Kenya Ports Authority Pension Scheme v Ogando & another (Civil Appeal E234 of 2024) [2025] KECA 1699 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a pension scheme settlement, ruling that signed agreements bind the parties and courts cannot rewrite them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the learned Judge of the Environment and Land Court had jurisdiction to entertain the claim comprised in the amended Plaint
- 2.whether the learned judge was in error in setting aside the Consent dated 20th May 2024
- 3.whether the trial court ought to have allowed the 1st Respondent's application for contempt
- 4.whether the learned judge was in error in granting an order of inhibition which was entirely dependent on a finding that the Appellant Scheme trustees were in contempt, and in granting an inhibition yet the amended Plaint did not seek such relief
Key legal issues
#Jurisdiction of the Environment and Land Court over the pension scheme claim
The claim was for outstanding rent over land, an environment and land matter, so the ELC had jurisdiction; Sections 46 and 48 of the Retirement Benefits Act did not oust it
The amended plaint sought Kshs. 14 billion in unremitted rent for Scheme properties still held by KPA. Those were demands for rent, not disputes arising from decisions of scheme managers or the Retirement Benefits Authority CEO under Sections 46 and 48. Rent claims relating to land are the preserve of the Environment and Land Court under Sections 3 and 13. The jurisdiction objection was raised for the first time on appeal, which is permissible because jurisdiction goes to the root.
Setting aside the Consent dated 20th May 2024
The Consent, though never adopted as a court order, remained a binding contract; no fraud, coercion or undue influence was proved, so the trial judge erred in setting it aside and it is reinstated
The record showed adoption of the Consent was deferred, not concluded; it was therefore never an order of the court but remained a contract. Settled law on consent orders applies to adopted orders; here contractual principles govern. The 1st Respondent participated in negotiations, amended the draft, and signed it; no evidence of fraud, coercion or undue influence was led. Setting it aside was an error of principle warranting appellate interference.
Contempt of the order of 7th May 2024
Contempt was not established because willful and deliberate disobedience was not proved; the Scheme processed the 2024 tender solely in reliance on the signed Consent
Three contempt elements were undisputed, but the fourth, willfulness, failed. The Scheme acted on a specific term of the Consent permitting disposal of the properties in the 2024 tender. Sanctioning a party for adhering to a negotiated settlement would be unjust, particularly as Article 159(2)(c) enjoins courts to promote alternative dispute resolution. The trial judge's dismissal of contempt was not faulted.
Grant of the inhibition order
The inhibition order was set aside because it was not sought in the pleadings and was dependent on a contempt finding which failed
The court, quoting Sir Jack Jacob on pleadings, held that parties and the court are bound by the pleadings. The 1st Respondent sought inhibition only pending hearing and determination of the application, not of the suit; that order lapsed with the ruling. The trial judge granted a broader relief than prayed and beyond the pleadings, which was wrong.
Legal principles established
#- The issue of jurisdiction can be argued at any time, even for the first time on appeal
- A consent not adopted as an order of the court remains only a contract between the parties, and can only be set aside on grounds that would justify setting aside a contract
- Courts cannot rewrite contracts; parties are bound absent coercion, fraud or undue influence pleaded and proved
- The four elements for contempt of a court order, including willful and deliberate breach
- Parties and the court are bound by pleadings; a court cannot pronounce a claim or relief not made by the parties
Court orders
#- 1.The Environment and Land Court has jurisdiction to determine Mombasa ELC J No: EO73 0F 2021
- 2.The Ruling and order of the Environment and Land Court dated 15th October 2024 in respect of the Notice of Motion dated 12th June, 2024 be and is hereby set aside, and substituted with an order dismissing the motion
- 3.In so far as the Ruling and order of the Environment and Land Court dated 15th October 2024 in respect of the Notice of Motion dated 12th June, 2024 sets aside the duly executed consent dated 7th May, 2024, the order be and is hereby set aside
- 4.The Ruling and order of the Environment and Land Court dated 15th October 2024 in respect of the Notice of Motion dated 18th June, 2024 be and is hereby upheld, save that the order of inhibition against any transfer and/or any dealing pertaining to and connected with the Appellant Scheme's properties to any third party until this suit is heard and finally determined be and is hereby set aside
- 5.Costs are awarded in favour of the Appellant Scheme
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Mombasa
- Mombasa ELC J No: E073 OF 2021
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 34(4) of the Court of Appeal Rules (2022) (judgment signed by remaining judges following the death of F. Ochieng, JA)
Relief refused
#Cross-appeal seeking reversal of the dismissal of the contempt application and summoning of the trustees
Contempt was not established because the willful and deliberate element was absent; the Scheme acted on a signed Consent, and promoting settlement under Article 159(2)(c) would be inconsistent with a contempt finding
1st Respondent's reliance on the inhibition order
The trial judge granted an order not sought in the pleadings, and one tied only to the pending application which had lapsed
Costs
Costs are awarded in favour of the Appellant Scheme.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Ruling and order of the Environment and Land Court dated 15th October 2024 in respect of the Notice of Motion dated 12th June, 2024 be and is hereby set aside, and substituted with an order dismissing the motion.
Costs are awarded in favour of the Appellant Scheme.
The Environment and Land Court has jurisdiction to determine Mombasa ELC J No: EO73 0F 2021.
In sum, the appeal is allowed and succeeds in substantial part. The cross appeal is lacking in merit and is accordingly dismissed.
Issues in the judgment
#Internal inconsistency in the date of the consent: the appeal grounds and orders refer to a consent dated 20th May 2024, while the final orders refer to 'the duly executed consent dated 7th May, 2024', the date of the ex parte injunction order
The text states the contempt order terms were 'clear and ambiguous', contradicting the settled requirement that the order be clear AND unambiguous
The judgment text is visibly corrupted in places, e.g. 'the 1st Respondent failed to prove his case for contempt' rendered as 'concluding that the 1st Respondent failed to prove his case for contempt; that the one and only reason the Appellant Scheme gave for not complying... is that there was a signed Consent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority Pension Scheme v Ogando & another (Civil Appeal E234 of 2024) [2025] KECA 1699 (KLR)", Case Analysis (2025). Court of Appeal Civil Appeal (Mombasa) arising from Mombasa ELC No. E073 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1699/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.