Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNot stated in the judgment· [2025] KEELRC 1397 (KLR)

Menya v Retirement Benefits Authority & 2 others (Employment and Labour Relations Judicial Review E031 of 2024) [2025] KEELRC 1397 (KLR)

Employment and Labour Relations Court (Judicial Review Division)
14 May 2025
HWHellen Wasilwa
2,475 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A former employee's judicial review case over pension dues was struck out because he skipped the mandatory court permission step before filing.

What this practically means

#

Executive summary

#
The Applicant, a former employee of the 2nd Respondent from 1st February 1990 to 20th June 1994, filed an undated Notice of Motion by way of judicial review seeking, among other things, detailed calculations of his provident fund dues of Kshs. 65,692, unpaid salary for June 1994 with house, shift and leave allowances and interest, three months' salary in lieu of notice of termination, and orders restraining interference with his constitutional rights. His complaint to the 1st Respondent (Retirement Benefits Authority) was declined for want of jurisdiction, and his appeal was dismissed by the Retirement Benefits Appeals Tribunal on 14th December 2023. The Respondents opposed the application: the 1st Respondent said the dispute fell outside Section 46 of the Retirement Benefits Act and that the application was defective for lack of leave under Order 53(1) of the Civil Procedure Rules and for failure to annex the impugned decision; the 2nd Respondent said terminal dues were paid and the loan recovered per policy, and that the claim was time-barred under the Limitation of Actions Act; the 3rd Respondent said it had no relationship with the Applicant, its engagement having begun in 2008. The court held that Order 53(1) is mandatory and the Applicant never sought or obtained leave before filing the substantive judicial review motion. It found the application improperly before the court, struck it out, and made no orders as to costs.

Key legal issues

#
01

Whether the judicial review application was properly instituted without prior leave of the court

Holding

The application was fatally defective because the Applicant never sought or obtained leave as mandated by Order 53(1) of the Civil Procedure Rules, and the application was therefore struck out.

Reasoning

The court examined how the Applicant approached the court and found that he filed a certificate of urgency with a supporting affidavit without any prior application for leave. Order 53(1) of the Civil Procedure Rules is couched in mandatory terms and requires leave before a substantive judicial review motion is filed. The 1st Respondent had relied on authority confirming that leave is a precondition to filing such a motion. In the circumstances the court found the application improperly before the court and struck it out, with no order of costs.

p. 6
02

Whether the reliefs sought were capable of being granted in judicial review proceedings

Holding

The reliefs sought were employment-related remedies (unpaid salary, allowances, salary in lieu of notice, provident fund calculations) rather than the prerogative orders of mandamus, certiorari or prohibition, supporting the Respondents' contention that the matter did not belong in judicial review.

Reasoning

Both the 1st and 3rd Respondents submitted that the prayers sought were not in the nature of judicial review writs but employment-related remedies arising from a private dispute between the Applicant and his former employer. Judicial review under the Fair Administrative Actions Act interrogates the decision-making process, not the merits of private grievances. The court noted these submissions but ultimately rested its decision on the absence of leave under Order 53(1).

p. 4

Legal principles established

#
  • Leave under Order 53(1) of the Civil Procedure Rules is a mandatory precondition to filing a substantive judicial review application; failure to obtain leave is a breach of the law that renders the application improperly before the court.

Court orders

#
  1. 1.The Judicial Review application struck out for being improperly before the court
  2. 2.No orders of costs
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and the Fair Administrative Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Menya v Retirement Benefits Authority & 2 others (Employment and Labour Relations Judicial Review E031 of 2024) [2025] KEELRC 1397 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1397/eng@2025-05-14

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