Board of Trustees, Kenya Broadcasting Corporation

2. 3. Upon the Court granting the prayer for joinder, the Claimant’s supporting adavits and further adavits hereto be deemed as responses to the Respondent’s Application dated 19th January 2026; and leave be granted to the Applicants to le any such further material as may be necessary for the hearing of the Claimant’s Application. 4. The Court hereby orders that the annexed computations led by the Claimant and the KBC be veried, reconciled and adopted by this Court. 5. The costs for this Application be provided for. The Interested Parties further led a Notice of Motion application dated 12th March 2026 seeking orders THAT: 1. Pending the hearing and determination of this Application, the Court hereby extends the order staying the execution of the consent between the Claimant and the KBC adopted by Hon. Hellen Wasilwa on 9th March 2026; 2. This Application be referred to appropriate Alternative Dispute Resolution in the rst instance pursuant to Rule 19 of the Employment and Labour Relations Court (Procedure) Rules. 3. The Court hereby reviews the order made by Hon. Hellen Wasilwa on 9th March 2026 by setting aside the consent between the Claimant and the KBC in its entirety; 4. The Court hereby orders that the computations led by the Claimant and the KBC (annexed by to this Application) be veried, reconciled and adopted by this Court. 5. The costs for this Application be provided for. Interested Parties/ Applicants’ Case 3. The Interested Parties/Applicants aver that they are members of the Claimant Scheme with a direct and identiable stake in the outcome of this suit. 4. The 1st Interested Party was employed by the Respondent as a Radio Producer from 1994, rising to the position of Reporter, and he retired in October 2024. He states that to date he has not received his lump sum pension payment, and even members who retired as far back as 2021 remain unpaid, a state of aairs he describes as a crisis within the Scheme. 5. The Applicants set out the background to the substantive judgment delivered by Hon. Lady Justice Maureen Onyango on 27th April 2022, which they contend prescribed a clear formula for computation of the judgment sum: unremitted employee and employer contributions together with rental income for the years 2008 to 2018 were to be subjected to compound interest at 3% per month pursuant to Section 53 of the Retirement Benefits Act, with costs of the suit awarded to the Claimant with interest at court rates. 6. Pursuant to the Court's directions, the parties thereafter led their respective computations, the Claimant's totalling Kshs. 18,421,704,159.11 against the Respondent's gure of Kshs. 18,045,740,788.84. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 2

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7. It is the Applicants' case that shortly thereafter, the Board of Trustees of the Scheme, acting in concert with the senior management and Board of Directors of the Respondent, sought to have the Scheme's advocate on record, Morara Omoke, reduce the led computation from Kshs. 18,421,704,159.11 to Kshs. 6,369,152,342.26, a reduction of approximately 65.4%. However, the Advocate on record for the Scheme declined to aid the trustees in this illegality in line with his primary duty to protect the interests of the members of the scheme. 8. The Applicants contend that the consent purportedly entered into on 15th January 2026 between the Claimant and the Respondent nonetheless settled the matter at Kshs. 1,511,161,174.27, representing a reduction of 91.8% from the Claimant's led computation, notwithstanding the consent's own recital that the sum reected "the accurate and true computations of the sums outstanding and payable." 9. It is the Applicants’ case that the said consent comprises computations that are inaccurate, grossly miscomputed and calculated to disadvantage the members of the Claimant including themselves. 10. The Applicants assert that, contrary to its own wording, the consent comprises computations that are inaccurate, grossly miscomputed and calculated to disadvantage the members of the Claimant; and completely ignore the formula mandated in the judgment delivered by Hon. Lady Justice Maurine Onyango on 27th April 2022 in that it: subjects unremitted contributions to simple interest per annum rather than the statutory rate of 3% compounded monthly; omits unremitted employee contributions, employer contributions and rental income for the years 2008 to 2018; omits costs of the suit in their entirety; and fails to subject certain essential ingredients of the claim to interest at all. 11. On this basis, they contend that the consent is an illegality founded on material misrepresentation incapable of being adopted or validated by the Court, and that by lodging it the Claimant is in breach of its duciary duty to the members of the scheme. 12. It is further the Applicants’ case that the consent, which reduces the judgment sum by a whopping percentage of 91.8%, has never been placed before the Scheme's membership for their concurrence and approval. 13. The Applicants state that despite their application dated 28th January 2026 being on record and their advocates being present and protesting in court on 9th March 2026, the Court proceeded to adopt the consent without hearing them, an act they characterize as a denial of audience and a violation of their right to a fair hearing under the Constitution. 14. They further aver that the adoption was carried out notwithstanding subsisting orders of Lady Justice Maureen Onyango dated 16th November 2022 staying proceedings in the matter. 15. It is the Applicants’ case that unless this Court admits them as Interested Parties and stays the adoption of the consent pending accurate computations with their input, the Interested Parties and other members of the Claimant stand to suer serious injustice and loss of livelihood as the pension due to them stands diminished. 16. They maintain that this Court has power to include them as interested parties at any stage of the proceedings, as their presence before the court is necessary in order to enable the court eectually and completely adjudicate upon and settle all outstanding questions involved in the claim. 17. In their Further Adavit sworn on 11th May 2026, the Applicants aver that there exists a Notice of Withdrawal dated 26th March 2026 which disposed o the issue concerning the 1st Interested Party. 18. They assert that the Court retains unfettered discretion to join a party at any stage of proceedings once the threshold for joinder is met, therefore, the suggestion that their application was defeated by the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 3

