' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW APPLICATION NO. E118 OF 2025
(Formerly High Court Judicial Review No. 85 of 2017) and subsequently Formerly Nairobi ELRC No. 37 of 2018
IN THE MATTER OF THE RETIREMENT BENEFITS ACT, 1997
AND
IN THE MATTER OF THE RETIREMENT BENEFITS (TRIBUNAL) RULES 2010
AND
IN THE MATTER OF THE CIVIL PROCEDURE ACT
AND
IN THE MATTER OF THE CIVIL PROCEDURE RULES 2010
AND
IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF THE RETIREMENT BENEFITS APPEALS TRIBUNAL
AND
IN THE MATTER OF TRIBUNAL APPEAL NO. 8 OF 2010
ELIAS MAINA MURUGI AND 133 OTHERS.......................APPELLANTS
VERSUS
RETIREMENT BENEFITS AUTHORITY...................1ST RESPONDENT
NATIONAL BANK OF KENYA STAFF
RETIREMENT BENEFITS SCHEME..........................2ND RESPONDENT
NATIONAL BANK OF KENYA STAFF PENSION
FUND REGISTERED TRUSTEES................................3RD RESPONDENT
BETWEEN
NATIONAL BANK OF KENYA
STAFF RETIREMENT BENEFITS SCHEME.................1ST APPLICANT
NATIONAL BANK OF KENYA
STAFF PENSION FUND REGISTERED TRUSTEES....2ND APPLICANT
VERSUS
RETIREMENT BENEFITS APPEAL TRIBUNAL......1ST RESPONDENT
ELIAS MAINA MURIGI AND
133 OTHERS………………………………….2ND – 84TH RESPONDENTS
RETIREMENT BENEFITS AUTHORITY.................85TH RESPONDENT
JUDGMENT
This matter has been litigated and relitigated upon. Since it was filed in this Court in February, 2017, certified as urgent, heard exparte on the application for leave to apply and leave to operate as stray on 1st March 2017 by none other than myself when I was serving my first term in this Judicial Review Division, it has moved from this Court, between different Judges, all of whom have since been elevated to the Court of Appeal, transferred to the employment and Labour Relations Court by consent, on account of jurisdiction, heard on jurisdiction and merit, the judgment of ELRC by Maureen Onyango J appealed to the Court of Appeal and the file returned to the Employment and Labour Relations Court with an order from the Court of Appeal that the file be returned to its origin, which is this High Court for hearing and determination on merit.
The main reason for the matter circulating from this Court to the ELRC and back has been the mystery surrounding jurisdiction to hear and determine the dispute involving members of the Retirement Benefits Scheme and the Scheme Administrators and Sponsors.
It is gratifying to know that the Court of Appeal finally settled that issue of jurisdiction. However, the merits of the dispute remains untouched to date, although in the Employment and Labour Relations Court, the learned judge, Maureen Onyango J did make a merit determination which was nonetheless challenged on account of jurisdiction as well as the merits of the decision, but the Court of appeal upon finding that the ELRC had no jurisdiction to hear and determine the dispute, did not make any merit determination of the appeal and returned the matter to the High Court, the Court of origin, to consider the merits thereof.
On the part of this Court, as soon as the file was availed, the hearing has been fast-tracked and here is the determination, in less than four months, according with dictates of Articles 47 and 159 of the Constitution that justice shall not be delayed.
When returning the file to this Court, the Court of Appeal stated as follows:
“We have carefully read the entire record particularly the pleadings. The dispute between the parties does to arise from an employer/employee relationship. In fact, as at the time the dispute arose, the 2nd to 84th respondents had ceased to be employees of the bank. The dispute involved computation of their benefits under the pension scheme. The issues raised in this case were settled with finality by the Supreme Court in Albert Chaurembo Mumba & 7 Others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the in the Registered Trustees of Kenya Ports Authority Pensions Scheme) vs. Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and Other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, (P.M. Mwilu D.C.J & V-P, Ojwang, Wanjala, Njoki & Lenaola SCJJ) where it held:-
“[146] In our view, once a member leaves the employment of a Sponsor, by becoming a pensioner, there is no longer a relationship of employer-employee that exists between such a pensioner and the sponsor. The relationship that exists in that case becomes that of trustee and beneficiaries (members) of a trust and that relationship is governed by the Retirement Benefits Act, Trustee Act Cap 167 of the laws of Kenya and the general common law on the law of trusts. It is important to note that nowhere in the Employment and Labour Relations Court Act is there jurisdiction conferred on the Employment and Labour Relations court to resolve issues between trustees of a pension scheme and members of the scheme (pensioners).”
The above being the correct interpretation of the law, we are clear in our minds that the ELRC had no jurisdiction to entertain the dispute relating to computation and payment of the 2nd to 84th respondents’ claim relating to computation and payment of their pension benefits under their pension scheme.
Therefore, the High Court improperly transferred Judicial Review Application No. 85 of 2018 to the ELRC for hearing and determination. It is settled law that jurisdiction cannot be conferred by consent of judicial craft. This position was appreciated by the Supreme Court in Isaac Aluoch Polo Aluochier vs. Independent Electoral and Boundaries Commission & Others & 19 Others [2013] eKLR as follows:
“A court cannot expand its jurisdiction through judicial craft or innovation. See S.K. Macharia and Another v. Kenya Commercial Bank Ltd. & 2 Others, Sup. Ct. Civil Application No. 2 of 2011; [2012] eKLR. Nor can a party confer on a court power it does not have. Similarly, parties cannot by mutual consent confer jurisdiction when there is none.”
