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ELRCDismissedNot stated in judgment

Gwakou v Kariuki & 3 others (Being Sued as Representatives of Consolata Fathers Society); ABSA Bank of Kenya PLC, Formerly Barclays Bank of Kenya Ltd & another (Third party) (Cause E286 of 2023) [2025] KEELRC 2733 (KLR)

Employment and Labour Relations Court
3 October 2025
2,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can hear former employees' claims against employers for unpaid pension contributions, dismissing the objection.

What this practically means

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Executive summary

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The Claimant, by an Amended Memorandum of Claim dated 1st July 2024, sought declarations that the Respondents' failure to pay contributions to the provident fund and their deduction of pension contributions without remitting them breached her employment contract, plus KES 8,781,818 in arrears and interest. The Respondents then sought to enjoin Absa Bank of Kenya Plc and Old Mutual Investment Group Ltd as third parties, and the proposed 1st Third Party lodged a Preliminary Objection contending that the ELRC lacked jurisdiction because no employer-employee relationship existed (the Claimant having retired in July 2021), that pensioners cannot sue under Section 12(2) of the ELRC Act, and that pension disputes fall under the Retirement Benefits Act and the Retirement Benefits Authority. The Respondents supported the objection, relying heavily on Albert Chaurembo Mumba and invoking exhaustion of statutory remedies. The Claimant opposed, arguing the dispute arose from the contractual duty to deduct and remit pension contributions, that her employer status had already been determined in earlier applications, and that Sections 46 and 47 of the Retirement Benefits Act did not apply since she had not sued scheme trustees or administrators. Holding that the sole issue was jurisdiction, the Court distinguished Albert Chaurembo Mumba, applied the Supreme Court's later clarification in Kenya Tea Growers Association, and found the claim anchored on the employment contract, making it an employment dispute within Section 12(1)(a). The Preliminary Objection dated 30th May 2025 was dismissed with costs in the cause.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to hear and determine the present dispute

Key legal issues

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01

Whether the ELRC has jurisdiction over a claim by a former employee against her employers for failure to remit pension contributions to a provident fund

Holding

The Court has jurisdiction; the dispute is an employment/contract dispute, not a pension administration matter.

Reasoning

The Court distinguished Albert Chaurembo Mumba, where pensioners sued scheme trustees. Here the Claimant sued her former employers for breach of their contractual duty to deduct and remit pension contributions, anchoring her case on the employment contract, not scheme rules or a trust deed. Cessation of employment does not divest jurisdiction. The Kenya Tea Growers decision confirmed the ELRC's mandate covers grievances generated by mandatory contributory deductions from earnings.

p. 4
02

Whether the exhaustion of remedies under Section 46 of the Retirement Benefits Act bars the claim

Holding

It does not, because the dispute is not between a member and scheme trustees/administrators.

Reasoning

Section 46(1) of the Retirement Benefits Act applies to members, beneficiaries or dependants aggrieved by decisions of managers, administrators or trustees of a scheme. The Claimant did not sue such parties nor challenge scheme decisions; she sued her employers for contractual breach. The statutory dispute-resolution framework under the Retirement Benefits Authority is therefore not triggered.

p. 5

Legal principles established

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  • The ELRC's jurisdiction extends to claims by former employees where the grievance is anchored on breach of the employment contract, even after employment has ceased
  • What the ELRC lacks is jurisdiction over disputes between pensioners and scheme trustees, not employer-contract claims over unremitted pension contributions

Court orders

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  1. 1.The Preliminary Objection dated 30th May 2025 by the proposed 1st Third Party is dismissed with costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

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.

Accordingly, the Claimant's grievance arises from obligations under the contract of employment and therefore falls within the realm of an employment dispute, rather than a pension administration matter.
p. 4Jurisdiction - nature of dispute
Therefore, the fact that the employment relationship between the Claimant and the Respondents has since ceased does not in itself divest this Court of jurisdiction.
p. 5Jurisdiction - former employees
In sum, this Court finds that it is properly seized of the matter, and the Preliminary Objection dated 30th May 2025 by the proposed 1st Third Party is without merit and is dismissed with an order that costs shall be in the cause.
p. 5Disposition

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, "Gwakou v Kariuki & 3 others (Being Sued as Representatives of Consolata Fathers Society); ABSA Bank of Kenya PLC, Formerly Barclays Bank of Kenya Ltd & another (Third party) (Cause E286 of 2023) [2025] KEELRC 2733 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2733/eng@2025-10-03

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