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adoption of the consent is misconceived, since the consent was adopted while the joinder application was already on record. Even in the event that the application was not on record, the issues raised in the application warrant the setting aside of the consent upon joinder into this case. 19. It is the Applicants’ case that the decisions of the Claimant are not cast on stone especially when they are fraudulently taken to disenfranchise the members as it is the case herein. The act of conspiracy to reduce the sum due to the pension scheme on account of is a clear breach of duciary duty, an illegality and a deviation from the rules governing trusts warranting this intervention. Without a doubt, beneciaries have a right to approach courts to protect the trust where trustees violate their duciary duties. 20. The Applicant avers that the application is brought in good faith to protect the savings of retirees in the interest of justice and fairness, and that the Court is duty-bound not to lock out a litigant with a live grievance while an opportunity to there is still an opportunity to bring up the same. Claimant’s Case 21. In opposition to the application, the Applicant led a replying adavit dated 14th April 2026, sworn by its Chairperson, Martin Nyongesa King’asia. 22. The Claimant avers that the application by the Interested Parties is fundamentally misconceived both in fact and in law, being predicated upon a misapprehension of the nature of the proceedings, the role of the Trustees, and the legal framework governing retirement benets schemes. 23. The Claimant avers that serious concerns have arisen regarding the circumstances under which the adavit sworn by the 1st Applicant on or about 26th January 2026 was procured. It maintains that there exists a formal complaint lodged with the DCI against the 1st Respondent, Mr. Morara Omoke, disclosing that he approached and induced the 1st Applicant, through a promise of payment, to swear the said adavit for purposes of challenging the Consent recorded on 15th January 2026. 24. The Claimant contends that the said complaint discloses allegations of inducement through promise of nancial benet, procurement of adavit evidence intended to inuence court proceedings, and interference with the due course of justice, and that it is in possession of material evidence in support thereof, including electronic communications and audio recordings availed to the relevant authorities. 25. While conceding that these allegations remain the subject of ongoing investigation and have not been judicially determined, the Claimant asserts that their existence, supported by prima facie material, raises serious and legitimate concerns as to the integrity and independence of the 1st Applicant's adavit, and that this may explain its subsequent withdrawal. 26. The Claimant further contends that, given the similarities in content and framing between the supporting adavits, similar external inuence may have extended to the 2nd Applicant, and that the Application bears the hallmarks of an externally driven attempt to reopen and destabilize a matter already lawfully resolved between the proper parties. 27. It was stated that following the Judgment of 27th April 2022 directing remittance of outstanding pension contributions with interest, the Claimant and the 2nd Respondent engaged in a reconciliation process, taking into account all unremitted contributions, the Judgment, and the Attorney General's advisory on computation of interest, culminating in a Consent dated 15th January 2026 adopted as an order of the Court. 28. It is the Claimant's case that this Consent constitutes a valid and subsisting court order. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 4

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29. The Claimant contends that the Applicants, not having been parties to the suit nor participants in the reconciliation process, lack any proximate legal interest, specic prejudice, or distinct contribution to justify joinder, and that individual members have no legal standing to represent the general membership absent demonstrated authorization, fraud, bad faith, or refusal by the Trustees to act. 30. The Claimant further avers that the Applicants have not exhausted internal or statutory dispute resolution mechanisms, and that their allegations of an illegal or miscomputed Consent are unsubstantiated by any expert or actuarial evidence, their reliance on an earlier gure of approximately Kshs. 18 billion being misleading, selective, and led by the 1st Applicant without instructions. 31. It is therefore the Claimant’s case that the Court is functus ocio on the substantive issues, the Judgment having been delivered and the Consent adopted, and that the Application, led after the fact, amounts to an abuse of court process. 1st Respondent’s Case 32. In opposition to the Claimant’s replying adavit dated 14th April 2026, the 1st Respondent led an adavit dated 4th May 2026. 33. It is the 1st Respondent's case, as deposed to by Morara Omoke, that the averments contained at paragraphs 4 to 12 of the adavit sworn by Martin King'asia on 14th April 2026, together with the exhibit marked MK-1, are unsubstantiated, malicious, founded on hearsay and speculation, and calculated to impute criminality upon him. He thus prays that the same be expunged from the record. 34. The 1st Respondent avers that Martin King'asia is driven by bitterness, envy, and a quest to avenge losses suered by the Claimant in the parallel litigation over his legal feesfor work done for the Pension Scheme in Nairobi ELRC Cause Number 1352 of 2018. 35. He contends that Mr. King’asia’s attempt to record his conversations constitutes an unconstitutional entrapment that violated his rights to privacy, conscience, association, expression, and information, as well as the Data Protection Act. He asserts that he has committed no oence under any of the provisions cited by King'asia. 36. The 1st Respondent states that he appeared before the Directorate of Criminal Investigations (DCI) and wrote a comprehensive statement on 25th March 2026 urging that institution to decline what he terms an invitation to weaponize the criminal justice system to re-litigate civil matters, and that he has since retained senior counsel to defend his position. 37. He avers that this is not the rst attempt by King'asia and his allies to malign him, citing an earlier 2024 complaint to the Ethics and Anti-Corruption Commission over his appointment as Counselfor the Pension Scheme yet they were members of the same Board that appointed me. 38. He further avers that Mr King’asia and his allies petitioned the Information, Communication and Telecommunication Committee of the National Assembly Committee which proceeded to hold a sham of a committee hearing. At the sittings of the Committee televised on the KBC Channel 1, ocials of the Scheme led by King’asia and the misguided Members of Parliament vilied him and called him all manner of names such as ‘rogue lawyer’ in a one-sided committee hearing where he was never invited to give my side of the story. 39. Additionally, prior to lodging his complaint with the DCI, Mr. King'asia was heard, in the presence of some of his colleagues, threatening that if the 1st Respondent won against the Pension Scheme in https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 5