In the premises, we allow this appeal, set aside the judgement of Onyango, J. dated 31st January, 2020 issued in Judicial Review Application No. 37 of 2018 in its entirety. Considering that the matter was not heard on merits and that the parties by consent requested the Court to transfer the case to the ELRC, it is our view that it would be unfair for this Court to allow the respondents to bear the consequence of the transfer, yet it was by consent. Accordingly, we order that the appellants’ Judicial Review proceedings be remitted to the High Court, Judicial Review Division, for hearing and determination on merits pursuant to Rule 33 of this Court’s Rules. Costs shall abide by the outcome of the Judicial Review Application.”
Therefore, although the case number for this matter appears to be a 2025, this case has been in various courts for now over eight years. I trust that with the anticipated merit determination, this Court will find favour in wisdom and be relieved of the oscillation so that the decision that it will render will be acceptable by both parties to the dispute and even if either one of them shall be aggrieved, they will have the opportunity to challenge the merits thereof to the higher court.
The facts of this case have been rehashed by both the ELRC and the Court of Appeal and therefore I will not reinvent the wheel. I will reproduce those facts and circumstances giving rise to the dispute as summarized by the two courts and move on to determine the main issues.
As restated by the Court of Appeal, the facts which elicited the litigation before this Court are fairly straightforward. Substantially, those facts are not contested. The 2nd to 84th respondents are former employees of the National Bank of Kenya (the Bank). By virtue of their employment, they were members of the National Bank of Kenya Staff Retirement Benefits Scheme (the Scheme). In that capacity, the 2 nd to 84 th respondents were entitled to their pension benefits as provided in the Trust Deed and Rules of the Scheme.
Upon ceasing being employees of the Bank, majority of them by way of redundancy, they were paid their benefits as per the redundancy/retirement letters filed into court. However, they discovered that they had been underpaid and so, they protested that their pension benefits were not calculated in accordance with the Scheme Rules and so, they filed a complaint before the Retirement Benefits Authority (the Authority- 85th respondent) in accordance with Section 46 of the Retirement Benefits Act. their complaint was dismissed.
Aggrieved by the dismissal of their complaint, they invoked Section 48 of the Retirement Benefits Act and appealed to the Retirement Benefits Appeals Tribunal (the 1st respondent herein-the Tribunal) in Tribunal Appeal No. 8 of 2010, seeking to set aside the said decision of the Authority and an order that the calculations prepared by their Actuary be upheld. By a decision dated 23rd February, 2012, the Tribunal allowed their appeal as follows:
(a) The Appeal be and is hereby allowed;
(b) The 2nd respondent does within thirty (30) days from today calculate and give to each of the appellants and/or beneficiaries a statement of account showing in detail how the benefits due are arrived at;
(c) If the full benefit is found not to have been paid by the 2nd respondent to any appellant or beneficiary the same be paid within thirty (30) days from today in accordance with the Scheme Rules of the 2nd respondent;
(d) In default of the 2nd respondent undertaking the activities stated in (b) and (c) above or any one of them within thirty (30) days from the date hereof, the 1st respondent do appoint an Interim Administrator to undertake the assignment at the cost of the 2nd respondent;
(e) There shall be liberty on either party to apply.
Following several execution applications, the applicants paid some amounts to the 2nd to 84th respondents and this is acknowledged in the proceedings of the Tribunal that indeed, there was no evidence that the recalculated sums had been settled in full. However, the 2nd to 84th respondents maintained that the said payments were not in tandem with the judgment which was in their favour. They therefore applied to the 85th respondent to appoint an Actuary to compute the amounts. Their application was allowed and a report of the Actuary was adopted vide a ruling delivered on 8th August, 2014 as follows:
(a) The actuarial report be and is hereby adopted as it is in accordance with the orders issued by the Tribunal on 25th June 2012;
(b) Subject to compliance with the Income Tax Act and/or any other statutory requirements and the variations in the Actuarial as set out below, the 2nd respondent is hereby directed to settle the appellants’ individual claim in the manner set out in appendix 1 and appendix 2 and 5 at pages 21 to 34 inclusive of the Actuarial Report. The variations are: -
1.Benefits Payable under the Rules, dated 4th January 1990-
(i) Voluntary Early Retirement – a commutation of a lump sum not exceeding Kshs.540,000.00 and the remainder be paid as a pension in periodical instalments in accordance with Rule 49 of the Rules less what has so far been paid if any:
(ii) Normal Retirement – a commutation of a lump sum not exceeding Kshs.540,000.00 and the remainder be paid as a pension in periodical instalments in accordance with Rule 49 of the Rules less what has so far been paid if any:
(iii) Medical Retirement – a sum calculated in accordance with Rules 12 and 13 less what has so far been paid, if any;
(iv) Death – a sum calculated in accordance with Rule 15 less what has so far been paid, if any;
(v) Other Terminations (Including Redundancies, Terminations, Resignations and Dismissals on or after 4th January, 1990 - a sum calculated in accordance with Rule 16 less what has so far been paid, if any;
(c)The 2nd respondent within thirty (30) days from the date hereof to furnish each of the appellants with a statement of account showing how the benefits paid or payable were calculated and arrived at:
(d) Paragraphs 14, 15.4, 16.3, 19, 22, 36, 39 and 56 of the Actuarial deleted from the records of the Tribunal;
(e) Each party shall bear its own costs.
10. By an application dated 2nd December, 2014 and amended on 17th September, 2015, the 2nd to 84th respondents applied to the 1st respondent for a decree in the sum of Kshs.136,095,357.00 and warrants of execution. By a ruling delivered on 13th February, 2017 , the 1st respondent directed the appellants to pay the 2nd to 84th respondents their unpaid pension in accordance with the Actuarial Valuation of NBC valuers.
