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Court of AppealPartially AllowedCivil Appeal No. 20 of 2017· [2018] KECA 710 (KLR)

Staff Pension Fund & Kenya Commercial Bank Staff Retirement (DC) Scheme 2006 & another v Ann Wangui Ngugi & 524 others [2018] KECA 710 (KLR)

Court of Appeal
16 March 2018
EGE. M. GithinjiHOH. M. OkwenguJMJ. Mohammed
4,783 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed there is no right to appeal a Retirement Benefits Tribunal decision to any other court — the Tribunal is the final word on pension disputes.

What this practically means

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Executive summary

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This appeal by the trustees of the Kenya Commercial Bank Staff Pension Fund and the Retirement Benefits Authority challenged a ruling of the Employment and Labour Relations Court (Abuodha, J) dismissing a preliminary objection and admitting an appeal against a decision of the Retirement Benefits Tribunal. The ELRC had reasoned that former employees' pension disputes fell within its jurisdiction, that absent an ouster provision the right of access to court prevailed, and that future appeals from the Tribunal should be filed only with leave. The Court of Appeal allowed the appeal. Relying on Samuel Kamau Macharia and Nyutu Agrovet Limited, the court held that a right of appeal must be expressly conferred by the Constitution or statute and cannot be implied. The Retirement Benefits Act provides only for review by the CEO and an appeal to the Tribunal, with no further appeal; section 12(5) of the ELRC Act and Rules 2 and 8(1) of the Employment Procedure Rules merely recognise appeals prescribed by written law without creating them. The Tribunal is not a subordinate court, and the Civil Procedure Act does not confer a right of appeal from its decisions. Supervisory jurisdiction under Article 165(6) is a review jurisdiction and does not apply where appellate jurisdiction has been invoked. The respondents' appeal to the ELRC was therefore incompetent. The court set aside the ELRC ruling insofar as it related to the right of appeal, allowed the preliminary objection, and struck out the appeal, declining to determine the ELRC's statutory jurisdiction over pension disputes as moot. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether a right of appeal exists from the Retirement Benefits Tribunal to the ELRC

Holding

No right of appeal exists; the Retirement Benefits Act provides for a first appeal/review to the CEO and a second appeal to the Tribunal only, and no third appeal is provided for. The appeal to ELRC was incompetent.

Reasoning

The Retirement Benefits Act is the basic law governing retirement benefits disputes and provides its own dispute resolution hierarchy ending with the Tribunal. Neither the Act, section 12(5) of the ELRC Act, nor the Employment Procedure Rules confers an appeal from the Tribunal. Since a right of appeal must be expressly conferred and cannot be implied, and the Civil Procedure Act cannot supplant the specific statutory scheme, the appeal filed by the respondents was incompetent.

p. 6
02

Whether the Tribunal is a subordinate court so that the Civil Procedure Act applies to confer appeals

Holding

The Tribunal is not a subordinate court; its powers under section 49(1) are limited to summoning witnesses, taking evidence and production of documents, and the Civil Procedure Act does not confer a right of appeal from its decisions.

Reasoning

The Tribunal is a statutory body established by the Minister under the Retirement Benefits Act. Section 3 of the Civil Procedure Act preserves special jurisdictions conferred by other laws, so the CPA cannot override the Retirement Benefits Act and the Tribunal Rules. Rule 12 of the Tribunal Rules adopts the Civil Procedure Rules only where there is no provision governing procedure, and section 52 of the Act does not apply since the Chief Justice has made the Tribunal Rules.

p. 5
03

Whether leave granted by a court can create a right of appeal

Holding

Leave to appeal does not constitute the right to appeal; the right must exist in statute before leave can operate.

Reasoning

Adopting Nyutu Agrovet Limited, the court held that a court cannot assume appellate jurisdiction not granted by the Constitution or statute. The duty of the court is to interpret the law as enacted, not to legislate for what Parliament has failed to provide.

p. 5
04

Whether the ELRC has statutory jurisdiction over retirement benefits disputes

Holding

The question was not determined; it was rendered moot by the finding that the appeal did not lie, and the court reserved it for the right occasion.