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Nairobi ELRC Miscellaneous Application No. E002 of 2024, he would ensure that he enjoyed the awarded legal fees while rotting in jail. 40. The 1st Respondent further alludes to threats against his life, which he terms appalling and unacceptable given the existence of appellate and review mechanisms for civil disputes. He also asserts that the Scheme's current advocates, Gikera and Vadgama, are equally joining in King’asia’s campaign to deect from their own conduct of the litigation. 41. By way of factual and legal background, the 1st Respondent states that he was retained by the Board in May 2018, when King'asia was himself a member of that Board, to pursue the to represent the Pension Scheme in a longstanding remittances dispute in which the KBC had failed to remit employee and employer contributions for over a decade. This was at a time the Scheme faced imminent dissolution by the Retirement Benets Authority nigh unless tangible eorts were made to recover the unremitted sums. 42. He avers that he went on to lodge this suit in September 2018 and obtained a mandatory injunction on 15th May 2020 that compelled the KBC to resume remittance of employee and employer contributions which enabled the Pension Scheme to avoid winding up to avoid winding up the scheme; and enabled recovery of over Kshs. 230,057,009.43 pendente lite. 43. He avers that the judgment of 27th April 2022, which has never been appealed against by the KBC, directed inter alia that the Respondent remit all outstanding sums, pay compound interest at 3% per month on unremitted deductions pursuant to Section 53 of the Retirement Benefits Act, and that the parties le their respective computations for nal orders. 44. The 1st Respondent avers that pursuant to the judgment, the parties came up with their computations and led them in court. The judgment sum as at the date of the Judgment as computed by the Claimant amounts to Kshs. 18,421,704,159.11 while the sum computed by the KBC is Kshs.18,045,740,788.84. 45. He contends that shortly after the computations were led, the Board of Trustees of the Scheme, working in cahoots with the senior management and Board of Directors of the KBC, attempted to disinherit the members of the scheme by requesting him to reduce the led computation to Kshs 6,369,152,342.26, a reduction of some 65.4%, which he rmly declined, consistent with what he describes as his primary duciary duty to the members rather than the Trustees. 46. It is the 1st Respondent’s case that he brought these developments to the Court's attention by an application dated 26th September 2022, resulting in an order issued on 16th November 2022 by Lady Justice Maureen Onyango freezing further proceedings in the matter pending the taxation and payment of his Advocate-Client fees. Additionally, he separately notied the membership of these developments by a circular letter dated 5th October 2022. 47. The 1st Respondent's central contention is that the Consent of Kshs. 1,511,161,174.27 adopted by Wasilwa J on 9th March 2026 is a material misrepresentation and an unconscionable illegality that ought to be declared null and void, in that it fails to disclose the Kshs 230,057,009.43 he recovered during the suit, the transfer by KBC to the Pension Scheme on 23rd October 2025 of a 72-unit Shauri Moyo property last valued at Kshs 216 million in 2015, and an impending payment of Kshs 3.27 billion due to the Scheme from KBC by 31st May 2026. 48. He contends that these undisclosed facts suggest the parties to the consent must have agreed on a higher sum than the one presented in the consent lodged before this Court because they hope to use it to defeat or undermine my legal fees claim against the Scheme. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 6

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49. The 1st Respondent denies ever promising Kennedy Epalat or Dominic Orenge any nancial benet to approach the Court as interested parties, and maintains that such applications ought to be left to the Court's own scrutiny without unnecessary dramas, demonization and scandalization. 50. The 1st Respondent asserts his own standing to challenge the Consent, given its direct bearing on the taxation of his Bill of Costs in Miscellaneous Application No. E094 of 2026, and states that he has accordingly lodged both a stay application and an appeal before the Court of Appeal against the manner of its adoption, complaining that despite being a named party to the application dated 19th January 2026 seeking its adoption, he was not granted audience thereon. 2nd Respondent’s Case 51. In opposition to the application dated 28th January 2026, the 2nd Respondent led a replying adavit dated 16th April 2026, sworn its Managing Director, Agnes Kalekye Nguna. 52. It opposed the application in its entirety on the ground that the suit was fully heard and conclusively determined by the judgment delivered on 27th April 2022 and the Consent for nal orders adopted on 9th March 2026. This rendered the application, in substance and eect, an attempt to re-open and re-litigate issues post-judgment, which is not only an absurdity in law but contrary to the principle of nality in litigation. 53. The 2nd Respondent avers that it is a settled principle that a court becomes functus ocio after delivery of nal judgment on the substantive issues, and may thereafter act only within narrow connes permitted by law. 54. It avers that following the delivery of the judgment on 27th April 2022, the Court issued post-judgment directions strictly for the parties to reconcile accounts and le computations for the pronouncement of nal orders, and the Court thereby became seized of the matter only to the limited extent of implementing the Judgment. 55. It contends that the Consent dated 15th January 2026 was in fact adopted as a judgment of the Court on 9th March 2026 and the case closed, and to this eect, prayer 2 seeking to stay its adoption cannot stand, having been overtaken by events. 56. The 2nd Respondent further contends that the application, while framed as protecting the interests of Scheme members, in eect invites the Court to introduce new contestation by reopening nalized computations notwithstanding that judgment has already been rendered and steps already taken towards implementation. 57. It is the 2nd Respondent’s case that a proper application to be joined as an interested party should be done during the lifetime of the suit and not after its termination. The only recourse a person may have post-judgment in the suit is to appeal against the orders of the court before proceeding accordingly to apply to be joined as an interested party. 58. The 2nd Respondent avers that the Applicants have not demonstrated any legally cognizable stake or proximate interest justifying joinder at this post-judgment stage, nor shown what outstanding issue necessitates their presence. 59. It further avers that the post-judgment consent was entered into by the two main parties to the suit, and the Applicants never sought to be enjoined during the live proceedings, their interests having been adequately represented at all times by the Claimant, therefore, they cannot seek to relitigate, reopen, review, or set aside the judgment through an application for joinder. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 7

