1. The Court is called upon to determine two applications, namely:
a. The Notice of Motion dated 30th April 2026 by the Trustees of the Kenya Ports Authority Pension Scheme, seeking, inter alia, the discharge and setting aside of the Garnishee Order Nisi issued on 23rd April 2026, and the striking out of the garnishee proceedings.
b. The Notice of Motion dated 23rd June 2026 seeking stay and setting aside of warrants of attachment and all consequential execution proceedings commenced before the Retirement Benefits Appeals Tribunal (RBAT).
2. As both applications arise from execution of the same decree and involve substantially the same parties, they shall be determined in this ruling simultaneously.
3. The Applicants/Decree Holders are pensioners of the Kenya Ports Authority Pension Scheme. Following proceedings before the Retirement Benefits Appeals Tribunal, judgment was delivered on 28th April 2022. Thereafter, an independent actuarial report was commissioned and considered by the Tribunal. Subsequently, the Tribunal rendered a ruling on 29th January 2026, and a decree was issued on 16th April 2026 directing, among other things, payment of pension arrears amounting to Kshs. 477,799,000 to qualifying pensioners within sixty (60) days.
4. The decree remaining unsatisfied, the pensioners moved this Court through garnishee proceedings dated 22nd April 2026. On 23rd April 2026, this Court issued a Garnishee Order Nisi against Stanbic Bank Kenya Limited attaching monies held on behalf of the Trustees and/or the Scheme pending determination of the application.
5. The Trustees thereafter filed the application dated 30th April 2026 seeking to set aside the Garnishee Order Nisi and challenging the propriety of the garnishee proceedings.
6. While that application remained pending before this Court, the pensioners moved the Retirement Benefits Appeals Tribunal and obtained warrants of attachment dated 4th June 2026 in execution of the same decree. This prompted the filing of the second application dated 23rd June 2026.
7. Having considered the pleadings, affidavits and submissions filed by the parties, the Court is of the view that the following issues arise for determination:
i. Whether the Garnishee Order Nisi issued on 23rd April 2026 ought to be discharged.
ii. Whether the execution proceedings commenced before the Retirement Benefits Appeals Tribunal ought to be allowed to proceed.
iii. What orders ought to issue.
Analysis and Determination
Whether the Garnishee Order Nisi should be discharged
8. The Trustees contend that the funds held in the attached account constitute pension funds protected from attachment under section 36 of the Retirement Benefits Act.
9. The Pensioners, on the other hand, contend that the decree being executed relates to pension benefits due and payable to members of the Scheme and that the Trustees cannot invoke statutory protection intended for the benefit of pensioners in order to defeat payment of pension benefits lawfully decreed by the Tribunal.
10. I have carefully considered the rival arguments. There is no dispute that the Tribunal directed payment of Kshs. 477,799,000 to pensioners found entitled to pension arrears. There is equally no dispute that the decretal amount remained substantially unpaid long after the period granted by the Tribunal for compliance had lapsed.
11. The Court accepts that section 36 of the Retirement Benefits Act provides important protection to pension funds. However, the present case presents an unusual circumstance. The persons seeking execution are not external creditors of the Scheme. They are beneficiaries of the Scheme seeking payment of pension benefits which have already been adjudged and declared payable by the Tribunal.
12. The Court is therefore not persuaded that section 36 can be invoked as an absolute shield against satisfaction of a decree issued in favour of pensioners for payment of pension benefits.
13. The Court is consequently not satisfied that sufficient grounds have been demonstrated for discharge of the Garnishee Order Nisi solely on the basis advanced by the Trustees.
14. The application dated 30th April 2026 therefore fails.
Whether the Tribunal execution proceedings should be allowed to proceed
15. The Court now turns to the application dated 23rd June 2026. The chronology of events is not disputed.
16. The pensioners first invoked the execution jurisdiction of this Court through garnishee proceedings. The Court issued a Garnishee Order Nisi on 23rd April 2026. The Trustees challenged those proceedings through the application dated 30th April 2026.
17. Accordingly, questions concerning execution of the decree and the legality of the garnishee process became matters actively pending before this Court. While those proceedings remained pending, the Pensioners moved before the Tribunal and obtained warrants of attachment dated 4th June 2026 in respect of the same decree.
18. The issue before the Court is not whether the Pensioners are entitled to the fruits of their judgment. They unquestionably are. The issue is whether they were entitled to pursue simultaneous execution processes before different fora in respect of the same decree while disputes concerning execution of that decree remained pending before this Court.
