Association of Retirement Benefits Schemes v Attorney General & 2 others; Retirement Benefits Authority (Interested Party)
The bottom line
#Kenya's Court of Appeal confirmed that pension and retirement benefits schemes must follow public procurement law and cannot claim exemption on constitutional grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant and retirement benefits schemes are public entities under section 2 (o) of the Act
Yes - they are public bodies performing functions of a public nature, operating in close cooperation with State authorities and under State supervision via the Retirement Benefits Act.
Neither the Constitution nor the Act defines 'public entity', so the court derived its meaning from Black's Law Dictionary and section 3(1)(d) of the Interpretation and General Provisions Act. It adopted Onguto, J's extended reading of 'public entity' under Article 227, holding that schemes supervised under the Retirement Benefits Act and serving public interests qualify even without State funding.
Whether application of the Act to the appellant is justifiable
Yes - the Act gives effect to Article 227 and the national values of good governance, integrity, transparency and accountability under Article 10(2)(c).
The court held that exempting retirement benefits schemes from procurement law would create a culture of impunity in the sector. The Act's purposes - efficient public procurement, assets disposal and realisation of national values - justify its application to all public entities including the appellant.
Whether section 2 (o) of the Act is unconstitutional
No - the section is constitutional and the High Court so holding was not faulted.
Having found the appellant to be a public entity, the definitional provision properly brings it within the procurement regime designed to give effect to Articles 227 and 10 of the Constitution. The appellant failed to persuade the court otherwise.
Whether application of the Act discriminates or restricts contract and property rights
No - differential State regulation of public entities is not Article 27 discrimination, and transparency obligations do not restrict Article 19(2), Article 40 rights or freedom of contract.
The court held there is a limit to stretching constitutional edicts on equality; unequal regulatory burdens on public entities pursuing public purposes are permissible. Public entities procuring public goods cannot be shielded from supervision, and accountability duties coexist with property rights.
Legal principles established
#- Retirement benefits schemes, including pension funds of public entities, are public entities within the meaning of section 2 (o) of the Public Procurement and Asset Disposal Act, 2015 and are bound by that Act.
- The phrase 'public entity' under Article 227 bears an extended meaning, distinct from 'public office' or 'public officer' under Article 260 of the Constitution.
- State regulation of public entities that does not extend to private competitors is not discrimination contrary to Article 27.
Court orders
#- 1.Appeal dismissed
- 2.Judgment and decree of the High Court in Petition No. 170 of 2016 upheld
- 3.Appellant to bear the costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi (Constitutional and Human Rights Division)
- Petition No. 170 of 2016
- Jurisdiction invoked
- First appeal/constitutional appeal from High Court; no specific provision stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Association of Retirement Benefits Schemes v Attorney General & 2 others; Retirement Benefits Authority (Interested Party)", Case Analysis (2022). Civil Appeal 283 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/543/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.