Mbogo & 111 others v Kenya Planters Co-operative Union (Petition 125 of 2016) [2025] KEELRC 427 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioners exhausted alternative legal remedies on the issue of pension dispute before instituting the petition
- 2.Whether the petition was merited
- 3.Remedies
Key legal issues
#Whether the petitioners exhausted alternative legal remedies before instituting the petition
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
The dispute concerned unremitted contributions, unpaid withdrawn benefits and the actuarial deficit of a liquidated pension scheme.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.
Whether the court had jurisdiction over a pension dispute between pensioners and a scheme sponsor
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
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.
Whether the petition was merited
The court did not reach the merits, having downed its pen for want of jurisdiction
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.
Legal principles established
#- 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
#- 1.The petition was struck out for want of jurisdiction
- 2.No order as to costs, this being a constitutional petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
General damages of Ksh. 100,000,000/- for breach of fiduciary duty and violation of constitutional rights
Struck out for want of jurisdiction
Costs
No order as to costs - 'This being a constitutional petition the court made no order as to costs.'
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.
The petitioners are pensioners and this court lacks jurisdiction as per the Chaurembo decision revisited by the Supreme Court in the NSSF Act case.
The court held that the petition was a case of constitutional 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.
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.
This being a constitutional petition the court made no order as to costs.
Issues in the judgment
#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
Typographical errors in the text of the preliminary objection description
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.