Dissatisfied by the said ruling, the appellants filed Judicial Review Application No. 85 of 2017, the subject of these proceedings. Leave to apply was granted on 1 st March, 2017 and the leave so granted operated as stay of enforcement of the ruling. The 2nd to 84th respondents then filed an application challenging jurisdiction of this Court and seeking that the matter be transferred to the Employment and Labour Relations Court for hearing and final determination. That application was settled by consent, with all parties conceding to have the matter transferred to the Employment and Labour Relations Court (ELRC).
It is at the ELRC that the matter was heard on merit and dismissed by Maureen Onyango J but not without similar objections to jurisdiction being raised on appeal to the Court of Appeal which albeit it considered the matter as a whole, including the submissions on the merits of the appeal, it nonetheless singled out the issue of jurisdiction raised by the applicant herein and upon finding that the ELRC did not have jurisdiction in the matter which was not an employment and labour relations dispute, it directed that the file be returned to this Court for consideration of the merits of the judicial review application.
This is where we are, after parties reappeared before me and the court gave directions. There were off course initial challenges owing to the fact that the matter had been handled manually and now the parties were required to file the documents via the Court Case Tracking System yet they could not trace some of their pleadings and documents for uploading.
In their judicial review application, the applicants seek the following orders:
a) An Order of Certiorari to remove to quash the decision made by the Retirement Benefits Appeals Tribunal at Nairobi Civil Appeal No. 8 of 2010, Elias Maina Murigi & 133 Others vs Retirement Benefits Authority, National Bank of Kenya Staff Retirement Benefits Scheme and National Bank of Kenya Staff Pension Fund Registered Trustees to wit:
i. The 2nd respondent shall pay individually to each of the 83 appellants the sum in the first column set out against their respective names;
ii. The sum payable to each of the appellants in
(i) above be reduced by any sum paid after 8th August, 2014 if any;
iii. The 2nd respondent does collect all the tax, if any due on such payment;
iv. The 2nd respondent pays interest on the outstanding balance to each appellant at the rate earned by the scheme in each financial year until payment in full.
v. The appellants shall have costs of this application abide by the outcome of the judicial review case assessed at Kshs.10,000.00 payable by the respondent.
b) An order of mandamus directing the Retirement Benefits Appeals Tribunal to terminate further proceedings in Retirement Benefits Appeals Tribunal at Nairobi Civil Appeal Number 8 of 2010, Elias Maina Murigi & 133 Others vs Retirement Benefits Authority, National Bank of Kenya Staff Benefits Scheme and National Bank of Kenya Staff Pension Fund Registered Trustees.
c) That the costs of the suit be awarded to the ex- parte applicants.
The Judicial Review Application is supported by a statutory statement and a verifying affidavit both dated 27th February, 2017 and a supplementary affidavit sworn on 26th April, 2017 by Habil Waswani, the Company Secretary of National Bank, the applicants’ sponsor.
The 2nd to 84th respondents opposed the applicants’ judicial review application through a replying affidavit sworn on their behalf by Jack Leonard Gwalla, the 16th respondent on 5th April, 2019. They maintained that the ruling delivered on 13th February, 2017 was not done in excess of 1st respondent’s powers, that the applicants were not challenging the judgment delivered by the Tribunal, but rather its ruling made on applications to give effect to the judgment. They termed the exercise as futile and accused the applicants of filing the application to delay them from enjoying the fruits of the ruling delivered in their favour, being senior citizens now whose rights are guaranteed under Article 59 of the Constitution.
The 2nd to 84th respondents maintain that the 1st respondent had jurisdiction to hear and determine disputes by dint of Section 49 of the Retirement Benefits Act and that in doing so, it correctly interpreted the law and followed the Rules of natural justice in carrying out its mandate under the said section. They contend that the issues raised by the applicants related to merits of the case, therefore, this application is an appeal disguised as a Judicial Review Application, thus, the application is incompetent and fatally defective.
The 85th respondent stated that there being no direct claim against it, it did not file any response to the application. It maintains that it acted in accordance with Sections 46 and 48 of the Retirement Benefits Act and that its mandate in the matter automatically ceased.
Parties also filed written submissions canvassing the application. Those submissions were aptly captured by Maureen Onyango J in her judgment and I shall therefore reproduce them here with the parties’ counsel reiterating the depositions.
Submissions
The Applicants contend that the Retirement Benefits Appeals Tribunal acted in excess of its power by delivering its Ruling on 13th February, 2017 without any prior notice to the parties save for the 2nd to 84th Respondents herein and that they had, pursuant to the 1st Respondent’s Ruling delivered on 8th August, 2014, furnished the 2nd to 84th Respondents with statements of accounts showing how the benefits paid or payable were arrived at and additionally paid a sum of Kshs.13,668,306 to the said Respondents who were found to have been underpaid.
The Applicants further contend that the Tribunal acted ultra vires when it delivered its Ruling on 13th February 2017 as the 2nd to 84th Respondents never sought for the Orders issued in their application dated 15th September 2015. That the 1st Respondent’s conduct exhibited bias against the Applicants and the 85th Respondents respectively and that the decision that emanated from the impugned ruling was in gross violation of the Retirement Benefits Act and the 2nd Applicant’s Trust Deed and Rules and is therefore null and void ad initio.
The Applicants further averred that the Institute and Faculty of Actuaries based in the United Kingdom in which Robert Oketch, was a member, had ruled that the Actuarial report prepared by the said Robert on behalf of NBC which was relied upon by the 1st Respondent in making the Orders of 13th February, 2017 was against the Trust Deed and Rules of the Applicants and the Institute proceeded to recommend disciplinary measures against the Actuary and the outcome thereof was awaited.
