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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application (as in judgment; Notice of Motion dated 8th July 2022)· [2024] KECA 286 (KLR)

Association of Retirement Benefits Schemes v The Hon Attorney General & 3 others

Court of Appeal
8 March 2024
2,572 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 cleared a major pensions procurement question for Supreme Court review but refused to pause its own ruling.

What this practically means

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Executive summary

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By a Notice of Motion dated 8th July 2022 under Article 163(4)(b) of the Constitution and Rule 42 of the Court of Appeal Rules, the Association of Retirement Benefits Schemes, whose petition challenging the constitutionality of section 2(o) of the Public Procurement and Asset Disposal Act, 2015 was dismissed by the High Court (Mativo, J) on 9th March 2017 and whose appeal was subsequently dismissed by the Court of Appeal, sought certification that its intended appeal to the Supreme Court raises points of law of general public importance, and a stay of enforcement of the procurement-law compliance requirements pending that appeal. The application was heard on 6th November 2023; the Retirement Benefits Authority supported it through submissions and a replying affidavit. The Court (Gatembu Kairu, Tuiyott and Lesiit, JJ.A) applied the Hermanus Philipus Steyn test, finding that the question whether pension funds or pension schemes of public entities are public funds requires Supreme Court clarification and affects the whole body of public-entity pension schemes and their non-party members. It granted certification. However, it declined the stay prayer, holding that once it has pronounced final judgment the Court of Appeal is functus officio and lacks statutory authority to stay its own decision, following Dickson Muricho Muriuki and Odongo. The application therefore succeeded only to the extent of certification, with no orders as to costs. The intended appeal now proceeds to the Supreme Court.

Key legal issues

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01

Whether the intended appeal raises points of law of general public importance for the Supreme Court

Holding

Certification granted: the question whether pension funds or pension schemes of public entities are public funds requires Supreme Court clarification involving interpretation of the Constitution and the Act.

Reasoning

Applying the Hermanus Philipus Steyn threshold, the Court found the applicant demonstrated a substantive matter needing clarification. The determination affects the entire body of pension schemes of public entities in Kenya, their members and beneficiaries who are not parties to the suit. Clarification entails interpretation of the Constitution and the Public Procurement and Asset Disposal Act as dealt with by both courts below.

p. 5
02

Whether the Court of Appeal can stay its own final judgment pending appeal to the Supreme Court

Holding

It cannot; the Court is functus officio after final judgment and has no statutory authority to stay its own decision.

Reasoning

Prayer one sought a stay of the judgment of the Court of Appeal upholding the High Court's dismissal. Relying on Odongo v Clerk, Nakuru County Assembly and Dickson Muricho Muriuki v Timothy Kagondu Muruiki, the Court held that after pronouncing final judgment it must down its tools; absent statutory authority, functus officio prevents re-opening a decided case.

p. 6

Legal principles established

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  • Once the Court of Appeal has pronounced final judgment it is functus officio and cannot stay execution of its own orders pending an intended appeal to the Supreme Court absent statutory authority.
  • A matter seeking certification under Article 163(4)(b) must be of public importance transcending the particular case, and where it raises a point of law the applicant must show uncertainty in that law.

Court orders

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  1. 1.Certification that the intended appeal raises points of law of general public importance fit for appeal to the Supreme Court
  2. 2.Prayer one of the application (stay) declined
  3. 3.No orders as to costs
On appeal from
High Court of Kenya
Petition dated 28th April 2016
Jurisdiction invoked
Article 163(4)(b) of the Constitution; Rule 42 of the Court of Appeal Rules 2010

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, "Association of Retirement Benefits Schemes v The Hon Attorney General & 3 others", Case Analysis (2024). Civil Application (as in judgment; Notice of Motion dated 8th July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/286/eng@2024-03-08

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