1. The Application that forms the subject of this ruling is the one dated 8th Day of August 2025 wherein the Applicant seeks the following orders:
1) THAT this Honourable Court be pleased to grant leave to the Applicant to apply for an order of Certiorari to remove into this Court and quash the decisions, acts, and/or omissions of the Respondents relating to the deferred pensions of the Applicants which matured in 2010 but have been unlawfully withheld.
2) THAT this Honourable Court be pleased to grant leave to the Applicant to apply for an order of Mandamus compelling the Respondents, jointly and severally, to forthwith pay the said deferred pensions together with accrued benefits to the Applicants.
3) THAT the leave so granted do operate as a stay of any further administrative action, omission, or enforcement by the Respondents relating to the said pensions pending the hearing and determination of the substantive motion.
4) THAT the costs of this Application be in the cause.
The Applicants’ Case;
2. It is their case that on 1st March 1997, the Applicants' pensions were deferred until attainment of retirement age.
3. When the deferred pensions matured in 2010,the 1st Respondent declined to honour its obligation.
4. The Applicants have pursued administrative and legal remedies without redress, and the Respondents continue to unlawfully withhold the said pensions.
5. It is the Applicants case that the CBK Pension Fund Trustees have a fiduciary duty to protect their interests as beneficiaries, hence their inclusion as Interested Party.
6. It is their case that the Respondents' actions and omissions are unlawful, unconstitutional, and in breach of the Fair Administrative Action Act, 2015.
7. They believe that this is a proper case for the grant of leave to commence Judicial Review proceedings.
The Applicant's Submissions;
8. The Applicants submit that the Respondent exercised its statutory and administrative authority in a manner that was unlawful, procedurally unfair, irrational, unreasonable, and in violation of legitimate expectation, thereby infringing their constitutional and legal rights.
9. The Applicants are former employees of the Central Bank of Kenya (CBK) who exited service under the Voluntary Early Retirement Scheme (VERS) of 1997, under which their pension benefits were deferred until they attained the statutory retirement age.
10. Upon attaining the statutory retirement age in 2010, the Applicants became eligible for release of their deferred pension benefits.However, the Respondent declined liability, and the pension benefits were not paid.
11. As a result of the Respondent’s refusal to release the pension benefits, the Applicants initiated a series of legal steps seeking clarification, accountability, and enforcement of their pension rights as provided in the Pension Act, the VERS Agreement, and applicable labour and administrative law principles.
12. In the course of pursuing redress, the Applicants discovered significant procedural and administrative irregularities by the Respondent in the handling of their pension matter.
13. Due to the Respondent’s continued refusal to process and release the pensions, the Applicants invoked the jurisdiction of this Honorable Court.
14. The Applicants’ case is that the Respondent acted unlawfully, unfairly, irrationally, and in breach of their legitimate expectation, thereby violating the Applicants’ rights to fair administrative action under Article 47 of the Constitution, as well as the procedural standards established under the Fair Administrative Action Act (FAAA).
15. The Applicants further assert that the Respondent’s conduct has occasioned undue financial hardship, loss of dignity, and prolonged uncertainty to a vulnerable group of retirees who have depended on the deferred pension as their livelihood in old age.
16. The Applicants submit that their right under Article 47 which guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair was violated.
17. They further rely on Section 4 of the FAA Act which codifies Article 47 rights and obligates public bodies to act fairly, issue prior notice, grant an opportunity to be heard, give written reasons, and avoid unreasonable delay.
18. They submit that Section 7 of the said Act empowers the court to review administrative action where any of the grounds set out therein are established.
19. The Applicants submit that the Respondent acted outside the powers conferred upon it by statute and the Constitution.
20. The Applicants rely on the principle that an administrative act is reviewable where it is so unreasonable that no reasonable decision maker, apprised of the relevant facts and law, would have arrived at it.
21. The Applicants submits that the Respondent failed to accord them a fair process, including adequate notice, reasons, disclosure of material relied upon, and an opportunity to be heard and Section 7 of the FAA Act can be invoked.
22. They place reliance in the case of Pastoli v. Kabale District Local Government Council & Others (2008) 2 EA 300.
The Applicants rely on the classic formulation that judicial review is concerned with the decision – making process and the grounds of illegality, irrationality and procedural impropriety.
23. In Republic v. Public Procurement Administrative Review Board & 2 others ex parte Pavecon Ltd (2019) eKLR
The court reiterated that failure to follow fair administrative procedures as required by Article 47 and the FAAA renders an administrative action unlawful.
24. In Republic v. Kenya Revenue Authority ex parte Yaya Towers Ltd (2008) eKLR The court held that an administrative decision that is unreasonable or unsupported by reason is amenable to judicial review.
