KENYA AIRLINE PILOTS ASSOCIATION VS KENYA AIRWAYS PUBLIC LIMITED COMPANY

1. The Petitioner filed a Notice of Motion Application dated 13^th June, 2022 brought under Articles 48 and 159(2) of the Constitution and Rule 33(1) (a) of the ELRC  Procedure Rules,2016 seeking for orders that the Court be pleased to reinstate Petition No. E005 of 2021 that was struck out by Hon. Lady Justice M. Mbaru on 20^th December 2021 and accordingly finds that the Petition is now mature and rightfully before it as the Retirement Benefits Authority (RBA) has declined to adjudicate the dispute on the basis that it does not have the statutory powers.
2. The Application was supported by the grounds set on the face of the Application and supporting affidavit sworn by Levi Munyeri the advocate on record for the Petitioner who averred that:
   1. The Petitioner filed a Petition dated 16^th April,2021 against the Respondent seeking for orders compelling the Respondent to permanently reinstate the Petitioner’s contributions to Kenya Airways Provident Fund.
   2. The Respondent raised a PO dated 24^th May,2021 challenging the court’s jurisdiction to entertain a pension dispute in view of express provisions of section 46 & 48 of the RBA that provides for dispute resolution mechanism for such disputes.
   3. The Petitioner sought to dismiss the PO alleging that though the dispute emanates from a pension scheme, the parties in this petition where employer-employee and the dispute arose from breach of employment contracts and CBA.
   4. The court held that the same was premature as the Respondent had not exhausted the mechanism for dispute resolution under the Act. That the Petitioner complied with court guidance and filed a formal review application before RBA seeking that it compels the Respondent to remit member’s contribution to Kenya Airways Provident Fund for months of January-June, 2020 together with interest.
   5. The RBA replied exhaustibly to the application by expressly stating that it did not have the statutory powers under the RBA to determine the dispute as it involved employer-employee. That the RBA further found that the Retirement Benefits Appeals Tribunal only sits on appeal of the Chief Executive Officers decision and was therefore out of reach when the authority has declined to adjudicate on the dispute.
   6. That on RBA declining to hear the dispute between the parties herein the dispute was now mature and ripe for determination before this court. That unless the court allows this application and reinstates the suit for hearing and determination the Petitioner will remain without avenue to be heard on the constitutionality of the Respondents decision to fail to remit members contributions to Kenya Airways Staff Provident Fund.
   7. The Court had certified the matter as urgent yet it remains unheard for more than a year hence the delay in its determination to the detriment of the Petitioner. That the reinstatement as sought by the Petitioner will occasion no prejudice to the Respondent who will have a chance to impugn the Petition on its merits.
3. In reply the Respondent filed its Replying Affidavit through one Moses Ombokh, the Respondent’s Senior Manager- Industrial Relations, sworn on 11^th December, 2024 who averred: -
   1. That the Respondent runs the Kenya Airways Limited Staff Provident Fund whose main purpose is the provision of lump sum and other benefits for employees of the founder upon the retirement from the service of a founder and relief for the dependent of the deceased member.
   2. That the Applicant instituted a petition dated 16^th April 2021 and in response the Respondent filed a Notice of Preliminary Objection challenging the jurisdiction of court. That Hon. Lady Justice Monica Mbaru delivered a ruling in respect of the PO on 20^th, December,2021 and held that once a Trust Deed was registered by parties it became regulated under RBA Act and Regulations and there existed a comprehensive framework under the RBA Act to resolve such disputes under section 46 & 48 of the Act and court did not have original jurisdiction.
   3. That in response to the Application it had filed a PO that the court had no jurisdiction to entertain the application as it had become functus officio having struck out the Petition and that the application was res judicata in view of express provision of section 7 of the Civil Procedure Act.
   4. That on 10^th November, 2022 Hon. Lady Justice Monica Mbaru delivered her ruling in respect of the PO and the court noted that a suit struck out through a court order ceases to exist and is removed from the record and that for it to determine whether it was functus officio or whether the suit was res judicata it must hear the application on its merits. The Court further noted that to lock out the Applicant before delving in the application would be draconian and would deny the Applicant the chance to urge its case and application.
   5. That the Court has never held it has jurisdiction in any of its previous rulings delivered on 20^th December, 2021 and 10^th November 2022 and that the dispute subject of the petition does not relate to an employer -employee relationship. That the Petition arose from the decision of the Respondent to run the fund as a closed fund and CBA between the parties is clear that administration of the scheme shall be in accordance with Rules of the Scheme. That the dispute subject of the Petition did not relate to an employer and employee relationship.
   6. That the court has no jurisdiction to entertain the pension dispute in view of the express provisions of sections 46 and 48 of the RBA Act and that the court has no jurisdiction to entertain the Application as it became functus officio having struck out the Petition in its ruling of 20^th December 2021. That the Application is Res Judicata.
4. The Application was disposed of by written submissions.

