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ELRCDismissedJudicial Review Application (Notice of Motion dated 7th March, 2017)· [2020] KEELRC 1715 (KLR)

National Bank of Kenya Staff Retirement Benefits Scheme & another v Retirement Benefits Appeal Tribunal & others [2020] KEELRC 1715 (KLR)

High Court of Kenya
31 January 2020
4,460 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed the National Bank pension scheme's attempt to overturn a Tribunal ruling, confirming judicial review challenges process, not disagreeable outcomes.

What this practically means

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Executive summary

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The Ex-parte Applicants, the National Bank of Kenya Staff Retirement Scheme and the Scheme's Registered Trustees, sought orders of certiorari to quash the Retirement Benefits Appeals Tribunal's ruling of 13th February 2017, which directed payment of tabulated pension sums to 83 former bank employees, and mandamus directing the Tribunal to terminate further proceedings in the underlying appeal on the ground that it was functus officio following its ruling of 8th August 2014 and a consent order of 8th April 2016. The Applicants alleged the Tribunal rewrote its earlier ruling, set aside the consent orders without hearing, acted in excess of its statutory powers by delivering two judgments, granted unpleaded orders, delivered the ruling without notice and in camera, was biased, and relied on an actuarial report prepared by an actuary facing disciplinary proceedings before the UK Institute and Faculty of Actuaries. The 2nd to 84th Respondents countered that the ruling was delivered in open court, that the application attacked the merits of the Tribunal's decision rather than its process, and that it was an appeal disguised as judicial review and an abuse of process. Applying the Pastoli framework and the Kenya Pipeline v Hyosung Ebara principles, Justice Maureen Onyango found no evidence of ultra vires conduct, bias, rewriting of prior rulings, or procedural impropriety, noting the impugned ruling merely executed the Tribunal's judgment based on the actuarial report adopted on 8th August 2014. The court held the application was an appeal disguised as judicial review, dismissed it in its entirety on 31st January 2020, and awarded costs to the 2nd to 84th Respondents.

Key legal issues

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01

Whether the Tribunal's impugned ruling was ultra vires, biased or unconstitutional

Holding

No evidence supported any of the grounds; the Tribunal discharged its functions under the Retirement Benefits Act and the ruling was delivered in open court

Reasoning

The court examined the proceedings of 13th February 2017 and found the ruling was delivered in open court in the presence of counsel for the appellants. The impugned ruling merely executed the Tribunal's judgment as tabulated in the adopted actuarial report; there were not two judgments, no rewriting of the 8th August 2014 ruling, no setting aside of the consent orders, and no evidence of bias or of orders granted that were never sought.

p. 6
02

Whether the application was an appeal disguised as judicial review

Holding

Yes; the complaints went to the merits of the Tribunal's decision and are matters for appeal, not judicial review

Reasoning

The court agreed with the 2nd to 84th Respondents that the applicants were challenging the correctness of the Tribunal's ruling on execution rather than any procedural illegality. Since the applicants failed to establish misconceived discretion, irrelevant considerations, or gross unreasonableness, the judicial review orders could not issue.

p. 7

Legal principles established

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  • Judicial review intervention is limited to the decision-making process, not the merits of the decision
  • Certiorari will not issue where the tribunal has jurisdiction and the complaint is merely that its decision is wrong on law or fact
  • A party seeking judicial review must establish illegality, irrationality or procedural impropriety

Court orders

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  1. 1.The Notice of Motion application dated 7th March 2017 is dismissed in its entirety
  2. 2.Costs of the application awarded to the 2nd to 84th Respondents

Authorities

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Legislation

  • Retirement Benefits ActSection 46
  • Retirement Benefits ActSection 47(1)
  • Retirement Benefits ActSection 48(1)
  • Retirement Benefits ActSection 49
  • Retirement Benefits (Tribunal) Rules2008
  • Income Tax ActGeneral compliance

Cases cited (5)

  • Pastoli Vs Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • David Sironga Ole Tukai Vs Francis Arap Muge & 2 Others
    (2014) eKLR
  • Republic Vs County Government of Mombasa & Another, Ex-parte Clement Muturi Kigani
    (2018) eKLR
  • Kenya National Examination Council Vs Republic Ex-parte Geoffrey Gathenji Njoroge & 9 Others
    (1997) eKLR
  • Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 others
    [2012] eKLR
On appeal from
Retirement Benefits Appeals Tribunal
Nairobi Civil Appeal No. 8 of 2010
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the Law Reform Act / Constitution (orders of certiorari and mandamus) against a decision of the Retirement Benefits Appeals Tribunal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "National Bank of Kenya Staff Retirement Benefits Scheme & another v Retirement Benefits Appeal Tribunal & others [2020] KEELRC 1715 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion dated 7th March, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1715/eng@2020-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.