Rift Valley Railways Workers Union v Kenya Railways Staff Retirement Benefits Scheme (krsrbs) & 3 others

the 2nd Respondent for approval and validation alongside the Board resolution that resolved to have Mr. Philip Jamuhuri Mahinga, Eng. Martin Mogwanja, Mr. Asava Kadima, Ms. Jackline Mboga, and Mr. Elijah Mokaya all employees of the Kenya Railways Corporation to the Board of Trusteeship at the 1st Respondent Board of Trustees. iv. That the 2nd Respondent be and is hereby directed to table in court the current Approved Trust Deed of Appointments of all the alleged Trustees at the 1st Respondent’s Board for purposes of validating their respective positions as Trustees and a copy of The Fixed Assets Register at the 1st Respondent office as was lodged at theirs by the said 1st Respondent in the year 2006. v. That the Interested Party be and is hereby directed to table in court the relevant Kenya Gazette Notice that either renewed and or extended the term of the purported Chairman of the 1st Respondent as a Director of the Kenya Railways Board the basis upon which, vide the said Board Resolution, he may be nominated to the 1st Respondent Board as a Sponsor Nominated Trustee. vi. That the 2nd Respondent be and is hereby directed to forthwith, and with effect immediate, implement The Senate Report year 2020 through a controlled process and within the provisions of Section 45 of the Retirement Benefits Authority 1997, which Senate Assembly having comprehensively prosecuted the matter eventually established through the said Report the serious issue of Governance, Structure and Operations as being the source of the maladministration and malpractices at the 1st Respondent’s. vii. That the Annual General Members meeting that was convened by the 1st Respondent on the 25th day of August 2023 be and is hereby declared Null and Void ab initio. viii. That costs of the application be provided for. 2. The application is anchored on the grounds stated on the face of it and in the Supporting Affidavit of Munayi Opondo Issac, who has described himself as the Secretary General of the Applicant. The deponent has stated that vide Gazette Notice No. 5441 of 2020 issued on 7th August 2020, Eng. Martin Mogwanja and Prof. John Agoro Nyerere were appointed as Directors of Kenya Railways Corporation (the 3rd Respondent); that upon expiry of the abovementioned Gazette Notice in September, 2022, Eng. Martin Mogwanja and Prof. John Agoro Nyerere ought to have ceased conducting the affairs of Kenya Railways Staff Retirement Benefits Scheme (KRSRBS) (the 1st Respondent) but they continued to stay on and execute the Trust instruments in their respective capacities as Trustee and Chairman to the 1st Respondent’s Board and that upon expiry of the Gazette Notice, the 3rd Respondent had no authority or capacity to forward to Retirement Benefits Authority (the 2nd Respondent) names of nominated persons, for approval by the 2nd Respondent. 3. He further deposed that the Annual General Meeting (AGM) held on 25th August 2023 was unprocedurally and irregularly convened by a person who lacked the requisite authority; that the convener in this case is purported to have acted as Chairman to the 1st Respondent Board of Trustees, despite his term having expired, in the absence of a renewal or extension; that the Trustees of the 1st Respondent held office illegally at all material times, in the absence of any validly approved Deeds of Appointment since August, 2022 and have further failed to maintain a valid and current Fixed Assets Register which would assist in tracking the assets of the 1st Respondent. 4. The deponent has stated that the 3rd Respondent’s Board of Directors purported to extend the tenure of directorship of the abovementioned Eng. Martin Mogwanja as a Trustee of the 1st Respondent’s Board of Trustees, in the absence of the requisite authority and that previously, the Senate Committee https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16536/eng@2025-10-23 2