25. The Applicants seek judicial review remedies under Articles 22, 23, 47 and 50 of the Constitution, Section 7, 8 and 11 of the Fair Administrative Action Act, and Order 53 of the Civil Procedure Rules, challenging the impugned administrative actions and omissions of the Respondent.
26. The Applicants contend that the Respondent exercised its statutory and administrative authority in a manner that was unlawful, procedurally unfair, irrational, unreasonable, and in violation of legitimate expectation, thereby infringing the Applicant’s constitutional and legal rights.
The 1st Respondent’s Case:
27. In opposing the Application the Respondent contends that the issue of leave to apply for orders of certiorari and mandamus in respect of the 3rd Respondent's Judgment in RBAT Civil Appeal No. 4 of 2010 delivered on 11th September 2013 was heard in Nairobi ELRC Judicial Review Application No. 9 of2015 R v. Retirement Benefits Authority & 3 Others Ex-parte George Williams Omondi & 210 Others and the same was dismissed.
28. The Respondent contends that the Application herein is frivolous, vexatious and an abuse of the court process.
The 1st Respondent’s Submissions;
29. It submits that the same prayers were sought by 211 of the Applicants herein in Nairobi ELRC Judicial Review Application No. 9 of 2015, R v. Retirement Benefits Authority & 3 Others Ex-parte George Williams Omondi & 210 Others.
30. The court, in a ruling delivered on 27th October 2016, held, inter alia, that:
i. The Application was filed over two years after the decision and was therefore out of time.
ii. The Law Reform Act does not provide for an extension of time, and Civil Procedure Rules cannot override statutory limitations.
iii. Applicants had previously pursued the matter on appeal with full legal advice.
iv. Judicial review proceedings must be instituted within statutory time limits to ensure finality of decisions.
a. ELRC Appeal No. 5 of 2014 (George Williams Omondi & 210 Others versus RBA & 2 Others) was adjudicated with final findings.
b. Nairobi ELRC Cause No. E588 of 2024 (Daniel Kirera & 549 Others vs. Central Bank of Kenya) was dismissed via ruling delivered on 28th March 2025.
31. These precedents demonstrate that the Applicants are filing repetitive Applications despite prior adjudication.
32. The present Application, disregarding previous rulings and established law, constitutes an abuse of court process. It is a clear attempt to circumvent statutory limitation periods and revive matters long settled.
Analysis and Determination;
The issue for determination is whether or not the Applicants have made out a case for the grant of the orders sought.
33. Order 53 Rule 1 of the Civil Procedure Rules, provides that no Application for judicial review orders should be made unless leave of the court was sought and granted.
34. In Republic v County Council of Kwale & Another Ex ParteKondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:
“The purpose of Application for leave to apply for judicial review is firstly to eliminate at an early stage any Applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the Applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an Application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived…Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive Application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
35. It is also trite that in an Application for leave, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an Applicants case is sufficiently meritorious to justify leave.
36. In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that the leave of court is a prerequisite to making a substantive Application for Judicial Review with a view to filtering out frivolous Applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the Applicant has an arguable case. Thus, the first step in the Judicial Review procedure involves the mandatory "leave stage." At this stage an Application for leave to bring Judicial Review proceedings must first be made. The leave stage as held by Waki J is used to identify and filter out, at an early stage, claims which may be trivial or without merit.
37. In Republic v National Transport & Safety Authority & 10 others [20141 eKLR, in Kihingo Village (WaridiGardens) Management Limited v Attorney General & 2 others (Judicial Review 169 of 2023) [20231 KEHC 26714 (KLR) (Judicial Review) (20 December 2023) (Ruling) in granting leave to the Applicant to file judicial review it was held that;
“I have carefully perused through the record and submissions a prima facie case is established to warrant the grant of the leave sought.”
38. The Applicants have made out a prima facie case that has to be heard on merit.
39. The Applicants also sought an order that the leave so granted do operate as a stay of any further administrative action, omission, or enforcement by the Respondents relating to the said pensions pending the hearing and determination of the substantive motion.
40. The same is declined since no evidence was tendered to support this prayer.
Disposition;
41. The Applicants have made out a prima case that justifies the grant of the orders sought.
Order;
1) Leave is hereby granted to the Applicants to apply for an order of Certiorari to remove into this Court and quash the decisions, acts, and/or omissions of the Respondents relating to the deferred pensions of the Applicants which matured in 2010 but have been unlawfully withheld.
2) Leave is hereby granted to the Applicants to apply for an order of Mandamus compelling the Respondents, jointly and severally, to forthwith pay the said deferred pensions together with accrued benefits to the Applicants.
3) The prayer that the leave so granted do operate as a stay of any further administrative action, omission, or enforcement by the Respondents relating to the said pensions pending the hearing and determination of the substantive motion is declined.
4) The Applicants shall file and serve the substantive suit within 14 days in a separate file.
5) This file is marked as closed.
