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High CourtDismissedSuccession Cause (petition dated 15th May 2019; application dated 24th October 2019)· [2020] KEHC 9889 (KLR)

ROBERT TOM MARTINS KIBISU v ITSL COMPANY LIMITED

High Court of Kenya
30 June 2020
JOJ. N. Onyiego
4,047 words in judgment
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·~16 min to read original · ~4 min brief

The bottom line

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Pension death benefits are not part of a deceased person's estate; disputes must be handled under the Retirement Benefits Act.

What this practically means

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Executive summary

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Tabitha Njoki Ngigi died intestate on 3rd November 2018. Robert Tom Martins Kibisu, claiming to be her widower after over ten years of cohabitation, issued a citation for letters of administration, which the deceased's children (Jacqueline Wairimu Wanyoike, Samuel Wainaina Wanyoike, Daniel Ngigi Wanyoike and a minor) opposed, describing him as a boyfriend and stranger to the estate. The children filed their own petition listing assets valued at Kshs. 10 million; Kibisu objected, valuing the estate at over Kshs. 25 million and cross-petitioning for a grant as widower. He also applied under Section 26 of the Law of Succession Act against the pension trustees, ITSL Company Ltd and Jane Juma, seeking Kshs. 50,000 monthly provision (or 20% one-off) from the deceased's group life and pension benefits and an account of the trust fund. The trustees filed a preliminary objection contending the application breached the dispute resolution mechanism under the Retirement Benefits Act (Sections 46, 47, 48) and the Fair Administrative Action Act. The court framed three issues and, applying Mukisa Biscuit, held the objection raised pure points of law on undisputed facts. Relying on Section 36A of the RBA, Speaker v Karume, Kamau v Raichura and Re Estate of Carolyne Achieng' Wagah, the court held pension death benefits do not form part of the estate and the probate court lacks jurisdiction; the applicant must exhaust the RBA mechanism and, if aggrieved, pursue judicial review. The preliminary objection was upheld, the application dismissed, each party bearing own costs, with the objection proceedings on entitlement to the grant to proceed.

Key legal issues

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01

Whether the preliminary objection raised a pure point of law

Holding

Yes; the objection rests on undisputed facts and the applicable-law question, so it satisfies the Mukisa Biscuit test.

Reasoning

Applying the Mukisa Biscuit definition, the court found the objection turns on whether the Retirement Benefits Act or the Succession Act governs the claim. The underlying facts (membership of the scheme, trusteeship, nomination excluding the applicant) are undisputed, so the objection is a point of law that would dispose of the application absolutely.

p. 5
02

Whether the High Court has jurisdiction over the claim for provision out of pension benefits

Holding

No; the claim must be lodged under the Retirement Benefits Act (Sections 46 and 47) and only then challenged by judicial review.

Reasoning

Section 36A of the RBA excludes death benefits from the estate. The applicant, claiming entitlement as a dependant, is a 'member' under Section 2 and must first seek review by the Chief Executive Officer of the RBA and then appeal to the Tribunal within 30 days, per Karume and Kamau v Raichura. The probate court has no jurisdiction over such benefits.

p. 6

Legal principles established

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  • Pension benefits payable on a member's death do not form part of the estate and cannot be distributed by the probate court; disputes over them must follow the Retirement Benefits Act mechanism.
  • Where a statute provides an internal dispute resolution mechanism, parties must exhaust it before approaching the High Court.

Court orders

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  1. 1.The notice of Preliminary Objection dated 10th December 2019 is upheld.
  2. 2.The application dated 24th October 2019 is dismissed.
  3. 3.Each party to bear own costs.
  4. 4.Parties to proceed and prosecute the objection proceedings to determine who is entitled to take out a grant of representation.

Authorities

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Legislation

  • Constitution of KenyaArticles 165(3), (4), (5), (6), 169
  • Law of Succession ActSection 26
  • Retirement Benefits ActSections 2, 36A, 46, 47, 48
  • Fair Administrative Action ActSections 3(1), 7(1)(b), 9(3), 7, 9
  • Civil Procedure ActSections 1A, 1B, 3
  • Trustees Act
  • Civil Procedure RulesOrder 51 rule 14(1)(2) & (3)

Cases cited (9)

  • Mukisa Biscuit Company v West End Distributors Limited
    (1969) JR. 1098

    Definition of a preliminary objection as a pure point of law

  • Owners of Motor Vessel "Lilian S" vs Caltex One (Kenya) Limited
    (1989) KLR 1

    Jurisdiction must be decided at the earliest opportunity; jurisdiction is everything

  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application No. 2/2011

    Assumption of jurisdiction is regulated by the Constitution, statute and precedent

  • Jimmy R. Kavilu and 16 Others v Stanbic Bank Kenya Ltd and 7 Others
    (2019) eKLR

    No jurisdiction over pension schemes and trustees unless by judicial review of the Tribunal's decision

  • Joseph Kimani Kamau v Sundeep K. Raichura and 5 others (sued as the Trustees of Alexander Forbes Retirement Fund (Provident Section))
    2019 eKLR

    Disputes between a member and a pension fund must go through Section 46(1) RBA process then the Tribunal

  • Speaker of National Assembly v Karume
    (1992) eKLR

    Where a clear procedure of redress is prescribed, it must be strictly followed

  • Geoffrey Muthinja Kabiru and 2 Others vs Samuel Munga Henry and 1756 Others

    Parties bound to follow prescribed procedures

  • Okiya Omtatah Okoiti vs Kenya Power and Lighting Company and 10 Others
    Petition No. 14 of 2017 (2018) eKLR

    Exhaustion of prescribed procedures

  • Re Estate of Carolyne Achieng' Wagah (Deceased)
    (2015) eKLR

    Pension benefits do not form part of the estate; probate court has no jurisdiction over them

Jurisdiction invoked
Article 165(3) of the Constitution; Law of Succession Act (Section 26); Retirement Benefits Act

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, "ROBERT TOM MARTINS KIBISU v ITSL COMPANY LIMITED", Case Analysis (2020). Succession Cause (petition dated 15th May 2019; application dated 24th October 2019). Source:

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