page 2 of 8

of Labour and Social Welfare prosecuted the above issue, resulting in the publication of a Senate Report in the year 2020 which established grave issues of governance and composition of the Board and further directed the 2nd Respondent to implement the Report, but that the implementation process was never undertaken. Responses 5. The 1st Respondent filed Grounds of Opposition dated 10th February 2024 to oppose the application, on the following grounds: i. That the instant Application is an abuse of the court process as it endeavors to obtain orders of finality within the context of an interlocutory application which orders require the hearing and determination of the main suit. ii. That the Applicant is incapable of instituting the instant application as it is a Trade Union regulated by the Labour Relations Act, distinct from the 1st Respondent, a pension scheme which caters to the pensions of the 3rd Respondent. iii. That the Applicant cannot raise issues with regard to the Trust Deed and Rules which governs the administration of the 1st Respondent since it is not privy to the said Trust Deed and Rules. iv. That there are no valid grounds placed before this Honourable Court to warrant the granting of any of the orders prayed for in the application. v. That the application as drawn, lacks merit and to grant the orders sought is in effect prejudicial to the Respondent’s members who continue to suffer great financial constraints. vi. That the Application is frivolous, vexatious and bad in law as the Applicant has not established sufficient cause for the grant of the Orders sought. 6. The 1st Respondent has also filed Replying Affidavit sworn by its Chief Executive Officer (CEO), Isaac Sila, on 13th March 2024 to oppose the application, terming the said application as being frivolous, vexatious and lacking in merit, since the same is primarily challenging the validity of the current Trustees of the 1st Respondent; that the 1st Respondent’s Board of Trustees is properly constituted, pursuant to a valid Deed of Appointment dated 24th July 2023; that the Gazette Notice referred to in the application pertains to the appointment of the referenced persons to the Board of the 3rd Respondent and in no way affects or limits a person’s chances of appointment as a Trustee of the 1st Respondent; that the AGM held on 25th July 2023 was properly convened in accordance with the terms of the Trust Deed and that any grievances pertaining to the management of the 1st Respondent ought to be channeled in line with the procedures set out in Clause 34 of the Trust Deed. 7. In addition, the 1st Respondent has opposed the application by relying on a further Replying Affidavit sworn by the abovementioned deponent on 26th February 2025, in which it is deposed, inter alia, that the 1st Respondent was established pursuant to a Trust Deed and Rules dated 3rd May 2006, with the 3rd Respondent being named as a Sponsor to the Trust Deed and that the 1st Respondent has at all material times complied with the terms of the said Trust Deed and its Rules. 8. The Applicant filed a further affidavit sworn by Munayi Opondo Isaac on 25th March 2023 in which the deponent has reiterated that the 3rd Respondent purported to extend the term of Eng. Martin Mogwanja notwithstanding the expiry of the Legal Gazette Notice in October, 2022; that the issues pertaining to the 1st Respondent have continuously been tabled and discussed at the Senate level, thereby giving rise to the Senate Report for the year 2020; that it was determined in the said Report, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16536/eng@2025-10-23 3

