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Court of AppealDismissedCivil Appeal No. 162 of 2016· [2017] KECA 198 (KLR)

Sarah Wahu Njoroge & 88 others v Retirement Benefits Appeals Tribunal & 2 others [2017] KECA 198 (KLR)

Court of Appeal of Kenya
19 October 2017
2,839 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that once a tribunal delivers a final decision it cannot reopen the matter, and late appeals won't be saved by Article 159(2)(d).

What this practically means

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Executive summary

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The appellants, former employees of Barclays Bank of Kenya, disputed the calculation of their pension benefits. Their complaint to the Retirement Benefits Authority was dismissed, and they appealed to the Retirement Benefits Appeals Tribunal. On 28th September, 2012 the Tribunal allowed the appeal, set aside the Authority's decision, and referred the matter back to the Authority for fresh consideration, fixing a mention date of 19th October, 2012. The Authority reconsidered and compiled a report dated 27th November, 2013 largely upholding the computations. The appellants then filed a memorandum of appeal on 8th July, 2014, outside the 30-day period, and the Tribunal merged it with the concluded Appeal No. 1 of 2012. The Trustee and Barclays Bank sought judicial review, and Korir, J. on 5th November, 2015 quashed the Tribunal's ruling of 14th November, 2014 and prohibited further proceedings, with no orders as to costs. The appellants appealed on 16 grounds, contending mainly that the 28th September, 2012 order was not final, that the Tribunal was not functus officio, and that Article 159(2)(d) cured the late filing. The Court of Appeal affirmed the High Court, holding that the 2012 decision was final, the Tribunal thereby became functus officio, the mention date did not revive the matter, the direction to reconsider exceeded section 49 of the Retirement Benefits Act, and Article 159(2)(d) does not whitewash procedural failings. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Functus officio of the Retirement Benefits Appeals Tribunal

Holding

The Tribunal's decision of 28th September, 2012 allowing the appeal and remitting the matter to the Authority was a final decision; the Tribunal thereby became functus officio

Reasoning

The court agreed with Korir, J. that a bystander reading the proceedings would conclude the appeal was heard, allowed, the RBA decision set aside and the matter referred for fresh hearing. Once final judgment is delivered, the decision-maker cannot re-open the matter except under the slip rule, and the letter of 20th November, 2012 confirmed the matter had been referred for hearing and determination.

p. 4
02

Merger of the unnumbered 2014 appeal with the concluded Appeal No. 1 of 2012

Holding

The Tribunal acted wrongfully in merging the unnumbered appeal with the already determined appeal

Reasoning

Having become functus officio, the Tribunal had no jurisdiction to revive or merge the concluded appeal with a later memorandum of appeal filed out of time; doing so arrogated to itself a power it did not have.

p. 4
03

Scope of section 49 of the Retirement Benefits Act

Holding

Section 49 confers powers to summon witnesses, take evidence and call for documents, not to direct reconsideration; the direction to the Authority to reconsider was outside its ambit

Reasoning

The court set out section 49 in full and concluded that the powers conferred relate to taking evidence on appeal, not to ordering reconsideration of a matter by the Authority; accordingly the direction to reconsider exceeded the Tribunal's powers.

p. 4
04

Article 159(2)(d) and procedural technicalities

Holding

The late-filed 2014 appeal could not be saved by Article 159(2)(d); the provision does not override procedural rules

Reasoning

The 2014 appeal was filed outside the 30-day period prescribed by section 49(1) of the Retirement Benefits Act. Relying on Telkom Kenya v John Ochanda, the court held that compliance with procedural rules is not antithetical to substantive justice.

p. 5

Legal principles established

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  • Once a tribunal or court delivers a final decision on the merits it becomes functus officio and cannot revive, reconsider or merge into the concluded matter a later appeal, save for the limited slip rule
  • The fixing of a mention date cannot convert a determined appeal into an undetermined one; a mention date reflects only supervisory powers to ensure orders are acted upon
  • Article 159(2)(d) of the Constitution does not whitewash procedural failings or place procedural rules at naught
  • Section 49 of the Retirement Benefits Act confers on the Tribunal only the powers to summon witnesses, take evidence and call for production of documents, and does not extend to directing reconsideration by the Authority

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1
  • Law Reform ActSections 8 and 9
  • Civil Procedure ActSection 3
  • Retirement Benefits ActSection 47
  • Retirement Benefits ActSection 49(1)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (4)

  • Zacharia Okoth Obado v Edward Akongo Oyugi & Others, S.C. No. 7 of 2014
  • Emfil Ltd v Registrar of Titles, C.A. No. 312 of 2012
  • Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR
    [2014] eKLR
  • James Mwashori Mwakio v Kenya Commercial Bank Ltd, CA Civil Application No. Nai. 59 of 1998
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. JR. No. 110 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court judicial review judgment (statutory right of appeal); no constitutional or statutory provision expressly quoted

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, "Sarah Wahu Njoroge & 88 others v Retirement Benefits Appeals Tribunal & 2 others [2017] KECA 198 (KLR)", Case Analysis (2017). Civil Appeal No. 162 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/198/eng@2017-10-19

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