19. I take guidance from the decision of the Court of Appeal in Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] Keca 453 (Klr), where the Court discussed the inherent jurisdiction of courts to prevent abuse of process and multiplicity of proceedings. In that decision, the Court adopted the definition of abuse of judicial process enunciated in the Nigerian Case of KARIBU-WHYTIE J Sc in SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188-189 (e), where it was stated that:
“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice ….”
The Court further observed that abuse of process may manifest itself in several ways, including the institution of multiple actions between the same parties over the same subject matter; commencing different proceedings simultaneously in different courts involving substantially the same dispute; employing multiple procedures in pursuit of the same relief; or invoking court processes that are frivolous, vexatious or lacking any legitimate legal foundation.
20. In the present case, it is not disputed that the Decree Holders had already invoked the execution jurisdiction of this Court through the garnishee proceedings arising from the Tribunal decree. While the challenge to those proceedings remained pending before this Court, the Decree Holders proceeded to initiate execution proceedings before the Retirement Benefits Appeals Tribunal in respect of the same decree and obtained warrants of attachment.
21. The effect of those concurrent proceedings was to place before two different fora competing execution processes arising from the same decree, thereby creating the possibility of conflicting decisions and undermining the orderly administration of justice. In the circumstances, I am satisfied that the commencement and continuation of the parallel execution proceedings amounts to an abuse of the court process within the meaning contemplated in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others (supra).
22. The continuation of simultaneous execution proceedings before both the High Court and the Tribunal carries an obvious risk of conflicting orders and duplication of judicial processes.
23. In light of that finding, it is unnecessary to make a pronouncement on whether the Retirement Benefits Appeals Tribunal possesses jurisdiction to execute its own decrees.
24. Accordingly, the Court makes the following orders:
a. T he Notice of Motion dated 30th April 2026 is dismissed.
b. The Garnishee Order Nisi issued on 23rd April 2026 is hereby confirmed and shall remain in force pending satisfaction of the decretal sum or further orders of the Court.
c. The Notice of Motion dated 23rd June 2026 is allowed.
d. The warrants of attachment issued by the Retirement Benefits Appeals Tribunal on 4th June 2026 together with all consequential execution processes arising therefrom are hereby set aside.
e. The Decree Holders shall pursue execution of the decree through the proceedings presently before this Court and shall not maintain parallel execution proceedings before the Tribunal in respect of the same decree.
f. Costs shall be in the cause.
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
………………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr Tindika Advocate for the Applicant
Mr. Oyoo Advocate for the Respondent
a. The Notice of Motion dated 30th April 2026 by the Trustees of the Kenya Ports Authority Pension Scheme, seeking, inter alia, the discharge and setting aside of the Garnishee Order Nisi issued on 23rd April 2026, and the striking out of the garnishee proceedings.
b. The Notice of Motion dated 23rd June 2026 seeking stay and setting aside of warrants of attachment and all consequential execution proceedings commenced before the Retirement Benefits Appeals Tribunal (RBAT).
2. As both applications arise from execution of the same decree and involve substantially the same parties, they shall be determined in this ruling simultaneously.
3. The Applicants/Decree Holders are pensioners of the Kenya Ports Authority Pension Scheme. Following proceedings before the Retirement Benefits Appeals Tribunal, judgment was delivered on 28th April 2022. Thereafter, an independent actuarial report was commissioned and considered by the Tribunal. Subsequently, the Tribunal rendered a ruling on 29th January 2026, and a decree was issued on 16th April 2026 directing, among other things, payment of pension arrears amounting to Kshs. 477,799,000 to qualifying pensioners within sixty (60) days.
4. The decree remaining unsatisfied, the pensioners moved this Court through garnishee proceedings dated 22nd April 2026. On 23rd April 2026, this Court issued a Garnishee Order Nisi against Stanbic Bank Kenya Limited attaching monies held on behalf of the Trustees and/or the Scheme pending determination of the application.
5. The Trustees thereafter filed the application dated 30th April 2026 seeking to set aside the Garnishee Order Nisi and challenging the propriety of the garnishee proceedings.
6. While that application remained pending before this Court, the pensioners moved the Retirement Benefits Appeals Tribunal and obtained warrants of attachment dated 4th June 2026 in execution of the same decree. This prompted the filing of the second application dated 23rd June 2026.
7. Having considered the pleadings, affidavits and submissions filed by the parties, the Court is of the view that the following issues arise for determination:
i. Whether the Garnishee Order Nisi issued on 23rd April 2026 ought to be discharged.
ii. Whether the execution proceedings commenced before the Retirement Benefits Appeals Tribunal ought to be allowed to proceed.
iii. What orders ought to issue.
Analysis and Determination
Whether the Garnishee Order Nisi should be discharged
8. The Trustees contend that the funds held in the attached account constitute pension funds protected from attachment under section 36 of the Retirement Benefits Act.