They maintained that since a consent had been recorded, the execution could only have been of the consent which had not been set aside, noting that the application to vary the consent was pending yet the ruling which is impugned tended to vary that consent and that the Tribunal did not even consider the replying affidavit filed by the applicants opposing the amended application.
In the circumstances, the Applicants urged this Court to quash the 1st Respondent’s decision made on 13th February, 2017 and to further direct the 1st Respondent to terminate its proceedings as the Tribunal is functus officio following the Ruling on 8th August, 2014 and the consent order recorded on 8th April, 2016 which have not been set aside to date.
On their part, the 2nd to 84th Respondents contend that the Ruling of the Tribunal delivered on 13th February, 2017 which is the subject of this Judicial Review Application was delivered in open Court and that contrary to the assertion by the Applicants the same was not done in excess of 1st Respondent’s powers.
The 2nd to 84th Respondents maintain that the Applicants are not challenging the Judgment delivered by the Tribunal in this matter but rather its Ruling made on Applications to give effect to the Judgment. They termed the exercise a futility filed in vain. They accuse the applicants of filing the instant application with the intention to delay them from enjoying the fruits of the Ruling entered in their favour.
They aver that the 1st Respondent has jurisdiction to hear and determine disputes by dint of Section 49 of the Retirement Benefits Act and that in doing so, it correctly interpreted the law and followed the Rules of Natural Justice in delivering its Ruling.
The 2nd and 84th Respondents further contend that the Application raises issues and/or grounds that can only be raised on appeal as they touch on the merits of the case, that the instant Application is an Appeal disguised as a Judicial Review Application and is therefore incompetent and fatally defective.
The 2nd to 84th Respondents further contend that the Application is an abuse of judicial process and a waste of judicial time.
The 2nd to 84th Respondents submitted that the 1st Respondent followed due procedure while carrying out its mandate as provided for under Section 48 of the Retirement Benefits Act. It is further submitted that the Applicants have not proved any illegality, irrationality or procedural impropriety hence their arguments are baseless and ought to be dismissed with costs. In this regard, the 2nd to 84th Respondents relied on the Court’s findings in the case of Pastoli Vs Kabale District Local Government Council and Others (2008) 2 EA 300.
On the issue of alleged denial of fair hearing, the 2nd to 84th Respondents submitted that from the record of the proceedings, the Tribunal did conduct itself in a fair manner and that the Ruling was delivered in open court. It was further submitted that no party was ambushed in the proceedings before the 1st respondent and therefore the Applicants’ argument of bias has no basis and as such ought to be dismissed. The 2nd to 84th Respondents relied on the Court of Appeal decision in the case of David Sironga Ole Tukai Vs Francis Arap Muge & 2 Others (2014) eKLR.
The 2nd to 84th Respondents further reiterated that the instant case does not qualify as a matter for Judicial Review as matters of Judicial review only deal with decision making processes and not the merits of the case. The 2nd to 84th Respondents relied on the case of Republic Vs County Government of Mombasa & Another, Ex-parte Clement Muturi Kigani (2018) eKLR.
It was further submitted that the Applicants have not met the threshold for granting of the Orders sought in their application as highlighted in the case of Kenya National Examination Council Vs Republic Ex-parte Geoffrey Gathenji Njoroge & 9 Others (1997) eKLR.
In conclusion, the 2nd to 84th Respondents urged the Court to dismiss the Application dated 7th March, 2017 with Costs to them as it fails to meet the threshold for Judicial review and is only meant to delay the recalculation and proper payment to the 2nd to 84th Respondents herein.
As earlier stated, the 85th Respondent (The Retirement Benefits Authority) submitted that there being no direct claim against it, it did not file any response to the Application. It further submits that it acted in accordance with the provisions of Sections 46 and 48 of the Retirement Benefits Authority Act while carrying out its mandate as provided therein. It further submitted that once RBA carried out its mandate, its engagement in the matter automatically ceased.
Analysis and determination
This Court has considered the applicants’ notice of motion, the statutory statement and affidavit depositions. I have also considered the responses by the respondents and the respective parties’ rival submissions on the matter.
I must acknowledge that I have the advantage of reading both the Court of Appeal and the Judgment which was appealed against by the applicants, following a decision by the ELRC. It would therefore have been very easy for me to simply agree with the learned Judge of ELRC on the merits of the judicial review application since the Court of Appeal only dealt with the jurisdictional question.
However, as the Court of Appeal did not determine the merits of the judgment by Maureen Onyango J, it follows that I must independently decide the merits of this matter. That said, as this court is already aware of what the applicant was aggrieved by in the ELRC merit decision, there is no harm in applying those parameters to guide in determining the merits of this matter which as I stated earlier, has oscillated in court for too long without a merit decision.
I will therefore begin by listing the questions which arose on appeal for determination on the merits thereof which include:
i. Whether the 1st respondent had by its determination of 13th February 2017 rewritten its ruling of 8th August 2014 and thereby sat on its own appeal;
ii. Whether the consent recorded by the parties on 8th April 2016 was overriding the impugned decision of 13th February, 2017;
iii. Whether the 1st respondent acted in excess of its powers provided under the RBA and RB Tribunal Rules, 2008 and subjected the applicant to double jeopardy by delivering two separate and distinct judgments in the appeal;
iv. Whether the 1st respondent issued the respondents with orders before hearing the respondents on merit on their application for review of the consent and further issued the orders which were not sought in the application;
v. Whether the 1st respondent demonstrated bias against the applicant by delivering its ruling with singular notice to the respondents and none to the applicants;
vi. Whether the 1st respondent demonstrated bias in determining that the applicants had not filed a response to the respondents’ application when in fact the applicants’ replying affidavit in response thereto was clearly on record and not taken into account;
vii. Whether the 1st respondent acted without jurisdiction as it was functus officio once the parties had recorded a consent in the matter;
viii. Whether the 1st respondent relied on an Actuary report that was determined to be in contravention of the Applicant’s Trust Deed Rules and therefore invalid.
ix. Whether the judicial review application herein is a disguised appeal as it seeks to challenge the merits of the decision of the 1st respondent;
x. Whether the judicial review orders sought are available to the exparte applicant
xi. What orders should this Court make?