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60. The 2nd Respondent avers that the application is misconceived in seeking to challenge and set aside a consent order, which has contractual eect and can only be set aside on grounds of fraud, misrepresentation, or mistake; none of which, it asserts, has been established. 61. It is the 2nd Respondent’s case that the proposed interested parties have not demonstrated any legally cognizable stake or proximate interest that would justify a grant of joinder at this post- judgment stage of the matter and have not shown what specic issue remains outstanding for determination that necessitates their presence in these proceedings. 62. Further, an application for joinder of parties is principally stipulated under Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 and the court’s power is discretionary and must be exercised judiciously for the purposes of enabling the court to eectually and completely adjudicate upon all issues involved in the suit. 63. Contrary to the allegation that Scheme members were not consulted, it avers that the 2nd Respondent, as Sponsor of the Claimant, ensured members were regularly consulted and apprised on the developments of this case, during the Annual General Meetings (AGMs) and even through the WhatsApp Group which is composed of the members of the scheme 64. On the substantive computation dispute, the 2nd Respondent avers that the Applicants' main Ground “1a” upon which this application is premised, alluding to the fact that the nal consent amount applied a simple interest per annum calculation and omitted employee contributions, employer contributions and rental income as opposed to applying “the statutory 3% compounded monthly” is incorrect, misleading and totally disingenuous. 65. It contends that Section 53 of the Retirement Benefits Act imposes the 3% monthly penalty only on employees' deductions, not on the entire claim, and that the Claimant's former Advocate and the Applicants erroneously applied the penalty across all heads of claim to arrive at a gure exceeding Kshs .18 billion. 66. The 2nd Respondent states that at the time of ling suit, the total claim as of 31st March 2018 comprised employer contributions of Kshs. 683,406,014.72, employee contributions of Kshs. 53,117,348.13, interest of Kshs. 72,986,990, CBA of Kshs. 4,525,858.72, and property rent of Kshs. 6,206,000, and that the statutory penalty applied only to the Kshs. 53,117,348.13 employee contribution component, not the entire sum of Kshs. 820,242,211. 67. In response to the 2nd Applicant's supporting adavit, the 2nd Respondent avers that the Sponsor, it facilitated the April 2025 election process for member-elected trustee positions. The re-election of all but one of the three Trustees, who was not re-elected due to his ineligibility after serving a two-term limit, signied the members’ condence in the elected trustees contrary to what has been deponed in the Applicant’s Supporting Adavit. 68. It further contends that Prayer 4 of the application is fatally defective, as the Court lacks jurisdiction to grant orders or entertain prayers from non-parties directed at the principal parties to the main suit. 69. It is the 2nd Respondent’s case that continuation of any proceedings at ELRC will cause irreparable harm to the parties in the main suit as it would further derail the resolution of this Employment dispute which has been in Court since 2018, to the detriment of elderly retirees with no other income and current employees who risk losing their savings should the Scheme collapse. 70. The 2nd Respondent contends that it is insincere for the Applicants to claim that they were unaware of the issues leading to the terms of the consent or its nancial struggles, yet the same terms have been raised by the members of the Scheme in various forums including in a Petition addressed to the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 8

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President of the Country by the same members they claim to represent, requesting the President’s intervention for a swift settlement of the matter. 71. The 2nd Respondent avers that the application for joinder and stay of proceedings is frivolous, vexatious, and an abuse of court process intended to delay the administration of justice, and prays that the application be dismissed with costs. 72. In opposition to the 1st Interested Party’s application dated 12th March 2026, the 2nd Respondent led a Notice of Preliminary Objection dated 25th May 2026 on the grounds that: 1. The Application has been led by persons not properly on record and have no locus standi, by dint of Order 1 Rule 10 of the Civil Procedure Rules, 2010, as no leave has been granted for the 1st Interested party/ Applicant to be enjoined in the proceedings. 2. The Application as led is fatally detective ab- initio since it creates an absurdity in law where a non-party in a suit seeks stay orders against a consent led by the main parties in a case and adopted as an order of the court. 3. The Application is a disguised appeal and/or a review application, inviting this Court to sit on an appeal over its own decisions, contrary to the functus ocio doctrine as recognized in Raila Odinga & Others V Iebc & Others 2013 eKLR and Article 50(1) of the Constitution of Kenya 2010. 4. For the forgoing reasons, the application led herein is otherwise misconceived, frivolous, vexatious and an abuse of the court process and should be dismissed with costs. 2nd Interested Party/Applicants Submissions 73. The Applicant submitted on four issues: Whether the Applicant has a direct and substantial interest in the subject matter of the suit, such as to warrant joinder under Order 1 Rule 10(2) of the Civil Procedure Rules; Whether the Applicant is an indispensable party, in the sense that the dispute cannot be eectually and completely adjudicated in his absence; Whether the Application dated 28th January 2026 remains deserving of the Court's audience notwithstanding the subsequent adoption of the impugned Consent on 9th March 2026; and Whether the Applicant, as a mere beneciary of the Scheme, is entitled to maintain proceedings against the Trustees and participate in the present cause. 74. On the rst issue, the Applicant submitted that Order 1 Rule 10(2) empowers the Court, at any stage of the proceedings, to join a party whose presence is necessary to enable it to eectually and completely adjudicate upon and settle all questions in dispute, the guiding principle being to ensure that all persons whose rights are directly aected are before the Court so as to avoid fragmented or incomplete adjudication. 75. In support thereof, he relied on the two-part conjunctive test in Werrot & Co. Ltd & 3 Others Vs Andrew Douglas Gregory & 2 Others [1998] eKLR which requires the Court to examine the following: rst, whether there exists a right to relief against the party in respect of the matter in issue, and second, whether it would be impossible to eectually and completely adjudicate upon the matter in that party's absence. 76. The Applicant argued that, as a beneciary of the KBC Sta Retirement Benets Scheme, he possessed an identiable proprietary and nancial interest arising from the judgment delivered on 27th April 2022 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 9