9. The Pensioners, on the other hand, contend that the decree being executed relates to pension benefits due and payable to members of the Scheme and that the Trustees cannot invoke statutory protection intended for the benefit of pensioners in order to defeat payment of pension benefits lawfully decreed by the Tribunal.
10. I have carefully considered the rival arguments. There is no dispute that the Tribunal directed payment of Kshs. 477,799,000 to pensioners found entitled to pension arrears. There is equally no dispute that the decretal amount remained substantially unpaid long after the period granted by the Tribunal for compliance had lapsed.
11. The Court accepts that section 36 of the Retirement Benefits Act provides important protection to pension funds. However, the present case presents an unusual circumstance. The persons seeking execution are not external creditors of the Scheme. They are beneficiaries of the Scheme seeking payment of pension benefits which have already been adjudged and declared payable by the Tribunal.
12. The Court is therefore not persuaded that section 36 can be invoked as an absolute shield against satisfaction of a decree issued in favour of pensioners for payment of pension benefits.
13. The Court is consequently not satisfied that sufficient grounds have been demonstrated for discharge of the Garnishee Order Nisi solely on the basis advanced by the Trustees.
14. The application dated 30th April 2026 therefore fails.
Whether the Tribunal execution proceedings should be allowed to proceed
15. The Court now turns to the application dated 23rd June 2026. The chronology of events is not disputed.
16. The pensioners first invoked the execution jurisdiction of this Court through garnishee proceedings. The Court issued a Garnishee Order Nisi on 23rd April 2026. The Trustees challenged those proceedings through the application dated 30th April 2026.
17. Accordingly, questions concerning execution of the decree and the legality of the garnishee process became matters actively pending before this Court. While those proceedings remained pending, the Pensioners moved before the Tribunal and obtained warrants of attachment dated 4th June 2026 in respect of the same decree.
18. The issue before the Court is not whether the Pensioners are entitled to the fruits of their judgment. They unquestionably are. The issue is whether they were entitled to pursue simultaneous execution processes before different fora in respect of the same decree while disputes concerning execution of that decree remained pending before this Court.
19. I take guidance from the decision of the Court of Appeal in Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] Keca 453 (Klr), where the Court discussed the inherent jurisdiction of courts to prevent abuse of process and multiplicity of proceedings. In that decision, the Court adopted the definition of abuse of judicial process enunciated in the Nigerian Case of KARIBU-WHYTIE J Sc in SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188-189 (e), where it was stated that:
“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice ….”
The Court further observed that abuse of process may manifest itself in several ways, including the institution of multiple actions between the same parties over the same subject matter; commencing different proceedings simultaneously in different courts involving substantially the same dispute; employing multiple procedures in pursuit of the same relief; or invoking court processes that are frivolous, vexatious or lacking any legitimate legal foundation.
20. In the present case, it is not disputed that the Decree Holders had already invoked the execution jurisdiction of this Court through the garnishee proceedings arising from the Tribunal decree. While the challenge to those proceedings remained pending before this Court, the Decree Holders proceeded to initiate execution proceedings before the Retirement Benefits Appeals Tribunal in respect of the same decree and obtained warrants of attachment.
21. The effect of those concurrent proceedings was to place before two different fora competing execution processes arising from the same decree, thereby creating the possibility of conflicting decisions and undermining the orderly administration of justice. In the circumstances, I am satisfied that the commencement and continuation of the parallel execution proceedings amounts to an abuse of the court process within the meaning contemplated in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others (supra).
22. The continuation of simultaneous execution proceedings before both the High Court and the Tribunal carries an obvious risk of conflicting orders and duplication of judicial processes.
23. In light of that finding, it is unnecessary to make a pronouncement on whether the Retirement Benefits Appeals Tribunal possesses jurisdiction to execute its own decrees.
24. Accordingly, the Court makes the following orders:
a. T he Notice of Motion dated 30th April 2026 is dismissed.
b. The Garnishee Order Nisi issued on 23rd April 2026 is hereby confirmed and shall remain in force pending satisfaction of the decretal sum or further orders of the Court.
c. The Notice of Motion dated 23rd June 2026 is allowed.
d. The warrants of attachment issued by the Retirement Benefits Appeals Tribunal on 4th June 2026 together with all consequential execution processes arising therefrom are hereby set aside.
e. The Decree Holders shall pursue execution of the decree through the proceedings presently before this Court and shall not maintain parallel execution proceedings before the Tribunal in respect of the same decree.
f. Costs shall be in the cause.
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
………………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr Tindika Advocate for the Applicant
Mr. Oyoo Advocate for the Respondent