I will determine these questions in no particular order since they can be considered in any order either singularly or combined. Commencing with issue ix, which I find runs through the other questions, is that the 2 nd to 84 th respondents have argued that the applicants have come to this court for judicial review yet it the application challenges the merits of the impugned decision. To this extend, this court must establish the parameters for judicial review within the 2010 constitutional framework and examine the decision which is impugned, whether the application herein challenges the merits or procedural propriety, fairness or legality of the said decision. Determining or resolving this question involves covering most of the questions raised by the applicants before the Court of Appeal on the merits of the application herein.
The scope and parameters of judicial review jurisdiction has been addressed in various decisions. The broad grounds for the exercise of judicial review jurisdiction were stated in the often-cited Ugandan case of Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 at pages 303 to 304 thus:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW APPLICATION NO. E118 OF 2025
(Formerly High Court Judicial Review No. 85 of 2017) and subsequently Formerly Nairobi ELRC No. 37 of 2018
IN THE MATTER OF THE RETIREMENT BENEFITS ACT, 1997
AND
IN THE MATTER OF THE RETIREMENT BENEFITS (TRIBUNAL) RULES 2010
AND
IN THE MATTER OF THE CIVIL PROCEDURE ACT
AND
IN THE MATTER OF THE CIVIL PROCEDURE RULES 2010
AND
IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF THE RETIREMENT BENEFITS APPEALS TRIBUNAL
AND
IN THE MATTER OF TRIBUNAL APPEAL NO. 8 OF 2010
ELIAS MAINA MURUGI AND 133 OTHERS.......................APPELLANTS
VERSUS
RETIREMENT BENEFITS AUTHORITY...................1ST RESPONDENT
NATIONAL BANK OF KENYA STAFF
RETIREMENT BENEFITS SCHEME..........................2ND RESPONDENT
NATIONAL BANK OF KENYA STAFF PENSION
FUND REGISTERED TRUSTEES................................3RD RESPONDENT
BETWEEN
NATIONAL BANK OF KENYA
STAFF RETIREMENT BENEFITS SCHEME.................1ST APPLICANT
NATIONAL BANK OF KENYA
STAFF PENSION FUND REGISTERED TRUSTEES....2ND APPLICANT
VERSUS
RETIREMENT BENEFITS APPEAL TRIBUNAL......1ST RESPONDENT
ELIAS MAINA MURIGI AND
133 OTHERS………………………………….2ND – 84TH RESPONDENTS
RETIREMENT BENEFITS AUTHORITY.................85TH RESPONDENT
JUDGMENT
This matter has been litigated and relitigated upon. Since it was filed in this Court in February, 2017, certified as urgent, heard exparte on the application for leave to apply and leave to operate as stray on 1st March 2017 by none other than myself when I was serving my first term in this Judicial Review Division, it has moved from this Court, between different Judges, all of whom have since been elevated to the Court of Appeal, transferred to the employment and Labour Relations Court by consent, on account of jurisdiction, heard on jurisdiction and merit, the judgment of ELRC by Maureen Onyango J appealed to the Court of Appeal and the file returned to the Employment and Labour Relations Court with an order from the Court of Appeal that the file be returned to its origin, which is this High Court for hearing and determination on merit.
The main reason for the matter circulating from this Court to the ELRC and back has been the mystery surrounding jurisdiction to hear and determine the dispute involving members of the Retirement Benefits Scheme and the Scheme Administrators and Sponsors.
It is gratifying to know that the Court of Appeal finally settled that issue of jurisdiction. However, the merits of the dispute remains untouched to date, although in the Employment and Labour Relations Court, the learned judge, Maureen Onyango J did make a merit determination which was nonetheless challenged on account of jurisdiction as well as the merits of the decision, but the Court of appeal upon finding that the ELRC had no jurisdiction to hear and determine the dispute, did not make any merit determination of the appeal and returned the matter to the High Court, the Court of origin, to consider the merits thereof.
On the part of this Court, as soon as the file was availed, the hearing has been fast-tracked and here is the determination, in less than four months, according with dictates of Articles 47 and 159 of the Constitution that justice shall not be delayed.
When returning the file to this Court, the Court of Appeal stated as follows:
“We have carefully read the entire record particularly the pleadings. The dispute between the parties does to arise from an employer/employee relationship. In fact, as at the time the dispute arose, the 2nd to 84th respondents had ceased to be employees of the bank. The dispute involved computation of their benefits under the pension scheme. The issues raised in this case were settled with finality by the Supreme Court in Albert Chaurembo Mumba & 7 Others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the in the Registered Trustees of Kenya Ports Authority Pensions Scheme) vs. Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and Other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, (P.M. Mwilu D.C.J & V-P, Ojwang, Wanjala, Njoki & Lenaola SCJJ) where it held:-
“[146] In our view, once a member leaves the employment of a Sponsor, by becoming a pensioner, there is no longer a relationship of employer-employee that exists between such a pensioner and the sponsor. The relationship that exists in that case becomes that of trustee and beneficiaries (members) of a trust and that relationship is governed by the Retirement Benefits Act, Trustee Act Cap 167 of the laws of Kenya and the general common law on the law of trusts. It is important to note that nowhere in the Employment and Labour Relations Court Act is there jurisdiction conferred on the Employment and Labour Relations court to resolve issues between trustees of a pension scheme and members of the scheme (pensioners).”
