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Court of AppealPartially AllowedCourt of Appeal at Nairobi (Civil Appeal from High Court JR application re RBAT Appeal Case No. 4 of 2012)

Mutua v Attorney General & 2 others (Civil Appeal 93 of 2015) [2019] KECA 227 (KLR)

Court of Appeal of Kenya
11 October 2019
5,476 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that the Retirement Benefits Appeals Tribunal had full power to recalculate a pensioner's benefits and award him relief.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Makhandia and Sichale, JJA) allowed an appeal by Joseph Sembei Mutua against a High Court judicial review decision of Odunga, J. (23rd February 2015) which had quashed, by certiorari and prohibition, a decision of the Retirement Benefits Appeals Tribunal (RBAT) of 29th August 2013. RBAT had recalculated Mutua's pension at Ksh.172,130 per month under rule 4(a) of the scheme rules. The High Court had held that section 49 of the Retirement Benefits Act did not expressly confer on RBAT power to grant substantive reliefs, and that a statutory tribunal has no inherent powers. The Court of Appeal framed two issues: the parameters of judicial review and RBAT's jurisdiction. On the first, it endorsed the constitutionalisation of judicial review, holding that Kenya has one integrated system of judicial review underpinned by Articles 22, 23 and 47 and the Fair Administrative Action Act. On the main issue, the Court accepted that section 49 does not expressly list the orders RBAT may issue, but held that section 52 of the Act makes the Civil Procedure Act and Rules applicable until the Chief Justice makes rules; section 78 of the CPA and Order 42 rules 31 and 32 CPR confer express power on an appellate body to determine a case finally and make any order that ought to have been made. The contrary construction would produce an absurdity. The High Court's orders were set aside, RBAT's decision was upheld, and the respondents were ordered to bear the costs of the appeal.

Questions the Court framed

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

  1. 1.Whether RBAT had the jurisdiction to hear the appeal from RBA and grant the orders it made on 29th August 2013 in Appeal Case No. 4 of 2012
  2. 2.The parameters applicable in considering judicial review applications (secondary issue, not contentious)

Key legal issues

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01

Whether RBAT had jurisdiction to hear and grant the orders made on 29th August 2013

Holding

RBAT had jurisdiction; its appellate powers under sections 47, 48 and 49 of the Retirement Benefits Act, supplemented by the CPA and CPR under section 52 (no CJ rules having been made), empowered it to make final and consequential orders on appeal.

Reasoning

The Court accepted that section 49 does not expressly state the orders RBAT may issue, but held that RBAT's jurisdiction to hear appeals from RBA flows from sections 47 and 48. Section 52 provides that until CJ rules are made, the CPA applies as if the matter were a decree of a subordinate court. Section 78 of the CPA and Order 42 rules 31 and 32 of the CPR confer on an appellate court power to determine a case finally, vary or reverse decrees, and pass any order that ought to have been made. These provisions apply mutatis mutandis to RBAT as express, not implied, power.

p. 10
02

Parameters of judicial review in Kenya

Holding

Judicial review can no longer be confined to the traditional common-law grounds of illegality, irrationality and procedural impropriety; it has been elevated to a constitutional pedestal and is now underpinned by Articles 22, 23 and 47 and the Fair Administrative Action Act.

Reasoning

The Court endorsed Child Welfare Society of Kenya, which followed the Supreme Court in Communication Commission of Kenya v Royal Media Services and IEBC v NASA, holding that common law judicial review remedies are now fused into constitutional and statutory remedies, giving Kenya one integrated system of judicial review. The parties were agreed on the traditional view, but the Court stated the constitutional position is the current view. The High Court's merits-based holding that RBAT's decision on the applicable rules was a merit decision amenable to appeal, not review, was not disturbed as there was no cross-appeal.

p. 6
03

Standard for disturbing a discretionary judicial review decision on appeal

Holding

An appellate court is slow to disturb the exercise of discretion by a judge unless the judge misdirected himself in law, misapprehended the facts, took or failed to take account of relevant considerations, or the decision is plainly wrong.

