1. The Application that forms the subject of this ruling is the one dated 30th January 2026 wherein the Applicants seek the following orders:
1) Spent.
2) Spent.
3) That this Honourable Court be pleased to grant leave to the Applicants herein to apply for an order of CERTIORARI to remove into this Honourable court for the purpose of quashing the Respondent's Judgment dated 2nd October 2025 in RBAT Tribunal Appeal No. 7 of 2011 Boniface Mariga & 948 others vs The Retirement Benefits Authority, The Board of Trustees, Teleposta Pension Scheme and Provident Fund.
4) That this Honourable Court be pleased to grant leave to the Applicant herein to apply for an order of MANDAMUS be issued compelling the 1st Respondent to determine the amended Appeal dated 11th March 2025 in accordance with the Retirement Benefits Acts and the Teleposta Pension Scheme Rules.
5) That cost of this Application be provided for.
The Applicant's Case:
2. That the Exparte Applicants are former employees of Telcom Kenya and members of the 2nd Interested party being Teleposta Pension Scheme and Provident Fund.
3. Being dissatisfied with the calculation and underpayment of their pension benefits by the Trustees,the Exparte Applicants filed a complaint on 9th September 2011.
4. The 1st Interested Party rendered its decision dated 3rd October 2012 stating that the Complainants benefits were properly calculated and found no merit in the Exparte Applicants Complaint and dismissed it save for two complaints in whose favour the decision was rendered.
5. The Exparte Applicants were dissatisfied with the 1st Interested Party's decision and consequently filed an Appeal with the Respondent dated 17th October 2012 being RBAT Appeal No, 7 of 2011; Boniface Mariga & 948 Others — vs Retirement Benefits Authority & Another.
6. That the Respondent rendered itself on the Exparte Applicants Appeal on 13th February 2017 where it decided in favour of the Exparte Applicants.
7. The 2nd Interested Party dissatisfied with the Respondent's decision filed a Judicial Review Application being Miscellaneous Application 141 of 2017 Republic -vs Retirement Benefits Appeals Tribunal & 2 others & Exparte Applicants seeking and order of certiorari to quash the decision of the Respondent and an order of prohibition to prohibit its enforcement.
8. The High Court on 16 August 2023 held that the 2nd Interested Party's judicial review Application was an appeal disguised as a judicial review, and therefore incompetent, frivolous, an abuse of the court process, and dismissed it.
9. Dissatisfied, the 1st Interested Party appealed to the Court of Appeal, which on 20 December 2024 overturned the High Court's decision. It allowed the appellant's motion dated 11 April 2017, set aside the Respondent's decision of 13 February 2017, and remitted the dispute to the Respondents for rehearing under RBAT Appeal No. 7 of 2011,
10. The Appeal as remitted back to this Tribunal for re-hearing vide an order contained in the judgment of the Court of Appeal sitting in Nairobi in The Board of Trustees, Teleposta Pension scheme vs Retirement Benefits Appeals Tribunal, the Honourable the Attorney General, Retirement Benefits Authority, Bonface Mariga & 948 others, Civil Appeal E767 of 2023.
11. An amended Appeal dated 11th March 2025 was filed before the Retirement Benefits Appeals Tribunal (the Respondent).
12. By a judgment dated 2nd October 2025 the Respondent dismissed the Applicants’ appeal and ordered that the decision of the 2nd Interested Party dated 3rd October 2012 be upheld.
13. They argue that the Respondent acted improperly and to the prejudice of the Exparte Applicants by failing to specify the amounts it considered correctly computed and paid, and by relying on alleged data inconsistencies without requiring supporting evidence from the scheme's data custodian. It also failed to recognize that pension increases were not applied to the Applicants' deferred pensions and reached conclusions without proof of calculations according to them.
14. They also argued that the Respondent erred in law by not finding that, as members of a defined benefit scheme, the Applicants were entitled to one-third of the actuarial value of their deferred pensions rather than a refund of contributions and that it failed to acknowledge chat the scheme rules did not authorize the Application of discounting factors in benefit calculations.
15. The Respondent relied disproportionately on the 1st Interested Party's Actuarial Reports while disregarding the independent Actuarial Evidence adduced by the Exparte Applicants which to the Applicants is prejudicial to them.
16. They argue that the Respondent's judgment lacked clear and reasoned findings on the key issue of how the Exparte Applicants' retirement benefits were computed.
17. They are also concerned that it also failed to publish or close the actuarial factors applicable to deferred pensions before pension access age.
18. The Respondent without providing any analysis or reasons, disregarded the detailed Actuarial Report by Mr. Darshan Ruparelia dated 10th June 2025 and the oral testimonies of Mr. Darshan Ruparelia and Mr. George Oloo and instead relied solely on the 1st Interested Party's Actuarial Report, thereby creating an imbalance in the evaluation of evidence which is contrary to Section 4 of the Fair Administrative Action Act which the Applicants are dissatisfied with.
19. They argued that the Respondent erred in law and fact by failing to appreciate the oral testimony of Peter K. Rotich who stated that the members under the Provident Fund have not been paid and their funds are still with the 1st Interested Party.
