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Court of AppealDismissedCivil Appeal 191 of 2014· [2017] KECA 743 (KLR)

Okal v Telkom (K) Ltd (Founder & 9 others (Civil Appeal 191 o f 20 of 2014) [2017] KECA 743 (KLR)

Court of Appeal of Kenya
24 February 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
4,416 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 dismissed a pension dispute because vague constitutional petitions fail and pension grievances must first go through the Retirement Benefits Authority's processes.

What this practically means

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Executive summary

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The appellant, a former Telkom (K) Ltd employee and member of the Teleposta Pension Scheme, petitioned the High Court alleging discrimination in pension increments, exclusionary trustee elections, unimplemented AGM resolutions, fraud, corruption, mismanagement and exploitative hiring of fund consultants. He sought declarations, injunctions and damages. Lenaola J dismissed the petition on 18 December 2013, holding that it failed to meet the minimum precision required in constitutional petitions, disclosed no cause of action, and that the appellant should have pursued the dispute mechanisms under the Retirement Benefits Act and the Trust Deed, with each party bearing its own costs. On appeal, a three-judge bench of the Court of Appeal (Visram, Karanja and Koome, JJ.A) in a single unanimous judgment re-evaluated the material and affirmed. It applied Anarita Karimi Njeru and Mumo Matemu, holding that a petitioner must state with reasonable precision the constitutional provisions infringed, the manner of infringement and the remedy sought; the appellant's generalized allegations of fraud and discrimination lacked factual or evidentiary basis. The court rejected the argument that the overriding objective could cure defective pleadings, holding it a misconception that procedural compliance is antithetical to Article 159. It further held, citing Njenga Karume, that the appellant should first have exhausted the arbitration and RBA Appeals Tribunal mechanisms. The appeal was dismissed and, owing to the appellant's social and pecuniary status, each party was ordered to bear its own costs. The judgment binds lower courts on the precision and exhaustion requirements in constitutional litigation.

Key legal issues

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01

Standard for constitutional petitions

Holding

A constitutional petition must identify with reasonable precision the constitutional provisions violated, the manner of violation and the remedy sought; the appellant's petition fell below this irreducible minimum.

Reasoning

Applying Anarita Karimi Njeru and Mumo Matemu, the court found the appellant cited no specific articles, offered no factual or evidentiary basis for allegations of fraud, discrimination and mismanagement, and dumped amorphous material on the court to sift. Precision is not exactitude, but some definition of the dispute is indispensable; the oxygen rules cannot cure such defect.

p. 7
02

Role of pleadings

Holding

Pleadings are essential to frame issues and give fair notice; a court cannot second-guess a litigant's cause of action or remedy.

Reasoning

Following Thorp v Holdsworth and Mumo Matemu, the court held that procedure is a handmaiden of justice; cases cannot be dealt with justly unless parties and court know the issues. The court below rightly refused to guess at what the in person appellant wanted from his pleading.

p. 6
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Exhaustion of alternative dispute resolution mechanisms

Holding

Disputes concerning a pension scheme should first be channelled through the mechanisms in the Retirement Benefits Act and the Trust Deed - arbitration and the RBA Appeals Tribunal - before a constitutional petition is mounted.

Reasoning

The court endorsed Lenaola J's finding that the grievances did not raise constitutional issues. Citing Speaker of National Assembly v Njenga Karume and International Centre for Policy and Conflict, it held statutory dispute organs must be exhausted first, notwithstanding the right of access to justice.

p. 8
04

Duty of first appellate court

Holding

The Court of Appeal on a first appeal must re-evaluate, re-assess and re-analyse the material before the High Court and reach its own independent conclusion.

Reasoning

Citing Abok James Odera and Kenya Ports Authority v Kuston, the court restated the first-appeal standard: reconsider the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses, ruling only on the evidence on record.

p. 5

Legal principles established

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  • A litigant alleging violation of constitutional rights must set out with reasonable precision the provision infringed, the manner of infringement and the remedy sought; vague allegations cannot be cured by the overriding objective.
  • Compliance with rules of procedure is not antithetical to Article 159 or the overriding objective; the Anarita Karimi Njeru precision rule remains good law under the 2010 Constitution.
  • A party must first exhaust statutory and contractual dispute resolution mechanisms before approaching the High Court by way of constitutional petition.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 27, 28, 33, 35, 38, 43, 57, 159, Chapter 12
  • Retirement Benefits ActSection 34 (and general dispute resolution provisions)
  • Civil Procedure ActSections 1A, 1B, 3A, 3B
  • Appellate Jurisdiction ActSections 3A, 3B
  • Public Procurement and Disposal Act2005 (general)
  • Societies ActCap 108
  • Cooperative Societies ActCap 490
  • Mutunga Rules (Court procedure rules referred to by appellant)Rule 10

Cases cited (9)

  • Alphonse Mwangemi Munga & 10 Others v African Safari Club Ltd
    [2008] eKLR
  • Narok County Council v Trans Mara County Council
    [2000] 1 EA 161
  • Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Thorp v Holdsworth
    [1876] 3 Ch. D. 637
  • Anarita Karimi Njeru v Republic
    [1976-1980] 1 KLR 1272
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance and 5 others
    Civil Appeal no 290 of 2012 (2013) eKLR
  • International Centre for Policy and Conflict & 4 others vs The Hon. Uhuru Kenyatta and others
    Petition No. 552 of 2012
  • Speaker of National Assembly vs Njenga Karume
    [2008] 1KLR 425
On appeal from
High Court of Kenya at Nairobi
H.C. Petition No. 377 of 2013
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Appellate Jurisdiction Act (specific section not stated in the judgment)

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, "Okal v Telkom (K) Ltd (Founder & 9 others (Civil Appeal 191 o f 20 of 2014) [2017] KECA 743 (KLR)", Case Analysis (2017). Civil Appeal 191 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/743/eng@2017-02-24

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