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ELRCStruck OutNot stated in the extract· [2023] KEELRC 2993 (KLR)

Bosire v Telkom Kenya Limited & another (Cause E016 of 2023) [2023] KEELRC 2993 (KLR)

Employment and Labour Relations Court
23 November 2023
CBC. N. Baari
2,144 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it cannot hear pension disputes by former employees; such claims belong with the Retirement Benefits Authority, and late claims fail.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (C. N. Baari J, 23 November 2023) determines a preliminary objection dated 13 April 2023 by the 2nd Respondent, a retirement benefits scheme, seeking striking out of the Claimant's suit for want of jurisdiction. The Claimant, a former employee of the 1st Respondent who left service in 2011 and received pension benefits from the 2nd Respondent in July 2019, complained of salary underpayment over six months (paid on a lower grade than his Ksh 85,000 scale) which depressed his pension, and of miscalculation and non-remittance. The 2nd Respondent argued that Section 12 of the ELRC Act does not cover pension disputes; that Sections 46 and 48 of the Retirement Benefits Act channel such disputes to the RBA Chief Executive Officer and the Retirement Benefits Appeals Tribunal; and that no employer-employee relationship existed with it. The Claimant in person relied on Section 12 ELRC Act and Section 87 Employment Act, characterising the dispute as breach of his employment contract, citing Albert Chaurembo Mumba and Sarah Mang'oli. Applying Mukisa Biscuit and Owners of Motor Vessel Lilian 'S', and adopting the Supreme Court's holding in Albert Chaurembo Mumba that a pensioner's relationship with the sponsor is trustee-beneficiary rather than employer-employee, the Court held it had no jurisdiction over the pension dispute, which should have gone to the RBA mechanisms; it further held the suit time-barred under Section 90 of the Employment Act, the cause of action having accrued around 2014 yet the suit filed in March 2023. The preliminary objection succeeded; the suit was struck out in its entirety with no orders on costs.

Key legal issues

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01

Whether the ELRC has jurisdiction over a dispute concerning pension benefits paid under a retirement benefits scheme

Holding

The Court has no jurisdiction; a dispute with a pension scheme administrator after cessation of employment is governed by the Retirement Benefits Act review and appeal mechanisms (Sections 46 and 48), not Section 12 of the ELRC Act.

Reasoning

The claimant left service in 2011 and received pension benefits in 2019; following the Supreme Court in Albert Chaurembo Mumba, a pensioner's relationship with the sponsor is trustee-beneficiary, not employer-employee. Section 12(1) ELRC Act covers disputes arising out of employment between employer and employee, which this is not. Sections 46 and 48 RBA prescribe the forum for pension disputes.

p. 5
02

Whether the suit is time-barred

Holding

The suit is statute-barred under Section 90 of the Employment Act, the cause of action having accrued around 2014 while the suit was filed in March 2023.

Reasoning

Section 90 requires employment-based actions to be commenced within three years of the act or default complained of. The alleged salary underpayment accrued three years after 2011 (i.e., 2014), and the suit was filed in March 2023, well outside the limitation period, independently ousting the Court's jurisdiction.

p. 5

Legal principles established

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  • Once a pensioner leaves employment, the employer-employee relationship ends and the relationship is governed by the Retirement Benefits Act and trust law, outside the ELRC's jurisdiction
  • A court must down tools the moment it finds it lacks jurisdiction

Court orders

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  1. 1.The preliminary objection succeeds and the suit is struck out in its entirety
  2. 2.No orders on costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(1)
  • Retirement Benefits ActSection 46(1)
  • Retirement Benefits ActSection 47
  • Retirement Benefits ActSection 48(1)
  • Employment ActSection 87
  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Constitution of KenyaArticle 162(2)
  • Trustee ActCap 167

Cases cited (5)

  • Stafi Pension Fund & Kenya Commercial Bank Stafi Retirement (DC) Scheme 2006 & another v Ann Wangui Ngugi & 524 others
    [2018] eKLR
  • Albert Chaurembo Mumba & 7 others as registered Trustees of Kenya Ports Authority Pensions Scheme vs. Maurice Munyao & 148 others
    [2019] eKLR
  • Sarah Mang'oli v Kenya Medical Research Institute & Another
    [2020] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd
    [1969] EA 696
  • Owners of Motor Vessel Lilian "S" v Caltex Oil
    (1989) eKLR
Jurisdiction invoked
Section 12(1) of the Employment and Labour Relations Court Act; Article 162(2) of the Constitution

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, "Bosire v Telkom Kenya Limited & another (Cause E016 of 2023) [2023] KEELRC 2993 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2993/eng@2023-11-23

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