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which awarded recovery of unremitted pension contributions, rental income and compound interest at the rate of 3% per month. 77. It was submitted that the impugned consent reducing the decretal amount from over Kshs. 18 billion to approximately KES 1.51 billion substantially diminished the benets payable to scheme members and therefore directly aected his vested proprietary rights. 78. He further submitted that previous attempts to reduce the decretal sum had allegedly been resisted for being inconsistent with the judgment and the applicable statutory framework and that the impugned reduction, allegedly undertaken without consultation of beneciaries and in breach of the trustees' duciary obligations, had reduced the decretal amount by approximately 91.8%. Accordingly, he maintained that his interest was neither remote nor speculative but direct, personal and substantial. 79. On the second issue, the Applicant submitted that he is an indispensable party within the meaning of Order 1 Rule 10(2) because the validity of the impugned consent, the correctness of the computations and the enforcement of the Court's judgment could not be conclusively determined without the participation of a beneciary whose rights would be directly aected by the outcome. 80. He placed reliance on Pizza Harvest Limited v Felix Midigo [2013] eKLR where the Court adopted Devlin J.’s formulation in Amon v Raphael Tuck & Sons Ltd (1956) 1 All ER 273 that a party is necessary if the question in the proceedings cannot be eectually and completely settled without that party being joined, and if the intended judgment will bind or materially aect their rights. 81. It is the Applicant’s submission that any determination on the impugned consent would bind all beneciaries and consequently his participation was indispensable to achieving a complete and just determination of the dispute. 82. On the third issue, the Applicant contended that the application for joinder could not be defeated by the subsequent adoption of the consent order because, by the time the consent dated 15th January 2026 was adopted on 9th March 2026, his application dated 28th January 2026 had already been led and was pending determination. He submitted that the proceedings had therefore not attained nality and that the Court itself had acknowledged the pending application by issuing directions, including a limited stay. 83. The Applicant invoked Article 159(2)(d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities, and relied on Raila Odinga & 5 Others v Independent Electoral and Boundaries commission & 3 others[2013] eKLR, where the Supreme Court stated:" The essence of that provision is that a court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course.” 84. He submitted that the proper test is whether the application was on record pending hearing and determination at the time the Consent was adopted, and that an armative answer bound the Court to allow it, lest parties be permitted to defeat properly instituted proceedings through procedural manoeuvring undertaken during the pendency of a live application. 85. The Applicant further invited the Court, in arriving at its Ruling, to consider: who may protect the Applicant's interest in the face of conicted duciaries; whether trustees or the Respondents can eectively become judges in their own cause; whether such a position accords with settled principles https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 10

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of equity and natural justice; whether refusing joinder would multiply litigation or expose parties to inconsistent determinations; and whether judicial economy is better served by hearing the Applicant within the present proceedings. 86. It was submitted that the interests of justice and the overriding objective under Section 3A of the Civil Procedure Act, committing the Court to the just and ecient disposal of its business, demanded that the Application be heard and allowed, failing which the Applicant would be left remediless and justice rendered inaccessible. It was accordingly submitted that the Court remains properly seized of jurisdiction and is duty-bound to hear and determine the Application on its merits. 87. On the nal issue, in response to the Respondents' position that the Applicant, as a mere beneciary, lacks standing to question the Trustees' actions or intervene in the proceedings, it was submitted that this proposition is contrary to settled principles of equity, trust law, and duciary accountability, and that the matter falls squarely within recognized exceptions permitting beneciaries to approach the Court directly where trustees act in conict with their duciary obligations. 88. It was argued that notwithstanding the general principle that trustees litigate on behalf of a trust, the present matter fell within the recognized exceptions permitting beneciaries to approach the Court directly where trustees act in conict with their duciary obligations or fail to protect the trust estate. 89. He submitted that the trustees held the Scheme assets in a duciary capacity for the benet of members and beneciaries and that beneciaries therefore possessed enforceable equitable and proprietary interests capable of judicial protection. According to the Applicant, the trustees' alleged participation in compromising the decretal sum without consultation of beneciaries and contrary to the Court's judgment constituted a breach of duciary duty which entitled beneciaries to seek direct intervention by the Court. 90. The Applicant relied on the Vandepitte exception as articulated in Hayim v Citibank N.A. [1987] AC 730, where Lord Templeman held that "when a trustee commits a breach of trust or is involved in a conict of interest and duty or in other exceptional circumstances a beneciary may be allowed to sue a third party in the place of the trustee," and that “a beneciary has no cause of action against a third party "save in special circumstances which embrace a failure, excusable or inexcusable, by the trustees... to protect the trust estate or to protect the interests of the beneciary in the trust estate." 91. Reliance was further placed on Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240, where Lord Collins observed that beneciaries may sue where there exist suciently special circumstances making it just for them to have the remedy, and further cited the statement that rights forming part of the trust estate "can be enforced by the beneciaries in a suitable case if the trustees are unable or unwilling to do so." 92. It was therefore submitted that the alleged conict between the trustees' duciary obligation to preserve Scheme assets and their participation in the impugned consent constituted the exceptional circumstances contemplated under the Vandepitte exception.The Applicant additionally relied on Karl Lawton & Others v Edith Edwards Lawton [2025] JMSC Civ 75, where the Court observed that: "The Defendant cannot be expected to sue herself." 93. It was submitted that the same reasoning applied where trustees accused of compromising trust assets could not reasonably be expected to challenge their own actions, thereby necessitating intervention by beneciaries to safeguard the trust estate. 94. The Applicant further invoked the beneciary principle as expressed by Millett LJ in Armitage v Nurse [1998] Ch 241 (CA), that "there is an irreducible core of obligations owed by the trustees to the beneciaries and enforceable by them which is fundamental to the concept of a trust. If the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 11