Dated, signed and delivered at Nairobi this 30th day of March, 2026.
1) THAT this Honourable Court be pleased to grant leave to the Applicant to apply for an order of Certiorari to remove into this Court and quash the decisions, acts, and/or omissions of the Respondents relating to the deferred pensions of the Applicants which matured in 2010 but have been unlawfully withheld.
2) THAT this Honourable Court be pleased to grant leave to the Applicant to apply for an order of Mandamus compelling the Respondents, jointly and severally, to forthwith pay the said deferred pensions together with accrued benefits to the Applicants.
3) THAT the leave so granted do operate as a stay of any further administrative action, omission, or enforcement by the Respondents relating to the said pensions pending the hearing and determination of the substantive motion.
4) THAT the costs of this Application be in the cause.
The Applicants’ Case;
2. It is their case that on 1st March 1997, the Applicants' pensions were deferred until attainment of retirement age.
3. When the deferred pensions matured in 2010,the 1st Respondent declined to honour its obligation.
4. The Applicants have pursued administrative and legal remedies without redress, and the Respondents continue to unlawfully withhold the said pensions.
5. It is the Applicants case that the CBK Pension Fund Trustees have a fiduciary duty to protect their interests as beneficiaries, hence their inclusion as Interested Party.
6. It is their case that the Respondents' actions and omissions are unlawful, unconstitutional, and in breach of the Fair Administrative Action Act, 2015.
7. They believe that this is a proper case for the grant of leave to commence Judicial Review proceedings.
The Applicant's Submissions;
8. The Applicants submit that the Respondent exercised its statutory and administrative authority in a manner that was unlawful, procedurally unfair, irrational, unreasonable, and in violation of legitimate expectation, thereby infringing their constitutional and legal rights.
9. The Applicants are former employees of the Central Bank of Kenya (CBK) who exited service under the Voluntary Early Retirement Scheme (VERS) of 1997, under which their pension benefits were deferred until they attained the statutory retirement age.
10. Upon attaining the statutory retirement age in 2010, the Applicants became eligible for release of their deferred pension benefits.However, the Respondent declined liability, and the pension benefits were not paid.
11. As a result of the Respondent’s refusal to release the pension benefits, the Applicants initiated a series of legal steps seeking clarification, accountability, and enforcement of their pension rights as provided in the Pension Act, the VERS Agreement, and applicable labour and administrative law principles.
12. In the course of pursuing redress, the Applicants discovered significant procedural and administrative irregularities by the Respondent in the handling of their pension matter.
13. Due to the Respondent’s continued refusal to process and release the pensions, the Applicants invoked the jurisdiction of this Honorable Court.
14. The Applicants’ case is that the Respondent acted unlawfully, unfairly, irrationally, and in breach of their legitimate expectation, thereby violating the Applicants’ rights to fair administrative action under Article 47 of the Constitution, as well as the procedural standards established under the Fair Administrative Action Act (FAAA).
15. The Applicants further assert that the Respondent’s conduct has occasioned undue financial hardship, loss of dignity, and prolonged uncertainty to a vulnerable group of retirees who have depended on the deferred pension as their livelihood in old age.
16. The Applicants submit that their right under Article 47 which guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair was violated.
17. They further rely on Section 4 of the FAA Act which codifies Article 47 rights and obligates public bodies to act fairly, issue prior notice, grant an opportunity to be heard, give written reasons, and avoid unreasonable delay.
18. They submit that Section 7 of the said Act empowers the court to review administrative action where any of the grounds set out therein are established.
19. The Applicants submit that the Respondent acted outside the powers conferred upon it by statute and the Constitution.
20. The Applicants rely on the principle that an administrative act is reviewable where it is so unreasonable that no reasonable decision maker, apprised of the relevant facts and law, would have arrived at it.
21. The Applicants submits that the Respondent failed to accord them a fair process, including adequate notice, reasons, disclosure of material relied upon, and an opportunity to be heard and Section 7 of the FAA Act can be invoked.
22. They place reliance in the case of Pastoli v. Kabale District Local Government Council & Others (2008) 2 EA 300.
The Applicants rely on the classic formulation that judicial review is concerned with the decision – making process and the grounds of illegality, irrationality and procedural impropriety.
23. In Republic v. Public Procurement Administrative Review Board & 2 others ex parte Pavecon Ltd (2019) eKLR
The court reiterated that failure to follow fair administrative procedures as required by Article 47 and the FAAA renders an administrative action unlawful.
24. In Republic v. Kenya Revenue Authority ex parte Yaya Towers Ltd (2008) eKLR The court held that an administrative decision that is unreasonable or unsupported by reason is amenable to judicial review.
25. The Applicants seek judicial review remedies under Articles 22, 23, 47 and 50 of the Constitution, Section 7, 8 and 11 of the Fair Administrative Action Act, and Order 53 of the Civil Procedure Rules, challenging the impugned administrative actions and omissions of the Respondent.
