Rift Valley Railways Workers Union v Kenya Railways Staff Retirement Benefits Scheme,Kenya Railways Corporation,Corporate Trustees,Retirement Benefits Authority,Ethics & Anti-Corruption Commission,Retirement Benefits Authority & Alexander Forbes (Cause 2289 of 2015) (Employment and Labour) [2018] KEELRC 1260 (KLR)

The court examined Ndolo J's ruling of 19th August 2016 and found that it made no finding on the preliminary objections or the issues in the suit; its only determination was to refer the matter for resolution under the Retirement Benefits Act. Since no issue had been determined, the court retained authority over the matter.

Pension matters are employment matters within the court's unlimited original jurisdiction under Section 12 of the Employment and Labour Relations Act. The Tribunal was not constituted because members' terms had ended and no appointments had been made. The law did not anticipate such a lacuna, and a litigant cannot be left without a remedy because authorities failed to appoint tribunal members.

The claimant is a signatory to the Trust Deed of the 1st respondent, and its members are members of the Scheme. That status confers standing to sue on behalf of its members. Since no final determination had been made in the suit, the suit was also not res judicata.

Because the matter had been referred to a dysfunctional tribunal and no determination had been made on the issues in the suit, the claimant's return to court to assume jurisdiction in the absence of the Tribunal was not an abuse of process, nor could the suit be res judicata absent a final determination.