PETITIONER’S SUBMISSIONS

1. The Petitioner’s advocates Kimani, Kiarie & Associates Advocates filed written submissions dated 27^th September,2024 and on the issue of whether the court has powers to reinstate the Petition herein counsel submitted that the sole reason the Petition was struck out was because it was premature. That the Petitioner complied with the Court’s ruling by filing the complaint at RBA who wrote back that the nature of the dispute was outside its statutory mandate hence it could not resolve it.
2. Counsel submitted that the court had powers to reinstate the struck-out Petition by invoking its inherent powers to subvert a grave injustice of the magnitude that was unfolding in this dispute as the Petitioner will remain without a forum to ventilate its constitutional grievance. Counsel relied on the case of Kenya Power & Lighting Company Ltd v Benzene Holdings Limited t/a Wyco Paints (2016) eKLR where the Court of Appeal cemented the primacy of inherent powers of the court in averting injustices.
3. On the issue of whether the reinstatement of the Petition is pursuant to Petitioner’s constitutional right of access to justice counsel relied on article 48 of the Constitution stating that the Petitioner filed this Petition in 2021 and three years later the Petition is yet to be heard and determined. That the court was the only available forum for the Petitioner to seek justice. That reinstatement of the Petition will enable the parties proceed without further delay and save the precious judicial time that would otherwise be squandered if a fresh Petition which the Petitioner is entitled to is to be filed by the Petitioner.

RESPONDENT’S SUBMISSIONS

1. The Respondent’s advocates TripleOKLaw LLP Advocates filed written submissions dated 11^th December,2024 and on the issue of whether this court had jurisdiction to hear this matter counsel submitted that the Petitioner in its Petition at Paragraph 5 appreciates that the Respondent Staff Provident Fund is established under Trust Deed dated 22^nd January, 2018. That the dispute does not relate to employer-employee relationship but arises from decision of the Respondent to run the fund as a closed fund.
2. Counsel submitted that this court is guided by the Supreme Court decision in Albert Chaurembo Mumba & 7 Others vs Maurice & 148 Others, Supreme Court Petition No.3 of 2016 where the court held that ELRC had no jurisdiction to hear and determine a dispute that relates to trustees of a pension scheme and members of the scheme. That the jurisdiction of the ELRC is at outlined under section 12(1) of the ERLC Act.
3. Counsel further relied on the case of Jimmy R Kavilu & 16 Others vs Stanibic Bank Kenya Limited & 7 Others (2019) eKLR where the court held that the only instance the court would be seized of the matter would be in a judicial review application contesting the decision of the Retirement Benefits Tribunals. Counsel also relied on among others the case of Orange Democratic Movement vs Yusuf Ali Mohamed & 5 Others (2018) eKLR where the Court of Appeal held that a party cannot through its pleadings confer jurisdiction to a court when none exists and if a court continues to determine a matter without jurisdiction the outcome can be set aside as a nullity.
4. Counsel submitted that as per the prayers sought in the Petition the same was filed in a court devoid of jurisdiction. That the dispute herein concerns a Fund that got approval of the RBA to be run as a closed fund. That a member or beneficiary of the Fund being dissatisfied with the decision of the Trustees to run the fund as a closed one was required under section 46 of the Act to seek recourse from the CEO at the first instance. That the Petitioner was neither a member nor a beneficiary of the scheme to have any authority to institute any legal proceedings against the said decision. That the Petitioner did not seek a review or an appeal of the Court’s decision of 20^th December,2021 striking out the Petition for want of jurisdiction.
5. On the issue of whether the court is functus officio counsel relied on among others the case of Telkom Kenya Limited v John Ochanda(Suing on his own Behalf and on behalf of 996 Former employees of Telkom Kenya Limited) (2014) eKLR on the doctrine of functus officio. Counsel relied on section 99 of the Civil Procedure Act on the exceptions to the doctrine of functus officio and the reinstatement did not fall among those exceptions and the only remedy the Petitioner had was an appeal or review.
6. On the issue of whether the matter was res judicata counsel relied on section 7 of the Civil Procedure Act and among others the case of Charles Wepukhulu V Bungoma Teachers Cooperative Savings & Credit Society Ltd (2015) eKLR where the court observed that reinstating a suit already struck out for jurisdiction would not help since the court does not have jurisdiction.
7. On the issue of whether the reinstatement of the Petition is pursuant to the Petitioner’s Constitutional rights counsel relied on the case of Bernard Murage  vs Finserve Limited 7 Others (2015) eKLR where the court held that the mere allegation that a human right has been or is likely to be contravened is not itself sufficient to entitle applicant to invoke the jurisdiction of the court if the allegation is frivolous as is made to avoid the necessity of applying the normal way for appropriate remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.
8. Counsel submitted that the Petitioner is attempting to elevate what is clearly a pension dispute to the Constitutional platform in order to avoid necessity of applying for relief within the framework provided in law. That the constitutional right of access to justice under Article 48 of the Constitution must be exercised in accordance with the law which includes adherence to statutory frameworks designed to provide specialized avenues for dispute resolution.

DETERMINATION

1. The Court has given due consideration to the parties’ respective positions as deposed and submitted. This application is brought under Rule 33(1)(a) of this Court's (ELRC) Procedure Rules, 2016 which provides that: -

"A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time apply for a review of the judgment or ruling-

a) If there is discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;

b) On account of some mistake or error on the face of the record;

c) If the judgment or ruling requires clarification;

d) For any other sufficient reason.