page 3 of 8

that the alleged Sponsor of the 3rd Respondent had flooded the 1st Respondent’s Board of Trustees with a number of its employees, in contravention of the law and that in the absence of a Fixed Asset Register, it is difficult and impossible to trace the value and movement of the properties pertaining to the 1st Respondent. 9. The 2nd Respondent, through its Senior Legal Officer, Mr. John Kimathi Gakunu, swore a Replying Affidavit on 26th February 2024 in response to the application. He has supported the averments of the 1st Respondent, that the application is frivolous, vexatious and unmerited. 10. He deposed, further, that in line with its mandate under Section 5 of the Retirement Benefits Act, the 2nd Respondent supervises the management of the 1st Respondent; that as far as he was aware, the Board of Trustees of the 1st Respondent is properly constituted in compliance with the relevant Regulations and that no fault has been found as against the 2nd Respondent and hence the application ought to be dismissed, with costs to the 2nd Respondent. 11. On its part, the 3rd Respondent has put in Grounds of Opposition dated 18th March 2024 in which it is argued, in sum, that the application is frivolous, scandalous, vexatious and incurably defective; that the orders sought therein have since been overtaken by events; that the Applicant has no locus standi to bring the present proceedings against the Respondents herein and that the aforesaid application lacks merit for the reason that the Senate made a finding that the appointment of the Board of Trustees of the 1st Respondent was made in compliance with the Retirement Benefits Regulations, 2000. 12. The 3rd Respondent has relied on the replying affidavit sworn by its Acting General Manager-Legal Services & CS, Mr. Stanley Gitari, on 27th March 2025, in which he has deposed that the suit ought to be struck out for want of jurisdiction, since the Applicant did not follow due process by firstly issuing a written notice to the Managing Director of the 3rd Respondent as required under Section 87 of the Kenya Railways Corporation Act; that the issues arising in the application concern matters that have already been overtaken by events and that due process was followed in the appointment of the Trustees of the 1st Respondent and hence the application is ultimately lacking in merit. 13. In a rejoinder, Munayi Isaac Opondo has sworn a further affidavit on 19th May 2025 on behalf of the Applicant in which hhe has deposed that the replying affidavit sworn on behalf of the 3rd Respondent was filed out of time and without leave of the court; that in any event, the main application is the first application, which raises the pertinent substantive issues set out therein; that the issue relating to whether the Applicant has locus standi before this court is now moot, the same having been previously raised and determined by the court in the present matter, as well as by the Employment and Labour Relations Court (ELRC) in a separate matter involving the parties herein, with the respective courts unanimously determining that the Applicant had legal standing to bring the present claim and that the substantive issues being raised in the first application have not been specifically responded to. Submissions 14. The parties argued the application orally. Mr. Munayi for the Applicant, argued that the pertinent issue arising in the application concerns the Legal Notice No. 5441 of 2020 issued by the then Head of State, appointing the two (2) persons referenced in the application, as Directors of the 3rd Respondent; that the said appointments were set to last for two (2) years upon which they were to expire; that upon expiry of the terms, the 3rd Respondent purported to extend the tenure for Mr. Mogwanja through an authorization letter by one Mr. Gitau for the 3rd Respondent; that the 3rd Respondent had no legal authority to extend such tenure, since Section 7 of the State Corporations Act provides that it is only the Head of State who has the powers to do so; that this court has the power to regularize the position, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16536/eng@2025-10-23 4

page 4 of 8

as sought in the application as well as to seek clarification as to whether Mr. Mogwanja continues to execute his role in the 3rd Respondent. 15. The Applicant further argued that as related to the second issue arising in the application, the Fixed Assets Register, pursuant to Legal Notice No. 169 of 2006, the 2nd Respondent is required to maintain a Fixed Assets Register of the 3rd Respondent; that despite the Applicant’s requests for the said Assets Register to be availed, there has been non-compliance; and that the various assets of the 3rd Respondent are being disposed of without the requisite monitoring process. 16. The Applicant submitted, in regard to the third issue on governance structure, that the Trustees purporting to act for the 1st Respondent constitute employees of the 3rd Respondent; that in the premises, the application ought to be allowed as prayed. 17. Mr. Gitau, advocate for the 1st Respondent, placed reliance on the Grounds of Opposition and replying affidavits on record. He submitted that no evidence has been tendered to support the averments being made by and on behalf of the Applicant; that Mr. Mogwanja left upon expiry of his term; that minutes have been tendered to indicate the manner in which all relevant meetings were held and that in any case, Mr. Munayi lacks the locus standi to bring the present suit and proceedings on behalf of the Applicant herein. Counsel has maintained that the 1st Respondent is properly constituted and that it has performed its requisite duties in a proper manner, ensuring to report to the 3rd Respondent at all material times. 18. Mr. Wetunga, counsel for the 2nd Respondent, associated himself with the submissions made by his counterpart, save to add that there is no law that expressly provides for the production of the documents being sought under prayer (iv) of the application; that the said prayer ought to be directed at the 1st Respondent who is the custodian of the material document; that the 2nd Respondent on its part took all necessary steps to implement the Senate Report and that no proper orders are sought against it. 19. Mr. Kamande, advocate for the 3rd Respondent, relied on the Grounds of Opposition and replying affidavit on record for his client. He further contended that there exists no substantive suit; that there is no locus standi on the part of the Applicant; that the 2nd Respondent offered clarification as to the manner in which it advised the 1st Respondent on the relevant appointments and hence it was not necessary to have the suit filed and that the application ought to be struck out with costs. 20. In a rejoinder, Mr. Munayi restated his earlier submission, that even upon expiry of his term in office, Mr. Mogwanja continued to perform his duties; that it is yet to be clarified whether his position has since been filled; that as per the Senate Report, the 2nd Respondent was directed to regularize the position regarding its employees and that the Applicant has the legal capacity to bring the present suit. 21. The Governor-County Government of Nairobi (the 4th Respondent) and the Hon. Attorney General (the Interested Party) did not participate in the instant proceedings. Analysis and Determination 22. I have considered the Application, the grounds in support of it and the responses and Grounds of Opposition filed to oppose the application. Initially on 27th February 2025, this court had directed that the three applications, the Notice of Motion dated 9th August 2023, the Notice of Motion dated 11th August 2023 and the Notice of Motion dated 20th November 2023 be canvassed together. However, on 23rd June 2025, the Applicant sought to withdraw the Notice of Motion dated 11th August 2023 and the Notice of Motion dated 20th November 2023. The 1st, 2nd and 3rd Respondents did not oppose that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16536/eng@2025-10-23 5