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beneciaries have no rights enforceable against the trustees there are no trusts." He further cited Lewin on Trusts (20th Edition, Vol. 2) at paragraph 47-012 for the proposition that where a beneciary brings a derivative action, the need to join the trustees "has a substantive basis since the beneciary has a personal right to sue and is suing on behalf of the estate, or more accurately the trustee." 95. On this authority, it was submitted that the Applicant's intervention is not an attempt to usurp the Trustees' functions but a necessary invocation of the Court's jurisdiction to protect the Scheme, its assets, and the rights of beneciaries where the Trustees themselves are alleged to have acted contrary to those interests. Claimant’s Submissions 96. On whether the applicant’s case is tainted, the Claimant submitted that the application is substantially anchored upon adavit evidence whose integrity has been seriously impugned by uncontroverted material before the Court. The Claimant contended that there exists prima facie material demonstrating that the proceedings may have been initiated and prosecuted through improper inducement and external inuence, the Chairperson of the Board of Trustees having deponed that a formal complaint had been lodged with the DCI concerning the circumstances under which the 1st Applicant's adavit was procured, disclosing allegations of inducement through promise of nancial benet, procurement of adavit evidence to inuence court proceedings, and interference with the due course of justice, supported by electronic communications and audio recordings supplied to the investigative authorities. 97. It was submitted, most critically, that the Claimant subsequently annexed the 1st Applicant's own statement recorded before the DCI, in which he admitted facts relating to his engagement with the 1st Respondent and the arrangements surrounding institution of the proceedings, evidence said to directly contradict the 1st Respondent's categorical averment that he had "never promised Kennedy Epalat or Dominic Orenge any nancial benet whatsoever to approach this Court as interested parties." 98. It is the Claimant’s submission that this statement independently corroborates the Claimant's concerns, and that the subsequent withdrawal of the 1st Applicant's adavit, viewed alongside the DCI complaint and his own statement, lends further credence to the apprehension that the evidence before the Court was not independently generated but externally orchestrated. On this basis, it was submitted that the Court is entitled, and indeed obligated, to approach the Applicants' evidence with considerable caution. 99. On whether the Applicants have established a proximate and identiable legal interest, the Claimant submitted that the principles governing joinder of interested parties are settled in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR where the Supreme Court held that an applicant must demonstrate: "a personal interest or stake in the matter that is clearly identiable and proximate; the prejudice that will be suered if joinder is denied; and the specic contribution the applicant intends to make which is not otherwise available to the Court." It was submitted that the Applicants have failed to satisfy any of these requirements, their sole basis for joinder being mere membership of the Scheme, which does not without more confer a right to participate in every legal proceeding involving it. 100. It was contended that the Claimant is not an ordinary litigant but the Board of Trustees of the Kenya Broadcasting Corporation Sta Retirement Benets Scheme suing in a representative capacity, vested by law with responsibility for administering the Scheme's aairs. The entire structure of retirement benets governance is founded on the principle that the Scheme's aairs are managed through the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 12

