Mackenzie Moulding Mogere & another v Trustees of Telposta Pension Scheme & 4 others [2017] KECA 330 (KLR)
The bottom line
#The Court of Appeal dismissed a pension petition that tried to relitigate an issue already decided in judicial review, confirming employment disputes belong in the ELRC.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the constitutional petition
The High Court properly transferred the petition to the ELRC and the ELRC properly heard it, since the dispute arose from employment and labour relations and constitutional issues ancillary to employment fall within the ELRC's domain
The Court relied on its prior decisions (Mugendi, USIU, Shollei, Opembe) holding that there is no stand-alone constitutional court and that courts of equal status may enforce Bill of Rights issues incidental to their exclusive domains. Retirement benefits disputes are rooted in the employment relationship, bringing the matter within Article 162(2)(a) and section 12 of the ELRC Act.
Res judicata / abuse of process in litigating the Tribunal's decision twice
The ELRC was not entitled to adjudicate the merits of the Tribunal's decision, which had already been determined in the Judicial Review application; prayer (c) was res judicata and should have been struck out
The same parties and the same issue — calculation of pension on consolidated versus basic salary — had been fully litigated before Majanja, J. in the Judicial Review matter decided earlier in 2014. The trial court's findings mirrored that decision. Relitigating it risked contradictory findings by higher courts and constituted abuse of process, particularly as non-disclosure of the JR application had been found.
Availability of the constitutional declarations sought against the Retirement Benefits Act
The declarations in prayers (a), (b) and (d) were unavailable because the Tribunal remains subject to the supervisory jurisdiction of the ELRC, so an aggrieved party has a remedy
The trial court found the Tribunal amenable to judicial review by the ELRC; the Court endorsed that view, meaning the premise of the constitutional challenge — that there was no further remedy — failed. The trial court should have dismissed those prayers rather than ignore them, and the Court substituted dismissal of the whole petition.
Legal principles established
#- The ELRC has jurisdiction to enforce not only Article 41 labour rights but also all fundamental rights ancillary and incidental to employment and labour relations, including interpretation of the Constitution within matters before it
- A party may choose either common law Order 53 judicial review or constitutional/statutory review remedies; the two are not mutually exclusive, but pursuing the same remedies in different courts is an abuse of process
- Jurisdiction must be raised at the earliest opportunity and determined first, as it is everything
Court orders
#- 1.Appeal allowed
- 2.Decision and orders of the Employment and Labour Relations Court made on 21st November 2014 set aside
- 3.Substituted order dismissing the petition dated 24th April 2013
- 4.Appellants awarded costs of the appeal and of the dismissed petition
- On appeal from
- Industrial Court of Kenya (now Employment & Labour Relations Court) at Nairobi
- Industrial Court Petition No. 16 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the ELRC exercising constitutional jurisdiction; Articles 162 and 165 of the Constitution and section 12 of the Employment and Labour Relations Act considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mackenzie Moulding Mogere & another v Trustees of Telposta Pension Scheme & 4 others [2017] KECA 330 (KLR)", Case Analysis (2017). Civil Appeal No. 221 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/330/eng@2017-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.