Reasoning

The court reasoned that deciding statutory jurisdiction without also deciding the ELRC's constitutional jurisdiction would not finally settle the law and would cause confusion, so it declined to determine the question until properly raised.

p. 6

Legal principles established

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  • A right of appeal must be expressly conferred by the Constitution or statute and cannot be implied or inferred; where statute does not provide for an appeal from a tribunal, neither the ELRC nor the High Court has jurisdiction to entertain such an appeal.
  • Section 12(5) of the ELRC Act and Rules 2 and 8(1) of the Employment Procedure Rules confer no right of appeal; they only apply where an appeal is already provided for under written law.
  • The Civil Procedure Act does not confer a right of appeal from the Retirement Benefits Tribunal; the Tribunal is not a subordinate court and its powers under section 49(1) of the Retirement Benefits Act are limited.
  • Grant of leave to appeal by a court does not itself create a right of appeal; the statute itself must provide for the appeal, with or without leave.
  • Supervisory jurisdiction under Article 165(6) is a review jurisdiction and is not applicable where a party has invoked the appellate jurisdiction of a court.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The Ruling of the ELRC dismissing the preliminary objection is set aside insofar as it relates to the right of appeal
  3. 3.The preliminary objection on the right of appeal is allowed
  4. 4.The respondents' appeal before the ELRC is struck out
  5. 5.Each party bears its/his own costs of the appeal and the court below

Authorities

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Legislation

  • Retirement Benefits ActNo. 3 of 1997
  • Retirement Benefits ActSection 26
  • Retirement Benefits ActSections 25, 25A, 25B and 27
  • Retirement Benefits ActSection 32
  • Retirement Benefits ActSection 46
  • Retirement Benefits ActSection 47
  • Retirement Benefits ActSection 48(1) and 48(2)
  • Retirement Benefits ActSection 49(1)
  • Retirement Benefits ActSection 51
  • Retirement Benefits ActSection 52
  • Retirement Benefits (Tribunal) RulesRule 12
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 162(3)
  • Constitution of KenyaArticle 163(4)
  • Constitution of KenyaArticle 165(5)
  • Constitution of KenyaArticle 165(6)
  • Employment & Labour Relations Court ActSection 12(1)
  • Employment & Labour Relations Court ActSection 12(3)
  • Employment & Labour Relations Court ActSection 12(5)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 2
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 8(1)
  • Civil Procedure ActSection 3
  • Civil Procedure ActSections 77A to 79G
  • Arbitration ActSection 35
  • Arbitration RulesRule 11

Cases cited (10)

  • Board of Trustees of New Kenya Creameries Ltd (Junior) Staff Pension Scheme v Retirement Benefits Authority
    [2012] eKLR
  • The Trustees, Teleposta Pension Scheme v. Mackenzie M. Mogere & Another
    [2013] eKLR
  • Nasim Devji & 3 Others v. Retirement Benefits Authority
    [2014] eKLR
  • Trustees of Telposta Pension Scheme v Attorney General & 5 Others
    [2014]
  • Amon O. Chuchu & 9 Others v Retirement Benefits Authority & 2 Others
    [2015] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Harman Singh Bhogal t/a Harman Singh & Co. v Jadya
    [1953] 20 EACA 17
  • Anarita Karimi Njeru v Republic (No. 2)
    [1976-1980] KLR 1283
  • Kakuta Maimai Hamisi & 2 Others v Peris Pesi Tobiko & 2 Others
    [2013] eKLR
  • Nyutu Agrovet Limited v Airtel Networks Limited
    [2015] eLKR
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Cause No. 10 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Act, from the Employment and Labour Relations Court exercising jurisdiction under Article 162(2) of the Constitution and the Employment & Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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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, "Staff Pension Fund & Kenya Commercial Bank Staff Retirement (DC) Scheme 2006 & another v Ann Wangui Ngugi & 524 others [2018] KECA 710 (KLR)", Case Analysis (2018). Civil Appeal No. 20 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/710/eng@2018-03-16

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