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Supreme CourtStruck OutPetition (Application) E011 of 2025

Standard Chartered Bank Kenya Limited & 10 others v Retirement Benefits Appeal Tribunal & 3 others

Supreme Court of Kenya
5 September 2025
2,141 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Supreme Court cannot hear appeals that only allege constitutional violations without actual constitutional interpretation.

What this practically means

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The Supreme Court of Kenya struck out an appeal by 628 workers against the Retirement Benefits Authority. The workers had challenged a tribunal decision through judicial review, citing constitutional rights. But the High Court and Court of Appeal only dealt with procedural issues under the Retirement Benefits Act and civil procedure rules, not the Constitution itself. The Supreme Court ruled that merely mentioning constitutional articles is not enough to bring a case to it. The appeal must actually involve interpreting or applying the Constitution. This case clarifies the strict limits on what the Supreme Court can hear.

Executive summary

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This ruling by the Supreme Court of Kenya (a five-judge bench) determined preliminary objections challenging the Court's jurisdiction to hear an appeal from the Court of Appeal. The petitioners, Fred Waswa and 627 others, had sought to appeal a Court of Appeal decision that upheld the High Court's dismissal of their judicial review application challenging proceedings before the Retirement Benefits Authority Appeals Tribunal (RBAT). The petitioners argued that the appeal involved constitutional interpretation and application, thus invoking the Supreme Court's jurisdiction under Article 163(4)(a) of the Constitution. They also sought a stay of execution of the RBAT judgment pending the appeal. The respondents, including the 3rd respondent (pensioners represented by Grace Njeri Ndirango), raised preliminary objections contending that the appeal did not involve the interpretation or application of the Constitution, and that the Retirement Benefits Act does not provide for appeals against RBAT decisions. The Supreme Court, after examining the records from the lower courts, found that the High Court and Court of Appeal had confined themselves to issues of statutory interpretation under the Retirement Benefits Act and the scope of judicial review under Order 53 of the Civil Procedure Rules. The Court held that the mere allegation of constitutional violations is insufficient to invoke its jurisdiction; the superior courts below must have actually interpreted or applied the Constitution. Relying on its precedents in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another and Dande & 3 others v The Inspector General, National Police Service & 5 others, the Court upheld the preliminary objections, struck out the petition of appeal, dismissed the application for stay, and ordered the petitioners to bear the respondents' costs. The security deposit of Kshs 6,000 was ordered refunded to the petitioners.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to hear and determine the intended appeal under Article 163(4)(a) of the Constitution.
  2. 2.Whether the application for stay of execution meets the threshold for grant of stay.

Key legal issues

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Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal from the Court of Appeal where the dispute primarily involved judicial review under Order 53 of the Civil Procedure Rules and the interpretation of the Retirement Benefits Act, despite the petitioners alleging constitutional violations.

Holding

The Supreme Court lacks jurisdiction because the appeal did not involve the interpretation or application of the Constitution; the superior courts below did not interpret or apply the Constitution, and the mere allegation of constitutional violations is insufficient.

Reasoning

The Court examined the records from the High Court and Court of Appeal and found that the High Court interrogated whether the proceedings of the 1st respondent were ultra vires the Act, and the Court of Appeal confined itself to whether the judge erred and whether a merit review should have been conducted. The reliefs sought were for certiorari and prohibition under Order 53. Although the petition cited constitutional articles, the courts below did not interpret or apply them. The Court relied on its precedent in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, which requires that the appeal must originate from a case where issues of contestation revolved around the interpretation or application of the Constitution. The Court also distinguished its decision in Dande, noting that the judicial review application was brought under Order 53 and did not claim constitutional violations in a manner that required merit review.

Legal principles established

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  • Only appeals involving actual interpretation or application of the Constitution can go to the Supreme Court under Article 163(4)(a).
  • Mere allegations of constitutional violations do not give the Supreme Court jurisdiction; the lower courts must have interpreted the Constitution.
  • Judicial review under Order 53 of the Civil Procedure Rules is limited to process and procedure, not merit review of decisions.
  • A party who files a judicial review case without claiming constitutional violations cannot later argue the case required constitutional interpretation.
  • The Supreme Court will examine the actual record of lower courts to determine if they interpreted the Constitution, not just the pleadings.

Court orders

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  1. 1.The Preliminary Objections dated 7th April 2025 and 14th April 2025 be and are hereby upheld.
  2. 2.The Notice of Motion dated 21st March 2025 be and is hereby dismissed.
  3. 3.The Petition of Appeal No. E011 of 2025 be and is hereby struck out.
  4. 4.The petitioners shall bear the respondent's costs.
  5. 5.The sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the petitioners.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal
Civil Appeal No. E847 of 2023
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Stay of execution of the Judgment and Decree by the Retirement Benefits Appeal Tribunal delivered in RBAT Appeal No. 8 of 2021 on 28th April 2025.

