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ELRCOtherHCCC 781 of 2003 (transferred to ELRC 6th February 2020)· [2021] KEELRC 1377 (KLR)

Anthony Kabimba Gusinjilu & 112 others v Tryponomiasis Research Institute [2021] KEELRC 1377 (KLR)

Employment and Labour Relations Court (formerly High Court of Kenya)
29 June 2021
NMNzioki wa Makau
1,028 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled it has no power to hear pension disputes between retirees and scheme trustees, so the case returns to the High Court.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nairobi, delivered by Nzioki wa Makau J on 29th June 2021, dealt with a motion dated 16th December 2009 by the Claimants seeking to set aside ex parte proceedings and a judgment/decree of 10th July 2009, under which the Respondent was ordered to pay Kshs. 41,987,120/80 in retirement benefits, golden handshake, costs and interest. The suit, originally HCCC 781 of 2003 in the High Court, was transferred to the ELRC by consent of the parties on 6th February 2020. The court traced the procedural history, including the Court of Appeal's Ruling of 25th October 2019 reinstating the motion and directing its expeditious hearing by the High Court. The core ruling was jurisdictional: relying on the Supreme Court's decision in Albert Chaurembo Mumba v Maurice Munyao & 148 Others, the court held that a pension claim, involving the relationship of trustee and beneficiary rather than employer and employee, falls outside the jurisdiction conferred on the ELRC by the Employment and Labour Relations Court Act. The parties' consent to the transfer could not confer jurisdiction. The court directed that the matter be dealt with as the Court of Appeal indicated, with the file to be mentioned on 5th July 2021 before the Presiding Judge of the Commercial Division of the High Court for hearing and determination of the motion. No costs order was made.

Key legal issues

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01

Jurisdiction of the ELRC over pension claims between former employees/pensioners and their former employer/trustee

Holding

The ELRC lacks jurisdiction over a purely pension claim; parties cannot confer jurisdiction by consent and such a claim must be adjudicated by the High Court

Reasoning

Relying on the Supreme Court's decision in Albert Chaurembo Mumba, the court noted that once a member leaves employment and becomes a pensioner, the relationship becomes one of trustee and beneficiary governed by the Retirement Benefits Act, the Trustee Act and general trust law. The Employment and Labour Relations Court Act confers no jurisdiction on the ELRC to resolve issues between pension scheme trustees and members. Accordingly, the consent transfer from the High Court was ineffective on jurisdiction.

p. 2

Legal principles established

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  • Consent of parties cannot confer jurisdiction on a court where none exists by law; a purely pension claim cannot be transferred to the ELRC
  • The ELRC has no jurisdiction to resolve disputes between trustees of a pension scheme and members/pensioners of the scheme

Court orders

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  1. 1.The matter must be dealt with as directed by the Court of Appeal in its Ruling of 25th October 2019 - expeditious disposal of the Notice of Motion dated 16th December 2009
  2. 2.The file to be mentioned on 5th July 2021 before the Presiding Judge of the Commercial Division of the High Court for hearing and determination as directed by the Court of Appeal

Authorities

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Legislation

  • Employment and Labour Relations Court Actnot specified
  • Retirement Benefits Actnot specified
  • Trustee ActCap 167

Cases cited (1)

  • Albert Chaurembo Mumba & 7 Others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 Others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme)
    [2019] eKLR
On appeal from
Court of Appeal
Jurisdiction invoked
Jurisdictional limits of the ELRC as per the Employment and Labour Relations Court Act and the Supreme Court decision in Albert Chaurembo Mumba; consent of parties cannot confer jurisdiction

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, "Anthony Kabimba Gusinjilu & 112 others v Tryponomiasis Research Institute [2021] KEELRC 1377 (KLR)", Case Analysis (2021). HCCC 781 of 2003 (transferred to ELRC 6th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1377/eng@2021-06-29

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