Makongeni Residents Association (MARA) v Kenya Railways Staff Retirement Benefits Scheme (KRSRBS); Attorney General & 5 others (Interested Parties); Ministry of Finance (Intended Interested Party); Kenya Railways Corporation (Intended Respondent)
The bottom line
#Kenya's Environment and Land Court struck out a railway workers union's application because a non-advocate filed it and pension disputes belong in the Employment and Labour Relations Court.
What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection
The objection met the Mukisa Biscuits criteria: it raised pure points of law (capacity and jurisdiction) capable of disposing of the application without ascertaining facts
The court applied Mukisa Biscuits and Oraro v Mbaja, holding that a preliminary objection must be a point of law not blurred by factual details or discretion. Capacity of a party and jurisdiction are points of law fit for preliminary determination, and the court is under a duty to determine jurisdiction first.
Whether a non-advocate Secretary General could file and prosecute the application
Mr Munayi Isaac Opondo, not being an advocate, could not represent the union before the ELC; sections 31 and 34 of the Advocates Act bar unqualified persons from acting, and no section 83 exception applied
Section 9 of the Advocates Act requires admission, a Roll entry and a practising certificate. Sections 31 and 34 prohibit unqualified persons from instituting or carrying on proceedings. The Labour Relations Act and ELRC Act exceptions apply only in the ELRC, not the ELC, and no written authority from the union was produced.
Jurisdiction of the Environment and Land Court over the dispute
The issues in the application, concerning trusteeship, pensions and retirement benefits, fall within the Employment and Labour Relations Court, not the ELC
The ELC is established under Article 162(2)(b) with exclusive jurisdiction over environment and land disputes. The application concerned the running of a pension trust and trustees' appointments, matters the court found belong to the ELRC, a constitutionally distinct court.
Legal principles established
#- A preliminary objection raising locus standi need not state the specific law violated, provided it is a pure point of law
- Lack of capacity of a party to appear before a court deprives the court of jurisdiction over that party and its pleadings
- Representation rights under the Labour Relations Act and the Employment and Labour Relations Court Act do not confer a right of audience before the Environment and Land Court
Court orders
#- 1.The Notice of Preliminary Objection dated 20/07/2023 is allowed in terms of all its prayers, including that the application dated 11/07/2023 be struck out and dismissed with costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makongeni Residents Association (MARA) v Kenya Railways Staff Retirement Benefits Scheme (KRSRBS); Attorney General & 5 others (Interested Parties); Ministry of Finance (Intended Interested Party); Kenya Railways Corporation (Intended Respondent)", Case Analysis (2023). Environment and Land Miscellaneous Application E067 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20073/eng@2023-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.