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ELRCDismissedNot stated in the judgment· [2023] KEELRC 3216 (KLR)

Mundwetugi v Kingland Trust & Benefits Services Limited & 2 others (Cause 460 of 2019) [2023] KEELRC 3216 (KLR)

Employment and Labour Relations Court
7 December 2023
BOByram Ongaya
1,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed a pension claim because Kenyan law requires such disputes to go through the Retirement Benefits Act review and tribunal process first.

What this practically means

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Executive summary

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The claimant, a former employee of the 3rd respondent bank, sued for his accrued pension, an order for accounts, declarations on the mode of calculating his pension and on who paid the sums received in October 2002, together with interest and costs. His services were terminated in August 1998 following a national bank employees' strike; terminal dues were partly paid pursuant to an award in Industrial Cause No. 77 of 1999, with pension deferred until he attained the mandatory retirement age of 55 years on April 19, 2005. The respondents maintained that his full entitlement of Kshs.1,666,148 was paid in 2002 (Kshs.1,400,000 applied to a staff loan and Kshs.266,148 credited to his account), and the Retirement Benefits Authority by letter of October 13, 2008 considered the matter finalized. The respondents raised a preliminary objection that the Court lacks jurisdiction because the Retirement Benefits Act (sections 46, 47 and 48) provides an internal review and tribunal mechanism for retirement benefits disputes. The Court agreed, holding that the claimant's grievance is a pension dispute for which the prescribed forum is the tribunal under the Retirement Benefits Act, not the ELRC. The suit was dismissed with each party bearing its own costs, the Court noting the dispute's history spanning over 20 years.

Key legal issues

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Whether the Court lacks jurisdiction owing to the alternative dispute resolution mechanism under the Retirement Benefits Act

Holding

The preliminary objection succeeds; the dispute over pension belongs before the authorities/tribunal under the Retirement Benefits Act, not this Court, and the suit is dismissed.

Reasoning

The Court accepted that the payments made in 2002 related to terminal dues following Industrial Cause 77 of 1999, leaving a live pension dispute. Because the claimant is dissatisfied with the trustees' decision regarding his pension, sections 46(1) and 46(2) of the Retirement Benefits Act require him to seek review by the Chief Executive Officer and appeal to the Tribunal. The proper forum is therefore the tribunal established under rules made pursuant to the Retirement Benefits Act, and the suit is liable to dismissal.

Legal principles established

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  • Where the Retirement Benefits Act prescribes a review and tribunal mechanism for pension disputes, the ELRC lacks jurisdiction to entertain such a claim directly
  • A member dissatisfied with a trustee's decision must seek review by the Chief Executive Officer and appeal to the Tribunal within 30 days

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear own costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011 (jurisdiction challenged under the Constitution of Kenya and the Act; Retirement Benefits Act ss 46-48 alternative dispute resolution mechanism)

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, "Mundwetugi v Kingland Trust & Benefits Services Limited & 2 others (Cause 460 of 2019) [2023] KEELRC 3216 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3216/eng@2023-12-07

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