The above being the correct interpretation of the law, we are clear in our minds that the ELRC had no jurisdiction to entertain the dispute relating to computation and payment of the 2nd to 84th respondents’ claim relating to computation and payment of their pension benefits under their pension scheme.
Therefore, the High Court improperly transferred Judicial Review Application No. 85 of 2018 to the ELRC for hearing and determination. It is settled law that jurisdiction cannot be conferred by consent of judicial craft. This position was appreciated by the Supreme Court in Isaac Aluoch Polo Aluochier vs. Independent Electoral and Boundaries Commission & Others & 19 Others [2013] eKLR as follows:
“A court cannot expand its jurisdiction through judicial craft or innovation. See S.K. Macharia and Another v. Kenya Commercial Bank Ltd. & 2 Others, Sup. Ct. Civil Application No. 2 of 2011; [2012] eKLR. Nor can a party confer on a court power it does not have. Similarly, parties cannot by mutual consent confer jurisdiction when there is none.”
In the premises, we allow this appeal, set aside the judgement of Onyango, J. dated 31st January, 2020 issued in Judicial Review Application No. 37 of 2018 in its entirety. Considering that the matter was not heard on merits and that the parties by consent requested the Court to transfer the case to the ELRC, it is our view that it would be unfair for this Court to allow the respondents to bear the consequence of the transfer, yet it was by consent. Accordingly, we order that the appellants’ Judicial Review proceedings be remitted to the High Court, Judicial Review Division, for hearing and determination on merits pursuant to Rule 33 of this Court’s Rules. Costs shall abide by the outcome of the Judicial Review Application.”
Therefore, although the case number for this matter appears to be a 2025, this case has been in various courts for now over eight years. I trust that with the anticipated merit determination, this Court will find favour in wisdom and be relieved of the oscillation so that the decision that it will render will be acceptable by both parties to the dispute and even if either one of them shall be aggrieved, they will have the opportunity to challenge the merits thereof to the higher court.
The facts of this case have been rehashed by both the ELRC and the Court of Appeal and therefore I will not reinvent the wheel. I will reproduce those facts and circumstances giving rise to the dispute as summarized by the two courts and move on to determine the main issues.
As restated by the Court of Appeal, the facts which elicited the litigation before this Court are fairly straightforward. Substantially, those facts are not contested. The 2nd to 84th respondents are former employees of the National Bank of Kenya (the Bank). By virtue of their employment, they were members of the National Bank of Kenya Staff Retirement Benefits Scheme (the Scheme). In that capacity, the 2 nd to 84 th respondents were entitled to their pension benefits as provided in the Trust Deed and Rules of the Scheme.
Upon ceasing being employees of the Bank, majority of them by way of redundancy, they were paid their benefits as per the redundancy/retirement letters filed into court. However, they discovered that they had been underpaid and so, they protested that their pension benefits were not calculated in accordance with the Scheme Rules and so, they filed a complaint before the Retirement Benefits Authority (the Authority- 85th respondent) in accordance with Section 46 of the Retirement Benefits Act. their complaint was dismissed.
Aggrieved by the dismissal of their complaint, they invoked Section 48 of the Retirement Benefits Act and appealed to the Retirement Benefits Appeals Tribunal (the 1st respondent herein-the Tribunal) in Tribunal Appeal No. 8 of 2010, seeking to set aside the said decision of the Authority and an order that the calculations prepared by their Actuary be upheld. By a decision dated 23rd February, 2012, the Tribunal allowed their appeal as follows:
(a) The Appeal be and is hereby allowed;
(b) The 2nd respondent does within thirty (30) days from today calculate and give to each of the appellants and/or beneficiaries a statement of account showing in detail how the benefits due are arrived at;
(c) If the full benefit is found not to have been paid by the 2nd respondent to any appellant or beneficiary the same be paid within thirty (30) days from today in accordance with the Scheme Rules of the 2nd respondent;
(d) In default of the 2nd respondent undertaking the activities stated in (b) and (c) above or any one of them within thirty (30) days from the date hereof, the 1st respondent do appoint an Interim Administrator to undertake the assignment at the cost of the 2nd respondent;
(e) There shall be liberty on either party to apply.
