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ELRCStruck OutPetition dated 16th September 2016

Mbogo & 111 others v Kenya Planters Co-operative Union (Petition 125 of 2016) [2025] KEELRC 427 (KLR)

Employment and Labour Relations Court
14 February 2025
2,845 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court struck out 112 pensioners' Ksh. 250 million claim, ruling pension disputes must go through the Retirement Benefits Authority first.

What this practically means

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Executive summary

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One hundred and twelve petitioners, former employees of the respondent and members of the Kenya Planters Co-Operative Union Limited Stafi Retirement Benefits and Life Scheme, petitioned the Employment and Labour Relations Court claiming breach of their rights to pension benefits under Articles 41(1), 43(1)(e) and 57 of the Constitution. They sought declarations, Ksh. 149,825,531/- being unremitted contributions, unpaid withdrawn benefits and the actuarial deficit, plus Ksh. 100,000,000/- general damages, interest and costs. The respondent went into receivership in 2009; the scheme was wound up and liquidated, and a liquidator's report dated 30th April 2010 quantified unremitted contributions at Kshs. 77,938,737. The respondent filed a preliminary objection but closed its case without calling a witness, relying on filed pleadings. The court framed three issues: exhaustion of alternative remedies, merit, and remedies. Relying on the Supreme Court's decision in Chaurembo Mumba as revisited in Kenya Tea Growers Association v NSSF Board of Trustees, the court held that the petitioners, having become pensioners, no longer stood in an employer-employee relationship with the respondent; their dispute was with the sponsor of a pension scheme and fell under the Retirement Benefits Authority Act, whose procedure (including appeal to the Tribunal) ought to have been exhausted. Holding that the petition was a case of constitutional avoidance and that it lacked jurisdiction over disputes between pensioners and a pension scheme's trustees/sponsor, the court downed its pen and struck out the petition for want of jurisdiction, making no order as to 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 petitioners exhausted alternative legal remedies on the issue of pension dispute before instituting the petition
  2. 2.Whether the petition was merited
  3. 3.Remedies

Key legal issues

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01

Whether the petitioners exhausted alternative legal remedies before instituting the petition

Holding

They did not; the dispute falls under the Retirement Benefits Authority's mandate under sections 53A and 53B of the Retirement Benefits Authority Act, and the statutory procedure had to be exhausted first

Reasoning

The dispute concerned unremitted contributions, unpaid withdrawn benefits and the actuarial deficit of a liquidated pension scheme. The court held the petitioners to be pensioners, the respondent the sponsor, so the dispute fell squarely under the Retirement Benefits Authority. The statutory procedure, including appeal to the Tribunal, is complete and ought to be exhausted before resort to court.

p. 6
02

Whether the court had jurisdiction over a pension dispute between pensioners and a scheme sponsor

Holding

No; applying the Supreme Court's decision in Chaurembo as revisited in Kenya Tea Growers Association v NSSF, the ELRC lacks jurisdiction over disputes between pensioners and trustees of a pension scheme

Reasoning

The petitioners were pensioners, not employees; once a member becomes a pensioner the employer-employee relationship ends and is replaced by a trustee-beneficiary relationship governed by the Retirement Benefits Act, Trustees Act and common law on trusts. The Supreme Court's decisions bind this court, so the court lacked jurisdiction and the petition was a case of constitutional avoidance.

p. 6
03

Whether the petition was merited

Holding

The court did not reach the merits, having downed its pen for want of jurisdiction

Reasoning

Jurisdiction being foundational, the court could not take any further step. The petition was struck out rather than determined on the evidence of the 1st petitioner, who had testified on behalf of the other 111 petitioners.

p. 7

Legal principles established

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  • The ELRC lacks jurisdiction over disputes between pensioners and trustees of a specific pension scheme; such disputes are governed by dedicated statutes (Retirement Benefits Act, Trustees Act) and common law on trusts
  • Once a member leaves employment of a sponsor and becomes a pensioner, the relationship becomes one of trustee and beneficiary governed by the Retirement Benefits Act and Trustees Act, not employer-employee
  • Where a court has no jurisdiction it must down its tools and take no further step
  • A party must exhaust the dispute-resolution mechanisms under the Retirement Benefits Authority Act, including the appeal mechanism to the Tribunal, before coming to court

Court orders

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  1. 1.The petition was struck out for want of jurisdiction
  2. 2.No order as to costs, this being a constitutional petition

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act; jurisdiction contested on the basis of the Retirement Benefits Authority Act (Sections 53A and 53B) and the Supreme Court's Chaurembo decision as revisited in Kenya Tea Growers Association v NSSF Board of Trustees

Relief refused

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Declaration that the Respondent breached the Petitioners' fundamental rights under Articles 41(1), 43(1)(e) and 57 of the Constitution

The court lacked jurisdiction over disputes by pensioners arising from a pension scheme; the petition was a case of constitutional avoidance

p. 6

Ksh. 149,825,531/- being amounts allegedly unlawfully held by the Respondent, with interest

Struck out for want of jurisdiction; the dispute ought first to have been presented to the Retirement Benefits Authority

p. 6

General damages of Ksh. 100,000,000/- for breach of fiduciary duty and violation of constitutional rights

Struck out for want of jurisdiction

p. 7

Costs

No order as to costs - 'This being a constitutional petition the court made no order as to 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.

The petitioners are pensioners and this court lacks jurisdiction as per the Chaurembo decision revisited by the Supreme Court in the NSSF Act case.
p. 6Want of jurisdiction over pensioner disputes
The court held that the petition was a case of constitutional avoidance.
p. 6Constitutional avoidance
Indeed there is even an appeal mechanism to the Tribunal under the Act. The procedure is complete and ought to be exhausted before coming to court.
p. 6Exhaustion of alternative remedies
Consequently, the court held it had no jurisdiction over the cause of action (dispute arising from a pension scheme ) and downed its pen. The petition was struck out for want of jurisdiction.
p. 7Disposition - strike out
This being a constitutional petition the court made no order as to costs.
p. 7Costs order

Issues in the judgment

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minor

The judgment does not state the respondent's name in a formal title/caption; the respondent is identified only as the former employer and sponsor of the Kenya Planters Co-Operative Union Limited Stafi Retirement Benefits and Life Scheme

minor

Typographical errors in the text of the preliminary objection description

minor

The liquidation dates are stated inconsistently - the liquidator's report is dated 30th April 2010 while PW1 stated winding up commenced in January 2010 and paragraph 4 says the Scheme went into liquidation in January 2011

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, "Mbogo & 111 others v Kenya Planters Co-operative Union (Petition 125 of 2016) [2025] KEELRC 427 (KLR)", Case Analysis (2025). Petition dated 16th September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/427/eng@2025-02-14

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