26. The Applicants contend that the Respondent exercised its statutory and administrative authority in a manner that was unlawful, procedurally unfair, irrational, unreasonable, and in violation of legitimate expectation, thereby infringing the Applicant’s constitutional and legal rights.
The 1st Respondent’s Case:
27. In opposing the Application the Respondent contends that the issue of leave to apply for orders of certiorari and mandamus in respect of the 3rd Respondent's Judgment in RBAT Civil Appeal No. 4 of 2010 delivered on 11th September 2013 was heard in Nairobi ELRC Judicial Review Application No. 9 of2015 R v. Retirement Benefits Authority & 3 Others Ex-parte George Williams Omondi & 210 Others and the same was dismissed.
28. The Respondent contends that the Application herein is frivolous, vexatious and an abuse of the court process.
The 1st Respondent’s Submissions;
29. It submits that the same prayers were sought by 211 of the Applicants herein in Nairobi ELRC Judicial Review Application No. 9 of 2015, R v. Retirement Benefits Authority & 3 Others Ex-parte George Williams Omondi & 210 Others.
30. The court, in a ruling delivered on 27th October 2016, held, inter alia, that:
i. The Application was filed over two years after the decision and was therefore out of time.
ii. The Law Reform Act does not provide for an extension of time, and Civil Procedure Rules cannot override statutory limitations.
iii. Applicants had previously pursued the matter on appeal with full legal advice.
iv. Judicial review proceedings must be instituted within statutory time limits to ensure finality of decisions.
a. ELRC Appeal No. 5 of 2014 (George Williams Omondi & 210 Others versus RBA & 2 Others) was adjudicated with final findings.
b. Nairobi ELRC Cause No. E588 of 2024 (Daniel Kirera & 549 Others vs. Central Bank of Kenya) was dismissed via ruling delivered on 28th March 2025.
31. These precedents demonstrate that the Applicants are filing repetitive Applications despite prior adjudication.
32. The present Application, disregarding previous rulings and established law, constitutes an abuse of court process. It is a clear attempt to circumvent statutory limitation periods and revive matters long settled.
Analysis and Determination;
The issue for determination is whether or not the Applicants have made out a case for the grant of the orders sought.
33. Order 53 Rule 1 of the Civil Procedure Rules, provides that no Application for judicial review orders should be made unless leave of the court was sought and granted.
34. In Republic v County Council of Kwale & Another Ex ParteKondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:
“The purpose of Application for leave to apply for judicial review is firstly to eliminate at an early stage any Applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the Applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an Application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived…Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive Application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
35. It is also trite that in an Application for leave, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an Applicants case is sufficiently meritorious to justify leave.
36. In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that the leave of court is a prerequisite to making a substantive Application for Judicial Review with a view to filtering out frivolous Applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the Applicant has an arguable case. Thus, the first step in the Judicial Review procedure involves the mandatory "leave stage." At this stage an Application for leave to bring Judicial Review proceedings must first be made. The leave stage as held by Waki J is used to identify and filter out, at an early stage, claims which may be trivial or without merit.
37. In Republic v National Transport & Safety Authority & 10 others [20141 eKLR, in Kihingo Village (WaridiGardens) Management Limited v Attorney General & 2 others (Judicial Review 169 of 2023) [20231 KEHC 26714 (KLR) (Judicial Review) (20 December 2023) (Ruling) in granting leave to the Applicant to file judicial review it was held that;
“I have carefully perused through the record and submissions a prima facie case is established to warrant the grant of the leave sought.”
38. The Applicants have made out a prima facie case that has to be heard on merit.
39. The Applicants also sought an order that the leave so granted do operate as a stay of any further administrative action, omission, or enforcement by the Respondents relating to the said pensions pending the hearing and determination of the substantive motion.
40. The same is declined since no evidence was tendered to support this prayer.
Disposition;
41. The Applicants have made out a prima case that justifies the grant of the orders sought.
Order;
1) Leave is hereby granted to the Applicants to apply for an order of Certiorari to remove into this Court and quash the decisions, acts, and/or omissions of the Respondents relating to the deferred pensions of the Applicants which matured in 2010 but have been unlawfully withheld.
2) Leave is hereby granted to the Applicants to apply for an order of Mandamus compelling the Respondents, jointly and severally, to forthwith pay the said deferred pensions together with accrued benefits to the Applicants.
3) The prayer that the leave so granted do operate as a stay of any further administrative action, omission, or enforcement by the Respondents relating to the said pensions pending the hearing and determination of the substantive motion is declined.
4) The Applicants shall file and serve the substantive suit within 14 days in a separate file.
5) This file is marked as closed.
Dated, signed and delivered at Nairobi this 30th day of March, 2026.