Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another
The bottom line
#Kenya's Environment and Land Court stopped a pension scheme's property sale, ruling the case belongs before it and pensioners' rights were at risk.
What this practically means
#Executive summary
#Key legal issues
#Res judicata vis-à-vis High Court Civil Suit No. 81 of 2019
The plea of res judicata fails; the causes of action in the two suits are distinct and the High Court lacked jurisdiction to bring the earlier matter to finality
The court accepted that the parties were the same but found the causes of action 'like day and night extremely distinct and separate'. The High Court suit concerned management and regulation of shares within the pension scheme, governed by Sections 46 and 48 of the Retirement Benefits Act, whereas the ELC suit concerns the legality of tendered sale of scheme properties, governed by the Environment and Land Court Act and the Land Registration Act. Further, the High Court ruling declared it lacked jurisdiction, so the matter was not heard and finally determined by a competent court.
Original jurisdiction of the ELC over the dispute
The ELC has jurisdiction; the dispute concerns the legality of sale of land, not management of the pension scheme
The court distinguished between disputes over management of the scheme (for the RBA CEO mechanism under Sections 46 and 48 of the Retirement Benefits Act) and disputes over the legality of sale of scheme properties through tenders, which fall under the Environment and Land Court Act (Sections 3 and 13) and the Land Registration Act. The latter is the subject of this suit, so only the ELC has jurisdiction.
Temporary injunction under Giella v Cassman Brown
The Plaintiff met the criteria for a temporary injunction; the application succeeds
Applying Giella v Cassman Brown, the court found a prima facie case in the alleged contraventions of the Land Registration Act, procurement regulations requiring Treasury approval, and the Retirement Benefits Act subsidiary legislation on member participation. Irreparable loss was demonstrated by the sale of scheme property without pensioners' knowledge or permission. On balance of convenience, the court found a lower risk of injustice in granting the injunction pending full trial.
Setting aside the status quo order of 8th March 2022
The prayer to set aside Order No. 3 fails as contradictory to the injunction just granted
Although the law permits discharge or variation of injunction orders under Order 40 Rule 7 and Order 12 Rule 7 of the Civil Procedure Rules, the court had just granted the substantive interim relief sought in the Plaintiff's application. Setting aside the earlier status quo order would contradict the relief granted, so the 1st Defendant's application was dismissed entirely.
Legal principles established
#- Res judicata requires a previous suit, same parties or parties litigating under the same title, and a competent court that heard and finally determined the issue
- A court cannot compel a party to provide security for interlocutory orders as a precondition where the threshold for the orders is met
- Sale of pension scheme property without the knowledge or permission of pensioners demonstrates irreparable loss for purposes of interim injunction
Court orders
#- 1.The Notice of Motion dated 21st February 2022 by the Plaintiff is found to have merit and is allowed entirely
- 2.The Notice of Motion dated 17th March 2022 by the 1st Defendant is found to lack merit and is dismissed entirely
- 3.The matter to be heard and disposed of within 180 days commencing 9th October 2023, with a mention on 11th July 2023 for pre-trial conference on Order 11 compliance
- 4.Costs of the two applications to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Sections 3 and 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another", Case Analysis (2023). Environment & Land Case 73 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18544/eng@2023-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.