20. The Respondent's decision to uphold the 2nd Interested Party' s decision dated 3rd October 2012 is ultra vires, illegal, procedurally improper, irrational, unreasonable and most importantly grossly prejudicial to the rights of the Applicants herein.
The Respondent’s Grounds of Opposition;
21. The Respondent filed the grounds opposition dated wherein they argue that by naming the Retirement Benefits Appeals Tribunal as a Respondent in these proceedings, the Application challenges the judicial decision of the Tribunal in a manner that is at odds with the adversarial nature of our legal system and the immunity that judicial officers and courts enjoy against litigation founded on their judicial decisions.
22. It is its case that whereas its decisions or orders can be challenged before a higher court, the Respondent – being a subordinate court under Article 169(1)(d) of the Constitution, cannot be sued on the basis of its judicial decisions.
23. It argues that litigation to challenge judicial decisions, whether by appeal or review as aforesaid, should be between the parties to the suit. At no time should the Court be dragged into the arena of conflict by being joined as a party.
24. The Respondent, and its presiding officers, should not be called upon to defend the soundness or otherwise of the court’s decision before another court and the judicial decision of the Respondent is not administrative action that is amenable to judicial review.
25. It argues that the grounds raised in support of the Application can be raised as grounds for appeal against the judicial decision of the Respondent.
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:
26. The applicable law that guides the court in deciding whether or not leave to commence judicial review proceedings can be granted is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no Application for judicial review orders should be made unless leave of the court was sought and granted.
27. The rationale that informs why an applicant must seek leave was explained by Waki J (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 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”.
28. 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 Applicant’s case is sufficiently meritorious to justify leave.
29. 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.
30. In Republic v National Transport & Safety Authority & 10 others [20141 eKLR, in Kihingo Village (Waridi Gardens) Management Limited v Attorney General & 2 others (Judicial Review 169 of 2023) [20231 KEHC 26714 (KLR) 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.”
31. The court is satisfied that Applicants have made out a prima facie case that has to be heard on merit.
Disposition;
32. The Application has merit
Order;
1) The Application is allowed.
2) This file is closed.
3) The Applicants shall file and serve the substantive suit within 14 days which shall be in a separate file.
4) The Respondents and the interested parties shall thereafter file and serve their responses within 14 days of the date of service of the Application.
5) The Applicants shall thereafter file and serve their submissions within 7 days of the date of service.
6) The Respondents and the interested parties shall file and serve their submissions within 7 days thereafter.
Dated, signed and delivered at Nairobi this 20th day of February, 2026.
1) Spent.
2) Spent.
3) That this Honourable Court be pleased to grant leave to the Applicants herein to apply for an order of CERTIORARI to remove into this Honourable court for the purpose of quashing the Respondent's Judgment dated 2nd October 2025 in RBAT Tribunal Appeal No. 7 of 2011 Boniface Mariga & 948 others vs The Retirement Benefits Authority, The Board of Trustees, Teleposta Pension Scheme and Provident Fund.
4) That this Honourable Court be pleased to grant leave to the Applicant herein to apply for an order of MANDAMUS be issued compelling the 1st Respondent to determine the amended Appeal dated 11th March 2025 in accordance with the Retirement Benefits Acts and the Teleposta Pension Scheme Rules.
5) That cost of this Application be provided for.
The Applicant's Case:
2. That the Exparte Applicants are former employees of Telcom Kenya and members of the 2nd Interested party being Teleposta Pension Scheme and Provident Fund.
3. Being dissatisfied with the calculation and underpayment of their pension benefits by the Trustees,the Exparte Applicants filed a complaint on 9th September 2011.
4. The 1st Interested Party rendered its decision dated 3rd October 2012 stating that the Complainants benefits were properly calculated and found no merit in the Exparte Applicants Complaint and dismissed it save for two complaints in whose favour the decision was rendered.
5. The Exparte Applicants were dissatisfied with the 1st Interested Party's decision and consequently filed an Appeal with the Respondent dated 17th October 2012 being RBAT Appeal No, 7 of 2011; Boniface Mariga & 948 Others — vs Retirement Benefits Authority & Another.
6. That the Respondent rendered itself on the Exparte Applicants Appeal on 13th February 2017 where it decided in favour of the Exparte Applicants.
7. The 2nd Interested Party dissatisfied with the Respondent's decision filed a Judicial Review Application being Miscellaneous Application 141 of 2017 Republic -vs Retirement Benefits Appeals Tribunal & 2 others & Exparte Applicants seeking and order of certiorari to quash the decision of the Respondent and an order of prohibition to prohibit its enforcement.
8. The High Court on 16 August 2023 held that the 2nd Interested Party's judicial review Application was an appeal disguised as a judicial review, and therefore incompetent, frivolous, an abuse of the court process, and dismissed it.
