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Court of AppealDismissedCivil Appeal No. 204 of 2017· [2020] KECA 666 (KLR)

George Omondi & 210 others v Retirement Benefits Appeals Tribunal & 2 others [2020] KECA 666 (KLR)

Court of Appeal of Kenya
8 May 2020
DMD.K. MusingaSKS. Gatembu KairuKMK. M'inoti
3,067 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 pension disputes end at the Retirement Benefits Appeals Tribunal — you cannot appeal further to the Employment and Labour Relations Court.

What this practically means

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Executive summary

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This appeal concerned a narrow but consequential jurisdictional question: whether the Employment and Labour Relations Court has jurisdiction to hear appeals from decisions of the Retirement Benefits Appeals Tribunal. The appellants, former employees of the Central Bank of Kenya and members of its Pension Fund, disputed the computation of their retirement benefits following amendments to the Fund's Trust Deed and Rules in 1996. Their complaints were rejected by the Retirement Benefits Authority and then by the RBA Appeals Tribunal. They appealed to the High Court, and the matter was transferred to the ELRC, where the Retirement Benefits Authority raised a preliminary objection on jurisdiction. The ELRC (M.N. Nderi, J.) upheld the objection and dismissed the appeal with costs, holding that the Retirement Benefits Act does not confer appellate jurisdiction on the ELRC. The Court of Appeal affirmed. Analysing Sections 46 to 49 of the Retirement Benefits Authority Act, Section 12 of the Employment and Labour Relations Court Act, and Rules 2 and 8(1) of the ELRC (Procedure) Rules, 2016, the Court held that the right of appeal must be conferred by written law and that the Act makes no provision for escalation of disputes beyond the RBA Appeals Tribunal. The Court applied the Owners of the Motor Vessel 'Lillian S' and Samuel Kamau Macharia jurisdiction principles, followed its own recent decision in Staff Pension Fund & another v Ann Wangui & 524 others, and distinguished the Supreme Court's decision in Nyutu Agrovet, which was confined to Section 35 of the Arbitration Act. The appeal was dismissed with costs to the 2nd and 3rd respondents only.

Key legal issues

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01

Whether the ELRC has jurisdiction to hear appeals from decisions of the RBA Appeals Tribunal

Holding

It does not. The right of appeal must be conferred by written law; neither the Retirement Benefits Authority Act nor the Employment and Labour Relations Court Act confers such a right on the ELRC.

Reasoning

The Court examined Sections 46, 47, 48 and 49 of the Retirement Benefits Authority Act, which provide for review by the RBA's Chief Executive Officer and appeal to the RBA Appeals Tribunal, but contain no provision for escalation beyond that Tribunal. Section 12(5) of the ELRC Act and Rules 2 and 8(1) of the ELRC (Procedure) Rules require that an appeal be provided for by written law. Since no written law provides for an appeal from the RBA Appeals Tribunal to the ELRC, the ELRC lacks jurisdiction, and the appeal to it is incompetent.

p. 3
02

Whether the Supreme Court decision in Nyutu Agrovet alters the position by allowing appeals without express statutory provision

Holding

It does not. Nyutu Agrovet concerned the specific question of appeals under Section 35 of the Arbitration Act, and the majority there affirmed that a right of appeal must be conferred by the Constitution or a statute.

Reasoning

The Court distinguished Nyutu Agrovet as addressing only whether a right of appeal lies from High Court determinations under Section 35 of the Arbitration Act, a circumscribed jurisdiction founded on a statutory provision. The majority in Nyutu Agrovet itself held that a right of appeal can only be conferred by the Constitution or a statute, which supports, rather than undermines, the conclusion that no appeal lies from the RBA Appeals Tribunal to the ELRC absent statutory provision.

p. 4

Legal principles established

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  • There is no right of appeal to the ELRC from decisions of the Retirement Benefits Appeals Tribunal; the right of appeal must be conferred by a written law and cannot be implied or inferred.
  • In the absence of a statutory provision conferring jurisdiction on the ELRC to entertain appeals from the RBA Appeals Tribunal, such an appeal is incompetent.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs awarded to the 2nd and 3rd respondents only

Authorities

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Legislation

  • Retirement Benefits Authority ActSection 3
  • Retirement Benefits Authority ActSection 46
  • Retirement Benefits Authority ActSection 47
  • Retirement Benefits Authority ActSection 48
  • Retirement Benefits Authority ActSection 49
  • Retirement Benefits Act, Cap. 197Section 47
  • Employment and Labour Relations Court Act, 2011Section 12(1)
  • Employment and Labour Relations Court Act, 2011Section 12(1)(a)
  • Employment and Labour Relations Court Act, 2011Section 12(5)
  • Employment and Labour Relations Court Act, 2011Section 18
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 2
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8(1)
  • Civil Procedure ActSection 65
  • Arbitration ActSection 35
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 163
  • Constitution of Kenya, 2010Article 165(3)(c)
  • Constitution of Kenya, 2010Article 169(1)(d)
  • Constitution of Kenya, 2010Article 259

Cases cited (9)

  • Nyutu Agrovet Limited vs. Airtel Networks Kenya Limited and another, SC Petition No. 12 of 2016
  • Re the Matter of Advisory Opinions of the Court under Article 163 of the Constitution, Constitutional Application No. 2 of 2011
  • Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Nyutu Agrovet Limited vs. Airtel Networks Kenya Limited
    [2015] eKLR
  • Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Staff Pension Fund & Kenya Commercial Bank Staff Retirement (DC) Scheme 2006 and another vs. Ann Wangui & 524 others, Civil Appeal No. 20 of 2017
  • Mackenzie Moulding Mogere & another vs The Trustees of Teleposta Pension Scheme and others, Civil Appeal No. 221 of 2015
  • Nasim Devji & others vs. Retirement Benefits Appeals Tribunal, Civil Appeal No. 108 of 2012
  • Pension Scheme vs. Attorney General and others, Industrial Court Petition No. 16 of 2013
On appeal from
Employment and Labour Relations Court at Nairobi
Nai. ELRC Appeal No. 5 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution over the Employment and Labour Relations Court; the appeal concerned whether the ELRC has jurisdiction under Section 12 of the Employment and Labour Relations Court Act and the Retirement Benefits Authority Act over appeals from the RBA Appeals Tribunal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "George Omondi & 210 others v Retirement Benefits Appeals Tribunal & 2 others [2020] KECA 666 (KLR)", Case Analysis (2020). Civil Appeal No. 204 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/666/eng@2020-05-08

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