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Trustees rather than individual members, who vest management and representation in the Trustees under duciary obligation to act in the best interests of the membership as a whole. 101. It is the Claimant’s submission that where trustees are properly exercising their mandate, individual beneciaries cannot step into proceedings and assume a parallel or competing role. In the instant application, the Applicants erroneously assume the judgment created an immediately ascertainable proprietary entitlement in favour of each member, when in fact it was entered in favour of the Board in its representative capacity, with individual entitlements remaining subject to administration under the Scheme Rules, actuarial assessment, and the statutory framework. 102. The Claimant further submitted that a beneciary has no independent cause of action in relation to trust property save in exceptional circumstances involving a failure by trustees to perform their duties. The Applicants have not demonstrated that the Trustees refused to act, were incapable of acting, or were conicted, nor established fraud, bad faith, dishonesty or other misconduct sucient to displace the Trustees' representative role thus their case amounting to no more than disagreement with the outcome of a reconciliation process, which however strongly held, cannot confer standing where none otherwise exists. 103. It was submitted that the Applicants proceed on the erroneous assumption that the parties' preliminary computations constituted the decretal amount, when the Judgment expressly contemplated reconciliation and verication of the sums due, and that the interest asserted is not unique or personal but identical to that of every other beneciary, already represented before the Court through the Board, a position rendered further untenable by the absence of any resolution, mandate or authority demonstrating that the Applicants have been authorized to speak for the wider membership. 104. On whether there are any proceedings to which the Applicants can be joined, the Claimant submitted that even if a sucient legal interest has been shown, the application will still fail for want of any pending proceedings to which the Applicants could properly be joined. Reliance was placed on Everton Coal Enterprises Limited v Karanja & 5 others [2023] KESC 98 (KLR), where the Supreme Court held that "A joinder contemplates-a situation-where proceedings are still pending before the Court….a party will only be added to ongoing proceedings in order to enable the Court adjudicate fully upon and settle all questions involved in the particular proceedings before it." The Court proceeded to arm its earlier decision in JMK v MWM & another [2015] eKLR which was reiterated in Kimwele v Kubora & another; Mwasya & 5 others (Interested Parties) [2025] KEELC 5636 (KLR), to the eect that once judgment has been rendered and the matter concluded, the Court becomes functus ocio and joinder under Order 1 Rule 10(2) is no longer available. 105. It was submitted that judgment was delivered on 27th April 2022, the parties thereafter undertook reconciliation culminating in the Consent of 15th January 2026 adopted as an order of the Court on 9th March 2026, and that the substantive dispute has therefore been concluded. The Claimant thus argued that the Applicants are seeking not to participate in ongoing proceedings but to reopen and challenge decisions already made and adopted, precisely the mischief cautioned against in Everton Coal Enterprises Limited (Supra). 106. On whether the Applicants have demonstrated exceptional circumstances justifying intervention, the Claimant submitted that the law recognizes only limited circumstances in which beneciaries may displace trustees such as fraud, bad faith, collusion, refusal to act, conict of interest or similar exceptional situations. In the present application, the Applicants have established none of these, their sweeping allegations of collusion, breach of duciary duty and impropriety remaining speculative, generalized and unsupported. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 13

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107. It is the Claimant’s submission that serious allegations of this nature must be specically pleaded and strictly proved, and that mere dissatisfaction with a trustee decision cannot amount to proof of misconduct nor justify displacement of the Trustees' lawful mandate. 108. On whether the Applicants have demonstrated prejudice or distinct contribution, the Claimant submitted that the second and third limbs of the Francis Karioko Muruatetu & another v Republic [2017] eKLR test require an applicant to demonstrate both the prejudice likely to be suered in the absence of joinder and the distinct contribution the applicant intends to make to the proceedings. The Applicants have demonstrated neither. 109. It was contended that the Applicants have not identied any specic prejudice suered personally, nor demonstrated what benet was due, what amount was lost, or how individual entitlement was aected by the Consent, raising instead only generalized concerns on behalf of the entire membership, which do not amount to the specic prejudice contemplated in Muruatetu. 110. Reliance was placed on Francis Karioko Muruatetu & another v Republic [2017] eKLR for the proposition that "…….any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the Court. The determination of any matter will always have a direct eect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly aected, but the primary impact is on the parties that rst moved the Court…………. …One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether new issue to be introduced before the Court.” 111. Additionally, the Claimant submitted that the Supreme Court in this case cautioned as echoed in Nduva & 3 others v Ndar & 3 others; Ng’ang’a (Intended Interested Party) [2024] KEHC 8118 (KLR) against introducing a new cause of action or transforming proceedings into a dierent dispute altogether which is what the Applicants seek to do here. 112. On whether the Application is an improper attempt to reopen a lawfully concluded matter, it was submitted that the true purpose of the Application, though framed as one for joinder, is to challenge the Consent and reopen matters already resolved, the Applicants' assertions that the Consent is unlawful, inconsistent with the Judgment, and detrimental to members being entirely unsubstantiated. 113. The Claimant contended that the Consent was the culmination of a reconciliation process involving review of records, verication of remittances, and application of the relevant legal principles, entered into by the proper parties acting within their lawful mandate. The Applicants have produced no actuarial report, expert computation, or forensic analysis capable of demonstrating that the gures in the Consent are erroneous as their challenge being founded on conjecture and suspicion rather than evidence. 114. It was submitted that the Applicants have placed no evidence of fraud, improper motive, personal benet, conict of interest or concealment capable of supporting an inference of collusion between the Trustees and the 2nd Respondent, nor shown that any member has been unable to access or receive pension benets as a result of the Consent, such that the Court cannot be invited to infer bad faith or breach of duciary duty from mere suspicion. 115. On whether the application has been overtaken by events, the Claimant submitted that Order 1 Rule 10(2) is intended to facilitate complete adjudication of live disputes and is not a vehicle for reopening https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 14