page 5 of 8

application save for the costs arising from those applications. This was allowed. The only application pending determination, therefore, is the Notice of Motion dated 9th August 2023. 23. Before addressing the merits of the application, I have noted that two issues were raised at the preliminary level: whether the replying affidavit sworn on behalf of the 3rd Respondent on 27th March 2025 should be expunged from the record for being filed out of time and without leave of the court and whether the first application is competently before this court. 24. Upon a perusal of the record, it is apparent that when the matter came up in court on 13th February 2025, counsel for the 3rd Respondent indicated that he would be filing responses to the respective applications. The matter was slated for directions on 27th February 2025 on which date, this court granted the Respondents an additional period of 14 days within which to put in their respective replies. 25. The record shows that the Replying Affidavit was filed about one (1) month following the directions given on 27th February 2025, hence out of time and without leave of the court. In the circumstances, I agree with the applicant that the Replying Affidavit sworn by Mr. Stanley Gitari on the 27th March 2025 was filed out of time and without leave of the court. Consequently, the same is hereby expunged from the court record. 26. Regarding the second preliminary issue whether the first application is competently before this court, I have considered the averment by the 1st and 3rd Respondents in particular, that the Applicant has no locus standi to bring the present proceedings. 27. Upon perusal of the record, I have noted that previously, the 3rd Respondent had filed a preliminary objection dated 18th August 2023 challenging the Applicant’s suit and the application on various grounds inter alia, that the suit is sub judice by virtue of ELC Misc. Application No. E067 of 2023 involving the same parties and the same subject matter; and that the Applicant is not recognized as a juridical person for purposes of instituting a claim in its own name. 28. As per the record, the preliminary objection was heard by Ongeri, J. who by way of her ruling delivered on 26th January 2024, determined, inter alia, that the issues being raised by the Applicant did not relate to the provisions of the Trust Deed and are not anticipated in the Arbitration Clause in the Trust Deed and that the provision of an alternative dispute resolution mechanism in the Trust Deed would not necessarily oust the jurisdiction of the court. The Learned Judge therefore dismissed the preliminary objection. 29. The record further shows that the 3rd Respondent similarly filed a preliminary objection dated 28th August 2024 also challenging the Applicant’s locus standi to commence the present suit, which preliminary objection was also dismissed, vide a ruling delivered on 16th January 2025. 30. From the foregoing, it is apparent that the issue whether the suit and by extension, the application, are competently before this court, has been canvassed and determined. The same cannot therefore be revisited in this application. 31. Turning to the merits of the application, I have noted that the Applicant filed written submissions in which he opted to abandon prayers (vi) and (vii) of the Application. While making his oral submissions, Mr. Munayi did not mention this. I will however concentrate on prayers (iii), (iv) and (v). Prayers (iii) and (iv) are interrelated. The Applicant, in sum, seeks an order directing the 2nd and 3rd Respondents to have the Nominated and Approved Trust Deeds of Appointments of all the alleged Trustees at the 1st Respondent’s Board tabled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16536/eng@2025-10-23 6

