Julius Onyoni Opini v Postal Corporation of Kenya & Postal Corporation of Kenya Staff Retirement Benefit Scheme (Interested Party)

a) That the court lacks jurisdiction to entertain the claim since the matter is sub judice High Court case no. E70 of 2024 between the Retirement Benefits Authority and Postal Corporation of Kenya Staff Retirement Benefits Scheme and another. b) That the claim for recovery of the unpaid pension contributions falls within the purview of the provisional liquidator of the Interested Party. c) That in light of the winding up cause against the Interested Party and the appointment of a provisional liquidator therein, this suit is incompetent in so far as it seeks to bypass the provisions of the Insolvency Act. d) That sections 428, 429 and 430 of the Insolvency Act operate to stay the commencement or continuation of any suit in respect of the assets of, debts owed by or to the Interested Party and by extension the Respondent. e) That the suit is therefore fatally defective, incompetent and an abuse of the court process. 4. The Claimant has opposed the preliminary objection. He has filed what he describes as a reply to the Notice of Preliminary Objection. He contends that the objection is misconceived and an abuse of the court process. 5. The Claimant asserts that there is no evidence provided to demonstrate existence of the insolvency proceedings. He contends that the Respondent has not provided proof of the orders it alleges were issued in the insolvency cause. CAUSE NO. E579 OF 2025 2

page 2 of 5

6. The Claimant avers that he, in any event, is not a party to the insolvency cause. He contends that the issues in the alleged insolvency cause are not the same as the issues in the suit before this court. Analysis 7. The definition of a preliminary objection is now well established. According to the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors Ltd [1969] EA 696, a preliminary objection comprises a pure point of law which does not require to be established through evidence. 8. In the instant case, the Respondent asserts that there is an ongoing insolvency cause against the Interested Party which has the effect of staying the Claimant’s suit. It (the Respondent) contends that the issues which the Claimant has raised in this suit are part of the issues which are under consideration in the insolvency cause. 9. For the Respondent to prove these assertions, it has to tender evidence on them. This removes the objection from the purview of a pure point of law. 10. If I understand the Respondent correctly, it (the Respondent) asserts that the ongoing court process before the High Court between the Interested Party and the Retirement Benefits Authority has the consequence of staying these proceedings. This assertion is misguided because the dispute before this court is quite distinct from the liquidation proceedings before the High Court. CAUSE NO. E579 OF 2025 3

page 3 of 5

11. The instant dispute concerns accrued pension benefits from the Respondent to the Claimant under the contract of service the two had. It is not a dispute between the Claimant and the Interested Party regarding his pension benefits. As such, it (the dispute herein) cannot be said to be the subject of the alleged liquidation proceedings between the Interested Party and the Retirement Benefits Authority. 12. But even assuming that the Claimant’s case herein was impacted by the liquidation cause between the Retirement Benefits Authority and the Interested Party herein, it is worth of note that the order to appoint a liquidator for the Interested Party in the liquidation cause was stayed pending an appeal to the Court of Appeal (see Retirement Benefits Authority v Retirement Postal Benefit Corporation Scheme of Kenya & Staff another [2026] KEHC 2036 (KLR)). In effect, the appointment of the liquidator stands suspended pending resolution of the appeal to the Court of Appeal. As such, the Respondent cannot rely on the aforesaid case to contend that the instant cause is now stayed. Determination 13. The upshot is that the court finds no merit in the preliminary objection. 14. As such, the objection is dismissed. 15. Costs of the objection are granted to the Claimant. Dated, signed and delivered on the 30th day of September, 2026 CAUSE NO. E579 OF 2025 4

page 4 of 5

B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI CAUSE NO. E579 OF 2025 5

page 5 of 5