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concluded proceedings, the judgment of 27th April 2022 and the subsequent reconciliation process having culminated in the Consent's adoption on 9th March 2026, thereby resolving the substantive dispute. 116. It is the Claimant’s submission that the fact the Court gave directions regarding the pending application did not relieve the Applicants of the obligation to satisfy the legal requirements for joinder. Accordingly, the Claimant urged the Court to nd that Order 1 Rule 10(2) of the Civil Procedure Rules was intended to facilitate adjudication of live disputes and not to reopen concluded proceedings or introduce fresh controversies after nal determination. 2nd Respondent’s Submissions 117. The 2nd Respondent submitted on three issues: whether the threshold for joinder of parties has been met; whether an application for joinder as an interested party can be made post-judgment; and whether the Court can grant orders to a non-party in a suit. 118. On the rst issue, the 2nd Respondent submitted that an interested party, as dened in Black's Law Dictionary (8th Edition) and under Rule 2 of the Mutunga Rules, is one possessing an identiable stake or legal interest though not a party to the proceedings. 119. In support thereof, the 2nd Respondent placed reliance on Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR, Meme v. Republic,2004 1 EA 124, as armed in Communications Commission of Kenya & 3 others v Royal Media Servies Limited & 7 others; Nature Foundation Limited (Proposed Interested Party) [2014] KESC 52 (KLR), for the principles that joinder is intended to facilitate complete settlement of all questions in dispute, protect the rights of persons likely to be adversely aected and prevent multiplicity of proceedings. 120. It was further submitted that Orders 1 Rules 3 and 10(2) of the Civil Procedure Rules require joinder only where a party's presence is necessary to enable the Court eectually and completely adjudicate upon the issues before it. 121. The 2nd Respondent further relied on Pravin Bowry v John Ward & another [2015] eKLR, adopting Deported Asians Property Custodian Board v. Jaer Brothers Limited (1999) I EA 55 (SCU), to submit that a necessary party is one whose legal interests will be directly aected by the orders sought or whose presence is indispensable to the determination of the dispute. 122. Applying these principles, it was submitted that the Applicant, being a member of the Claimant Scheme who had identied himself as such in his supporting adavit, was already adequately represented in the main suit through the Claimant's pleadings, documents, and witness testimony, and is therefore estopped from claiming to be a necessary party, his evidence being deemed already tabled through the Claimant. 123. It is the 2nd Respondent’s submission that the Applicant cannot now seek joinder at this late stage to introduce fresh evidence or new issues not contemplated in the main suit, and that the application in truth amounts to an attempt to re-open, re-examine, and re-litigate issues already determined, without meeting any legal threshold for joinder. 124. The 2nd Respondent further submitted that the Applicant's reliance on computations exceeding Kshs 18 billion as the decretal sum is misconceived, since paragraph 50(vi) of the judgment of 27th April 2022 made no express nding on any gure, but merely directed the parties to reconcile accounts and le computations, seizing the Court only to the limited extent of implementing the Judgment. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 15

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125. It was submitted that the exhibits marked DTO-3 and DTO-4, though uploaded to the judiciary CTS, were never adopted in court, and that the record of 28th July 2022 shows the Claimant’s Advocate expressly declined to acknowledge any such consent for want of instructions, making it disingenuous to treat those gures as judgment sums. 126. The 2nd Respondent submitted that the Applicant's contention that the consented sum of Kshs 1,511,161,174.27 wrongly applied simple interest and omitted employee and employer contributions and rental income instead of the statutory 3% compounded monthly is incorrect and misleading, since Section 53 of the Retirement Benefits Act applies the 3% monthly penalty only to employees' deductions, not to the entire claim, the erroneous application of which yielded the inated gure of over Kshs 18 billion. 127. On the second issue, the 2nd Respondent submitted that the law did not permit joinder once proceedings had been concluded. Reliance was placed on Kimwele v Kubora & another; Mwasya & 5 others (Interested Parties) [2025] KEELC 5636 (KLR) and Njogu & 2 others v Githinji & 2 others; Ngiricha & 4 others (Intended Interested Party) [2025] KEELC 936 (KLR) all of which, it argued, establish that joinder is only available during the pendency of proceedings and not after judgment has been rendered. 128. It was therefore submitted that one may only apply to be joined as an interested party during the lifetime of the suit and not after its termination, the only recourse thereafter being an appeal against the court's orders before proceeding to apply for joinder, and that if the prayer for joinder fails, all other prayers in the Application must automatically fall with it. 129. On the third issue, the 2nd Respondent submitted that the Court lacked jurisdiction to grant substantive reliefs sought by a person who was not yet a party to the proceedings. It argued that the Applicant remained a stranger to the suit unless and until leave to join the proceedings was granted and could not simultaneously seek substantive orders against the existing parties. In support of this argument, reliance was placed on the decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where Nyarangi JA stated: "Jurisdiction is everything. Without it, a Court has no power to make one more step." 130. I have examined all the averments and submissions of the parties herein. The applicant led two applications seeking: (i) joinder (ii) stay of adoption of the consent of the court dated 15th January 2026 (iii) stay of execution of the consent adopted on 9/3/202 (iv) review of orders of 9/3/2026 seeking setting aside of the consent between the claimant and KBC and (v) verication, reconciliation and adoption of the computation led by the claimant. 132. The 1st issue to consider is whether the joinder of the applicant is necessary. As submitted herein order 1 rule 10(2) empowers court to allow joinder of any party at any stage of the proceedings where presence is necessary for adjudication of the dispute. 133. The applicant avers that they are directly aected by the courts judgment being members of the scheme. It is worth noting that the applicants as members of the scheme will be aected by the outcome of this https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 16

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case. It is however true that this case was heard and determined by Hon. J. M. Onyango and judgment delivered on 27th April 20222. What remained was computation of the amounts owed to the claimant by the respondents. 134. A consent of the parties dated 15/1/2026 was thereafter recorded in court on 9/3/2026 by the parties detailing the amount payable as directed by J Onyango. The 1st respondents have already led a notice of appeal against the court ruling of 9/3/2026 adopting the consent of the parties. 135. The question then is whether there is a substantive issue pending that would be determined by this court and for which this court would need the assistance of the interested party. My view is that this court has substantially determined this cause and judgment delivered and an appeal led. There is no other issue pending that this court has not determined on the claim before court. 136. I therefore nd that the application for joinder of the interested parties would not be necessary as the claim has been allowed and this court funtus ocio. I therefore decline the application for joinder and further the other prayers sought in the application by the intended party. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2026. HELLEN WASILWA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2451/eng@2026-09-16 17

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