Following several execution applications, the applicants paid some amounts to the 2nd to 84th respondents and this is acknowledged in the proceedings of the Tribunal that indeed, there was no evidence that the recalculated sums had been settled in full. However, the 2nd to 84th respondents maintained that the said payments were not in tandem with the judgment which was in their favour. They therefore applied to the 85th respondent to appoint an Actuary to compute the amounts. Their application was allowed and a report of the Actuary was adopted vide a ruling delivered on 8th August, 2014 as follows:
(a) The actuarial report be and is hereby adopted as it is in accordance with the orders issued by the Tribunal on 25th June 2012;
(b) Subject to compliance with the Income Tax Act and/or any other statutory requirements and the variations in the Actuarial as set out below, the 2nd respondent is hereby directed to settle the appellants’ individual claim in the manner set out in appendix 1 and appendix 2 and 5 at pages 21 to 34 inclusive of the Actuarial Report. The variations are: -
1.Benefits Payable under the Rules, dated 4th January 1990-
(i) Voluntary Early Retirement – a commutation of a lump sum not exceeding Kshs.540,000.00 and the remainder be paid as a pension in periodical instalments in accordance with Rule 49 of the Rules less what has so far been paid if any:
(ii) Normal Retirement – a commutation of a lump sum not exceeding Kshs.540,000.00 and the remainder be paid as a pension in periodical instalments in accordance with Rule 49 of the Rules less what has so far been paid if any:
(iii) Medical Retirement – a sum calculated in accordance with Rules 12 and 13 less what has so far been paid, if any;
(iv) Death – a sum calculated in accordance with Rule 15 less what has so far been paid, if any;
(v) Other Terminations (Including Redundancies, Terminations, Resignations and Dismissals on or after 4th January, 1990 - a sum calculated in accordance with Rule 16 less what has so far been paid, if any;
(c)The 2nd respondent within thirty (30) days from the date hereof to furnish each of the appellants with a statement of account showing how the benefits paid or payable were calculated and arrived at:
(d) Paragraphs 14, 15.4, 16.3, 19, 22, 36, 39 and 56 of the Actuarial deleted from the records of the Tribunal;
(e) Each party shall bear its own costs.
10. By an application dated 2nd December, 2014 and amended on 17th September, 2015, the 2nd to 84th respondents applied to the 1st respondent for a decree in the sum of Kshs.136,095,357.00 and warrants of execution. By a ruling delivered on 13th February, 2017 , the 1st respondent directed the appellants to pay the 2nd to 84th respondents their unpaid pension in accordance with the Actuarial Valuation of NBC valuers.
Dissatisfied by the said ruling, the appellants filed Judicial Review Application No. 85 of 2017, the subject of these proceedings. Leave to apply was granted on 1 st March, 2017 and the leave so granted operated as stay of enforcement of the ruling. The 2nd to 84th respondents then filed an application challenging jurisdiction of this Court and seeking that the matter be transferred to the Employment and Labour Relations Court for hearing and final determination. That application was settled by consent, with all parties conceding to have the matter transferred to the Employment and Labour Relations Court (ELRC).
It is at the ELRC that the matter was heard on merit and dismissed by Maureen Onyango J but not without similar objections to jurisdiction being raised on appeal to the Court of Appeal which albeit it considered the matter as a whole, including the submissions on the merits of the appeal, it nonetheless singled out the issue of jurisdiction raised by the applicant herein and upon finding that the ELRC did not have jurisdiction in the matter which was not an employment and labour relations dispute, it directed that the file be returned to this Court for consideration of the merits of the judicial review application.
This is where we are, after parties reappeared before me and the court gave directions. There were off course initial challenges owing to the fact that the matter had been handled manually and now the parties were required to file the documents via the Court Case Tracking System yet they could not trace some of their pleadings and documents for uploading.
In their judicial review application, the applicants seek the following orders:
a) An Order of Certiorari to remove to quash the decision made by the Retirement Benefits Appeals Tribunal at Nairobi Civil Appeal No. 8 of 2010, Elias Maina Murigi & 133 Others vs Retirement Benefits Authority, National Bank of Kenya Staff Retirement Benefits Scheme and National Bank of Kenya Staff Pension Fund Registered Trustees to wit:
i. The 2nd respondent shall pay individually to each of the 83 appellants the sum in the first column set out against their respective names;
ii. The sum payable to each of the appellants in
(i) above be reduced by any sum paid after 8th August, 2014 if any;
iii. The 2nd respondent does collect all the tax, if any due on such payment;
iv. The 2nd respondent pays interest on the outstanding balance to each appellant at the rate earned by the scheme in each financial year until payment in full.
v. The appellants shall have costs of this application abide by the outcome of the judicial review case assessed at Kshs.10,000.00 payable by the respondent.
b) An order of mandamus directing the Retirement Benefits Appeals Tribunal to terminate further proceedings in Retirement Benefits Appeals Tribunal at Nairobi Civil Appeal Number 8 of 2010, Elias Maina Murigi & 133 Others vs Retirement Benefits Authority, National Bank of Kenya Staff Benefits Scheme and National Bank of Kenya Staff Pension Fund Registered Trustees.
c) That the costs of the suit be awarded to the ex- parte applicants.
The Judicial Review Application is supported by a statutory statement and a verifying affidavit both dated 27th February, 2017 and a supplementary affidavit sworn on 26th April, 2017 by Habil Waswani, the Company Secretary of National Bank, the applicants’ sponsor.
The 2nd to 84th respondents opposed the applicants’ judicial review application through a replying affidavit sworn on their behalf by Jack Leonard Gwalla, the 16th respondent on 5th April, 2019. They maintained that the ruling delivered on 13th February, 2017 was not done in excess of 1st respondent’s powers, that the applicants were not challenging the judgment delivered by the Tribunal, but rather its ruling made on applications to give effect to the judgment. They termed the exercise as futile and accused the applicants of filing the application to delay them from enjoying the fruits of the ruling delivered in their favour, being senior citizens now whose rights are guaranteed under Article 59 of the Constitution.
The 2nd to 84th respondents maintain that the 1st respondent had jurisdiction to hear and determine disputes by dint of Section 49 of the Retirement Benefits Act and that in doing so, it correctly interpreted the law and followed the Rules of natural justice in carrying out its mandate under the said section. They contend that the issues raised by the applicants related to merits of the case, therefore, this application is an appeal disguised as a Judicial Review Application, thus, the application is incompetent and fatally defective.
The 85th respondent stated that there being no direct claim against it, it did not file any response to the application. It maintains that it acted in accordance with Sections 46 and 48 of the Retirement Benefits Act and that its mandate in the matter automatically ceased.
