Republic v Retirements Benefits Appeal Tribunal & another; Retirement Benefits Authority & 3 others (Interested Parties) Ex Parte Board of Trustees Teleposta Pension Scheme [2019] KEELRC 392 (KLR)
The bottom line
#A Kenyan court rejected 109 pension scheme claimants' attempts to join a retirement benefits case because they offered no proof they were members or original participants.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the suit
The issue was res judicata, having been determined by Nyamweya J's ruling transferring the matter from the High Court to the ELRC
The applicants had objected to jurisdiction via preliminary objection, arguing the ELRC lacks jurisdiction over retirement benefits appeals. The court held this issue was already determined by Nyamweya J's transfer ruling and declined to rehash the reasons. The court also noted the applicants' contradictory position in contesting jurisdiction while seeking orders from the same court.
Joinder of the applicants as interested parties
Refused - no documentary evidence that the applicants were members of the scheme or parties to the RBAT proceedings
The applicants claimed to be among the 948 scheme members but annexed no evidence of membership or participation in the RBAT proceedings. Judicial review concerns the decision-making process, not the merits, and a party seeking joinder must show direct effect. Without such material the application fell on this ground alone.
Leave for Amadi and Amadi Advocates to come on record
Unnecessary - no judgment has been delivered, so Order 9 Rule 9 CPR does not apply
The court agreed with the Ex-parte Applicant and 2nd Interested Party that since there is no judgment in the judicial review proceedings, the requirement of leave under Order 9 Rule 9 does not apply. Counsel needed only to file a notice of appointment.
Enjoinment of LUKA NGUTTA NGOLOPA
Refused - barred by prior rulings closing the joinder window; res judicata and abuse of process
No document showed Ngolopa was part of the 948 litigants at RBAT or removed from that list. Aburili J's ruling of 7th November 2017 closed the joinder window, and Nyamweya J dismissed subsequent joinder applications on 7th May 2018. Aggrieved parties' remedy was review or appeal.
Legal principles established
#- Where jurisdiction is contested, the court must deal with it before proceeding any further, since without jurisdiction the court acts in vain
- A party seeking joinder in judicial review proceedings must disclose how he or she is directly affected and adduce material showing direct effect; otherwise the court will be reluctant to join
- A party cannot approbate and reprobate: one who contests a court's jurisdiction cannot simultaneously seek substantive orders from that court
- An advocate wishing to come on record in a suit in which no judgment has been delivered need only file a notice of appointment; Order 9 Rule 9 CPR is inapplicable
Court orders
#- 1.The Notice of Motion application dated 26th April 2019 is dismissed
- 2.No orders for costs
- Jurisdiction invoked
- Sections 12(1), 12(3) and 12(5) of the Employment and Labour Relations Court Act; Employment and Labour Relations Court (Procedure) Rules Rules 2 and 8(1); Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Retirements Benefits Appeal Tribunal & another; Retirement Benefits Authority & 3 others (Interested Parties) Ex Parte Board of Trustees Teleposta Pension Scheme [2019] KEELRC 392 (KLR)", Case Analysis (2019). Notice of Motion dated 26th April 2019 (in JR proceedings formerly before the High Court, transferred to ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/392/eng@2019-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.