9. Dissatisfied, the 1st Interested Party appealed to the Court of Appeal, which on 20 December 2024 overturned the High Court's decision. It allowed the appellant's motion dated 11 April 2017, set aside the Respondent's decision of 13 February 2017, and remitted the dispute to the Respondents for rehearing under RBAT Appeal No. 7 of 2011,
10. The Appeal as remitted back to this Tribunal for re-hearing vide an order contained in the judgment of the Court of Appeal sitting in Nairobi in The Board of Trustees, Teleposta Pension scheme vs Retirement Benefits Appeals Tribunal, the Honourable the Attorney General, Retirement Benefits Authority, Bonface Mariga & 948 others, Civil Appeal E767 of 2023.
11. An amended Appeal dated 11th March 2025 was filed before the Retirement Benefits Appeals Tribunal (the Respondent).
12. By a judgment dated 2nd October 2025 the Respondent dismissed the Applicants’ appeal and ordered that the decision of the 2nd Interested Party dated 3rd October 2012 be upheld.
13. They argue that the Respondent acted improperly and to the prejudice of the Exparte Applicants by failing to specify the amounts it considered correctly computed and paid, and by relying on alleged data inconsistencies without requiring supporting evidence from the scheme's data custodian. It also failed to recognize that pension increases were not applied to the Applicants' deferred pensions and reached conclusions without proof of calculations according to them.
14. They also argued that the Respondent erred in law by not finding that, as members of a defined benefit scheme, the Applicants were entitled to one-third of the actuarial value of their deferred pensions rather than a refund of contributions and that it failed to acknowledge chat the scheme rules did not authorize the Application of discounting factors in benefit calculations.
15. The Respondent relied disproportionately on the 1st Interested Party's Actuarial Reports while disregarding the independent Actuarial Evidence adduced by the Exparte Applicants which to the Applicants is prejudicial to them.
16. They argue that the Respondent's judgment lacked clear and reasoned findings on the key issue of how the Exparte Applicants' retirement benefits were computed.
17. They are also concerned that it also failed to publish or close the actuarial factors applicable to deferred pensions before pension access age.
18. The Respondent without providing any analysis or reasons, disregarded the detailed Actuarial Report by Mr. Darshan Ruparelia dated 10th June 2025 and the oral testimonies of Mr. Darshan Ruparelia and Mr. George Oloo and instead relied solely on the 1st Interested Party's Actuarial Report, thereby creating an imbalance in the evaluation of evidence which is contrary to Section 4 of the Fair Administrative Action Act which the Applicants are dissatisfied with.
19. They argued that the Respondent erred in law and fact by failing to appreciate the oral testimony of Peter K. Rotich who stated that the members under the Provident Fund have not been paid and their funds are still with the 1st Interested Party.
20. The Respondent's decision to uphold the 2nd Interested Party' s decision dated 3rd October 2012 is ultra vires, illegal, procedurally improper, irrational, unreasonable and most importantly grossly prejudicial to the rights of the Applicants herein.
The Respondent’s Grounds of Opposition;
21. The Respondent filed the grounds opposition dated wherein they argue that by naming the Retirement Benefits Appeals Tribunal as a Respondent in these proceedings, the Application challenges the judicial decision of the Tribunal in a manner that is at odds with the adversarial nature of our legal system and the immunity that judicial officers and courts enjoy against litigation founded on their judicial decisions.
22. It is its case that whereas its decisions or orders can be challenged before a higher court, the Respondent – being a subordinate court under Article 169(1)(d) of the Constitution, cannot be sued on the basis of its judicial decisions.
23. It argues that litigation to challenge judicial decisions, whether by appeal or review as aforesaid, should be between the parties to the suit. At no time should the Court be dragged into the arena of conflict by being joined as a party.
24. The Respondent, and its presiding officers, should not be called upon to defend the soundness or otherwise of the court’s decision before another court and the judicial decision of the Respondent is not administrative action that is amenable to judicial review.
25. It argues that the grounds raised in support of the Application can be raised as grounds for appeal against the judicial decision of the Respondent.
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:
26. The applicable law that guides the court in deciding whether or not leave to commence judicial review proceedings can be granted is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no Application for judicial review orders should be made unless leave of the court was sought and granted.
27. The rationale that informs why an applicant must seek leave was explained by Waki J (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 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”.
28. 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 Applicant’s case is sufficiently meritorious to justify leave.
29. 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.
30. In Republic v National Transport & Safety Authority & 10 others [20141 eKLR, in Kihingo Village (Waridi Gardens) Management Limited v Attorney General & 2 others (Judicial Review 169 of 2023) [20231 KEHC 26714 (KLR) 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.”
31. The court is satisfied that Applicants have made out a prima facie case that has to be heard on merit.
Disposition;
32. The Application has merit
Order;
1) The Application is allowed.
2) This file is closed.
3) The Applicants shall file and serve the substantive suit within 14 days which shall be in a separate file.
4) The Respondents and the interested parties shall thereafter file and serve their responses within 14 days of the date of service of the Application.
5) The Applicants shall thereafter file and serve their submissions within 7 days of the date of service.
6) The Respondents and the interested parties shall file and serve their submissions within 7 days thereafter.
Dated, signed and delivered at Nairobi this 20th day of February, 2026.