1. Conversely, the Petitioner is seeking orders of reinstatement but relying on review orders which it should have stated clearly since it was its intention. The Petitioner states that the sole reason why the court struck out the Petition was because it was premature and that it complied with the Court's Ruling and filed a complaint to the Retirement Benefits Authority (RBA) to resolve the dispute between the parties herein who in turn wrote back and stated that nature of the dispute is outside its statutory mandate and hence it cannot resolve it.  In essence then the Petitioner seeks a review of the court’s ruling due to the new developments herein.
2. On the other hand, it is the Respondent’s case that the court is functus officio and lacks jurisdiction to determine the present application. That the Petitioner could only approach this court via a review or appeal after the court rendered its decision that it did not have jurisdiction to entertain this dispute which was the premise of the RBA. That the Petitioner could challenge the administrative actions of the RBA Tribunals through Judicial Review and not through this Petition. That this application is res judicata after the court pronounced itself that it did not have jurisdiction.
3. The court agrees with the parties that the Petition arose due to the Respondent’s trustee decision to have the fund as a closed fund. The Petitioner alleged that this was an employer-employee issue and there was breach of contract and CBA by the employer. The RBA wrote back to the Petitioner’s Advocates stating that this dispute was not one within its mandate as it was within employer and the Association on remitting of retirement dues which amounted to breach of contract and CBA.
4. As observed by the Respondent in the case of Albert Chaurembo Mumba & 7 Others vs Maurice & 148 Others, Supreme Court Petition No.3 of 2016 the Supreme Court held that ELRC had no jurisdiction to hear and determine a dispute that relates to trustees of a pension scheme and members of the scheme. The Respondent admitted that the Petitioner was not a member or a beneficiary of the Scheme but was challenging its decision on behalf of its members who were employees of the Respondent.
5. It is not in dispute that there existed a Trust Deed and CBA where the fund would be regulated by the Rules and regulations of the staff Provident Fund Scheme. The RBA Act under section 46 provided as follows: _

46. Appeals to the Chief Executive Officer

(1) Any member of a scheme who is dissatisfied with a decision of the manager, administrator, custodian or trustees of the scheme may request, in writing, that such decision be reviewed by the Chief Executive Officer with a view to ensuring that such decision is made in accordance with the provisions of the relevant scheme rules or the Act under which the scheme is established.

1. The Petitioner ought to have first sought audience to the CEO and if dissatisfied with the decision of the CEO or the Authority appeal to the Retirement Benefits Tribunal under section 48 within 30 days. It is after the Tribunals decision that the Petitioner could approach the court. It is for the same reason the court directed the Petitioner to exhaust the internal administrative mechanisms first. The Petitioner obeyed the court’s ruling and wrote to the Director who wrote back that the RBA had no mandate as this dispute involved employer-employee relationship which was a breach of contract and CBA.
2. The Petitioner was therefore left with the court as the only avenue to ventilate the issue. In this case the RBA has already stated that the dispute is not within its mandate but this court under section 12 of the ELRC Act.
3. In an application for reinstatement of a dismissed suit or application, an applicant appeals to the discretion of the Court. The Court must caution itself not to exercise its discretion in a manner that will result in an injustice. This position is fortified in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLR, where the Court of Appeal stated:

We agree with those noble principles which go further to establish that the court's discretion to set aside an exparte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice…. 

1. This court therefore asks itself if this application falls within the exceptions of the functus officio doctrine after the court pronounced itself that it does not have jurisdiction and also if it falls within the exception of the exhaustion doctrine of administrative remedies. The Petitioner should satisfy the exceptions to the functus officio rule set out under section 99 of the Civil Procedure Act which capture more or less issues to do with review which is what the Petitioner seeks in essence.
2. The doctrine of exhaustion of Administrative remedies is provided for under Section 9 of the Fair Administrative Action Act and the exceptions to the same under section 9(4) should be exceptional in the interest of justice and are as stated in the case of Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR the Court of Appeal while determining whether a litigant can be exempt from the doctrine of exhaustion held thus,

“Whereas courts of Law are enjoined to defer to specialized Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.”

1. In this case the Petitioner has illustrated that this case will fall within the exception to the exhaustion principle in the interest of justice since it has no other avenue apart from this court to ventilate its issues.  The Petition was then premature but after the new developments herein the Petitioner should be allowed to ventilate their issues. The Court should also invoke its inherent jurisdiction to serve justice in the circumstances. The Respondent’s allegations that the Petitioner should approach the Court through judicial Review should not be entertained since article 159(2) of the Constitution seeks to do justice to parties without giving regard to technicalities and in any event a Petition is broad enough and a party can therein seek Judicial Review orders.
2. In the premises, the court orders reinstatement of the Petitioner’s petition.
3. Matter set for mention on 7^th April, 2025 for direction on hearing and disposal.
4. It is so ordered.

Dated at Nairobi this…………day of ………….. 2025

Delivered virtually this…………day of ………….. 2025

Abuodha Nelson Jorum

Presiding Judge-Appeals Division