'SAISI & 7 Others v Director of Public Prosecutions & 2 Others [2023] KESC 6 KLR' and later as 'Praxidis Namoni Saisi & 7 Others v Director of Public Prosecution KESC 6 (KLR)', apparently referring to the same decision.

minor

The judgment misrenders this Court's own authority as 'Kenya Revenue Authority V Menginya Salim[2010]eKLR' in the memorandum of appeal summary, whereas the correct rendering used elsewhere in the judgment is 'Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Standard Chartered Bank Kenya Limited & 10 others v General & 3 others (Civil Appeal E847 of 2023) [2025] KECA 433 (KLR)", Case Analysis (2025). Court of Appeal Civil Appeal (not stated in judgment; memorandum of appeal dated 25th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/433/eng@2025-03-07

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