page 6 of 8

32. Upon a consideration of the rival averments made and which are set out hereinabove, and a perusal of the various documents tendered in support thereof, I have observed that by way of his replying affidavit sworn on 13th March 2024 on behalf of the 1st Respondent, deponent Isaac Sila has tendered a copy of the Deed of Appointment dated 24th July 2023 marked as Annexture “IS-2”. The same sets out the then newly appointed, re-appointed/re-elected, continuing and retiring Trustees of the 1st Respondent. 33. The said deponent also swore a separate replying affidavit on 26th February 2025 where he has annexed a separate copy of a Deed of Appointment dated 27th January 2025 marked as Annexture “IS-2” which appears to contain names of the new, continuing and retiring Trustees of the 1st Respondent. 34. From the foregoing, it is apparent that the Deeds of Appointment sought under the aforementioned prayers (iii) and (iv) have since been availed. 35. I have noted that the Applicant has also sought a copy of the Fixed Assets Register pertaining to the 1st Respondent, under prayer (iii). Upon consideration of the averments made by the Applicant in support of the above prayers and while noting that no response was given by the 2nd Respondent on this particular subject, it is apparent that the Applicant purports that the Trustees of the 1st Respondent have allegedly failed to maintain a valid and current Fixed Assets Register thereby making it difficult to track the assets of the 1st Respondent and further giving opportunity for the potential irregular disposal of the said assets. 36. From the court’s perusal of the material on record, it is apparent that the Trust Deeds and Rules dated 3rd May 2006 and annexed to the replying affidavit of Isaac Sila sworn on 13th March 2024 marked as Annexture “IS-1”, Clause 17 stipulates that Trustees are to keep a proper and conclusive record of all accounts, liabilities, income, expenditure and assets belonging to the 1st Respondent and shall furnish such records to the 3rd Respondent (being the Sponsor) as required. Rule 18 thereof further provides for the manner and preparation of the audited accounts and reports, and that the same shall be made available for inspection by the members, within the stipulated timelines. 37. Be that as it may, it is my considered view that the orders sought by the Applicant pertaining to the above issue should await the full hearing of the suit in order for the court to acquaint itself with all the issues involved in this dispute and make an informed decision based on the evidence that will be tendered. In so finding, I am satisfied that the Applicant will not suffer prejudice by waiting a little bit longer to have this matter heard fully. Consequently, I decline to grant prayers (iii) and (iv). 38. As pertains to prayer (v) seeking that the Interested Party herein be directed to table in court the relevant Kenya Gazette Notice that either renewed and or extended the term of the purported Chairman of the 1st Respondent as a Director of the 3rd Respondent, I have observed that the issue of the appointment of the said Chairman; Mr. Mogwanja constitutes one of the key issues arising for determination in the present suit. Consequently, prayer (v) is also declined. 39. In conclusion, it is my finding that the Notice of Motion dated 9th August 2023 lacks merit and is hereby dismissed with costs to the 1st, 2nd and 3rd Respondents. The 1st, 2nd and 3rd Respondents shall also have the costs of the withdrawn Notices of Motion dated 11th August 2023 and 20th November 2023. 40. Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 23RD OCTOBER 2025. S. N. MUTUKU https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16536/eng@2025-10-23 7

page 7 of 8

JUDGE In the presence of: Mr. Munayi representing the Plaintiff/Applicant Ms Mungai for the 1st Defendant/Respondent Ms Wetunga for the 2nd Defendant/Respondent Mr. Kamande for the 3rd Defendant/Respondent Ms Amutavi for the 4th Defendant/Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16536/eng@2025-10-23 8

page 8 of 8