Reasoning

The Court recited the classic Madan, JA formulation from United India Insurance v East African Underwriters as the governing standard. It then applied the statutory-construction analysis to the central jurisdiction question and concluded the trial judge's construction of section 49 was untenable, warranting setting aside his orders while upholding RBAT's decision.

p. 5

Legal principles established

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  • A statutory tribunal whose appellate jurisdiction is exercised under a fallback of the Civil Procedure Act and Rules has power to make the final and consequential orders an appellate court may make under section 78 CPA and Order 42 rules 31 and 32; it is not rendered powerless to grant relief merely because its parent statute does not expressly list the orders it may issue.
  • A construction that would permit a tribunal to hear an appeal but deny it power to grant any final or consequential orders produces an absurdity which courts must avoid.
  • Judicial review in Kenya is constitutionally underpinned (Articles 22, 23 and 47 read with the Fair Administrative Action Act); Kenya has one, not two mutually exclusive systems of judicial review, and the common law and constitutional/statutory review approaches are complementary.

Court orders

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  1. 1.Appeal allowed
  2. 2.The decision of the High Court that RBAT had no jurisdiction or power to make its orders of 29th August 2013 set aside
  3. 3.The decision of the Retirement Benefits Appeals Tribunal upheld
  4. 4.The respondents shall bear the costs of the appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi (Judicial Review)
JR application quashing RBAT decision in Appeal Case No. 4 of 2012 (Odunga, J.)
Jurisdiction invoked
Second appellate jurisdiction under the Court of Appeal's statutory appellate powers (appeal against orders of certiorari and prohibition issued in judicial review by the High Court)

Relief refused

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Upholding the High Court's finding that RBAT had no jurisdiction to grant substantive reliefs

The Court found that until rules under section 52 are made, the CPA and CPR provide sufficient express basis for RBAT to exercise its appellate jurisdiction, including making final orders

p. 10

Costs

The respondents shall bear the costs of the appeal.

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.

In our view, until the rules as required under section 52 of the Act are made, the CPA and CPR provide suficient basis for RBAT to exercise its jurisdiction.
p. 10Tribunal jurisdiction - statutory fallback to CPA/CPR
It is express power, not implied, given to RBAT to exercise mutatis mutandis.
p. 10Nature of tribunal's appellate powers
the construction adopted by the trial court that RBAT had the power to hear the appeal and decide on it, but had no power to grant any final or consequential orders would result in an absurdity, anomaly or illogical result, which courts have always avoided.
p. 10Avoiding absurd construction of tribunal powers
That is still the current view we hold on the parameters of JR applications.
p. 6Constitutionalisation of judicial review
The appeal is meritorious and is allowed. The decision of the Retirement Benefits Appeals Tribunal is hereby upheld. The respondents shall bear the costs of the appeal.
p. 10Final orders and disposition

Issues in the judgment

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minor

Two consecutive paragraphs are both numbered 17 in the judgment; the numbering of paragraphs is irregular.

minor

The judgment refers to RBAT's orders of 29th August 2013 in one place and to 29th August 2016 in another, an apparent internal inconsistency.

minor

The High Court decision being appealed was issued on 23rd February 2015, yet RBAT's decision quashed by that decision was made on 29th August 2013; the two dates are internally consistent but the text also states RBAT's decision was 'in Appeal Case No. 4 of 2012' while the appeal filed is described inconsistently as 'Appeal Case No. 4 of 2012' throughout - no case number for the Court of Appeal appeal itself is given.

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, "Mutua v Attorney General & 2 others (Civil Appeal 93 of 2015) [2019] KECA 227 (KLR)", Case Analysis (2019). Court of Appeal at Nairobi (Civil Appeal from High Court JR application re RBAT Appeal Case No. 4 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/227/eng@2019-10-11

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