The Court lacked jurisdiction to hear the appeal, and the application for stay was therefore dismissed.

Stay of further proceedings in RBAT Appeal No. 8 of 2021.

The Court lacked jurisdiction to hear the appeal, and the application for stay was therefore dismissed.

Costs

The petitioners shall bear the respondent's costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Article must be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution can be entertained by the Supreme Court...
p. 4 Supreme Court jurisdiction under Article 163(4)(a)
The mere allegation of constitutional violations cannot bring the appeal within the ambit of this Court's jurisdiction under Article i63(4)(a).
p. 5 Jurisdiction of the Supreme Court
It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution, then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken...
p. 4 Scope of judicial review and merit review
The Preliminary Objections dated 7th April 2025 and 14th April 2025, filed on 8th April 2025 and 14th April 2025 respectively, be and are hereby upheld;
p. 5 Final orders on preliminary objections
The Petition of Appeal No. E011 of 2025 dated 21st March 2025 and filed on 24th March 2025 be and is hereby struck out;
p. 5 Final order striking out the appeal

Key timeline

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2025-03-21
Petitioners filed Notice of Motion and Petition of Appeal at the Supreme Court seeking stay and to appeal the Court of Appeal decision.
2025-04-07
Respondents filed preliminary objections challenging the Supreme Court's jurisdiction to hear the appeal.
2025-04-14
Additional preliminary objections filed by other respondents.
2025-05-22
Supreme Court ruling delivered upholding preliminary objections, striking out the appeal, and dismissing the stay application.

Practical implications

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For lawyers

Draft appeals with constitutional substance

When planning an appeal to the Supreme Court, ensure the lower courts actually interpreted or applied a constitutional provision. Merely citing constitutional articles in pleadings is insufficient. Review the High Court and Court of Appeal judgments to confirm they engaged with constitutional issues. If they only applied statutes or procedural rules, the Supreme Court will strike out the appeal. Consider filing a constitutional petition instead of judicial review if you want to preserve Supreme Court jurisdiction.

For businesses

Retirement benefits disputes limited to tribunals

Disputes with the Retirement Benefits Authority Appeals Tribunal will likely end at the Court of Appeal. The Supreme Court will not hear appeals that only involve the Retirement Benefits Act or judicial review procedures. Businesses should prepare for final resolution at the Court of Appeal level. If constitutional issues are genuinely at stake, ensure they are raised and decided by the lower courts from the start, not added later to create Supreme Court jurisdiction.

For individuals

Know your appeal route for pension cases

If you challenge a Retirement Benefits Authority decision through judicial review, your case will be limited to procedural fairness, not the merits of the decision. The Supreme Court will not hear your appeal unless the lower courts actually interpreted the Constitution. To preserve a possible Supreme Court appeal, you must file a constitutional petition that requires the court to interpret constitutional rights, not just a judicial review under Order 53. Plan your legal strategy from the beginning.

Frequently asked questions

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Can I appeal a Retirement Benefits Authority decision to the Supreme Court in Kenya?+

Only if the High Court and Court of Appeal actually interpreted or applied the Constitution in your case. If they only applied the Retirement Benefits Act or judicial review rules, the Supreme Court will not hear your appeal. You must show that the lower courts engaged with constitutional provisions, not just that you cited them.

What is the difference between judicial review and constitutional petition in Kenya?+

Judicial review under Order 53 of the Civil Procedure Rules focuses on the process and procedure of a decision, not its merits. A constitutional petition asks the court to interpret or apply the Constitution to protect your rights. Only constitutional petitions can lead to Supreme Court appeals under Article 163(4)(a).

How do I know if my case involves constitutional interpretation in Kenya?+

Check the judgments of the High Court and Court of Appeal. If they analyzed constitutional articles, discussed their meaning, or applied them to the facts, your case involves constitutional interpretation. If they only discussed statutes like the Retirement Benefits Act or procedural rules, it does not. The Supreme Court will review the actual reasoning, not just your pleadings.

What happens if the Supreme Court strikes out my appeal in Kenya?+

Your appeal is dismissed, and you must pay the other side's legal costs. Any security deposit you paid when filing the appeal will be refunded. You cannot re-file the same appeal. You should consult a lawyer to explore other options, such as filing a constitutional petition in the High Court if you have genuine constitutional issues.

Cite this brief

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Cite this brief

Caselaw, "Standard Chartered Bank Kenya Limited & 10 others v Retirement Benefits Appeal Tribunal & 3 others", Case Analysis (2025). Petition (Application) E011 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/55/eng@2025-09-05

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