Parties also filed written submissions canvassing the application. Those submissions were aptly captured by Maureen Onyango J in her judgment and I shall therefore reproduce them here with the parties’ counsel reiterating the depositions.
Submissions
The Applicants contend that the Retirement Benefits Appeals Tribunal acted in excess of its power by delivering its Ruling on 13th February, 2017 without any prior notice to the parties save for the 2nd to 84th Respondents herein and that they had, pursuant to the 1st Respondent’s Ruling delivered on 8th August, 2014, furnished the 2nd to 84th Respondents with statements of accounts showing how the benefits paid or payable were arrived at and additionally paid a sum of Kshs.13,668,306 to the said Respondents who were found to have been underpaid.
The Applicants further contend that the Tribunal acted ultra vires when it delivered its Ruling on 13th February 2017 as the 2nd to 84th Respondents never sought for the Orders issued in their application dated 15th September 2015. That the 1st Respondent’s conduct exhibited bias against the Applicants and the 85th Respondents respectively and that the decision that emanated from the impugned ruling was in gross violation of the Retirement Benefits Act and the 2nd Applicant’s Trust Deed and Rules and is therefore null and void ad initio.
The Applicants further averred that the Institute and Faculty of Actuaries based in the United Kingdom in which Robert Oketch, was a member, had ruled that the Actuarial report prepared by the said Robert on behalf of NBC which was relied upon by the 1st Respondent in making the Orders of 13th February, 2017 was against the Trust Deed and Rules of the Applicants and the Institute proceeded to recommend disciplinary measures against the Actuary and the outcome thereof was awaited.
They maintained that since a consent had been recorded, the execution could only have been of the consent which had not been set aside, noting that the application to vary the consent was pending yet the ruling which is impugned tended to vary that consent and that the Tribunal did not even consider the replying affidavit filed by the applicants opposing the amended application.
In the circumstances, the Applicants urged this Court to quash the 1st Respondent’s decision made on 13th February, 2017 and to further direct the 1st Respondent to terminate its proceedings as the Tribunal is functus officio following the Ruling on 8th August, 2014 and the consent order recorded on 8th April, 2016 which have not been set aside to date.
On their part, the 2nd to 84th Respondents contend that the Ruling of the Tribunal delivered on 13th February, 2017 which is the subject of this Judicial Review Application was delivered in open Court and that contrary to the assertion by the Applicants the same was not done in excess of 1st Respondent’s powers.
The 2nd to 84th Respondents maintain that the Applicants are not challenging the Judgment delivered by the Tribunal in this matter but rather its Ruling made on Applications to give effect to the Judgment. They termed the exercise a futility filed in vain. They accuse the applicants of filing the instant application with the intention to delay them from enjoying the fruits of the Ruling entered in their favour.
They aver that the 1st Respondent has jurisdiction to hear and determine disputes by dint of Section 49 of the Retirement Benefits Act and that in doing so, it correctly interpreted the law and followed the Rules of Natural Justice in delivering its Ruling.
The 2nd and 84th Respondents further contend that the Application raises issues and/or grounds that can only be raised on appeal as they touch on the merits of the case, that the instant Application is an Appeal disguised as a Judicial Review Application and is therefore incompetent and fatally defective.
The 2nd to 84th Respondents further contend that the Application is an abuse of judicial process and a waste of judicial time.
The 2nd to 84th Respondents submitted that the 1st Respondent followed due procedure while carrying out its mandate as provided for under Section 48 of the Retirement Benefits Act. It is further submitted that the Applicants have not proved any illegality, irrationality or procedural impropriety hence their arguments are baseless and ought to be dismissed with costs. In this regard, the 2nd to 84th Respondents relied on the Court’s findings in the case of Pastoli Vs Kabale District Local Government Council and Others (2008) 2 EA 300.
On the issue of alleged denial of fair hearing, the 2nd to 84th Respondents submitted that from the record of the proceedings, the Tribunal did conduct itself in a fair manner and that the Ruling was delivered in open court. It was further submitted that no party was ambushed in the proceedings before the 1st respondent and therefore the Applicants’ argument of bias has no basis and as such ought to be dismissed. The 2nd to 84th Respondents relied on the Court of Appeal decision in the case of David Sironga Ole Tukai Vs Francis Arap Muge & 2 Others (2014) eKLR.
The 2nd to 84th Respondents further reiterated that the instant case does not qualify as a matter for Judicial Review as matters of Judicial review only deal with decision making processes and not the merits of the case. The 2nd to 84th Respondents relied on the case of Republic Vs County Government of Mombasa & Another, Ex-parte Clement Muturi Kigani (2018) eKLR.
It was further submitted that the Applicants have not met the threshold for granting of the Orders sought in their application as highlighted in the case of Kenya National Examination Council Vs Republic Ex-parte Geoffrey Gathenji Njoroge & 9 Others (1997) eKLR.
In conclusion, the 2nd to 84th Respondents urged the Court to dismiss the Application dated 7th March, 2017 with Costs to them as it fails to meet the threshold for Judicial review and is only meant to delay the recalculation and proper payment to the 2nd to 84th Respondents herein.
As earlier stated, the 85th Respondent (The Retirement Benefits Authority) submitted that there being no direct claim against it, it did not file any response to the Application. It further submits that it acted in accordance with the provisions of Sections 46 and 48 of the Retirement Benefits Authority Act while carrying out its mandate as provided therein. It further submitted that once RBA carried out its mandate, its engagement in the matter automatically ceased.
Analysis and determination
This Court has considered the applicants’ notice of motion, the statutory statement and affidavit depositions. I have also considered the responses by the respondents and the respective parties’ rival submissions on the matter.
I must acknowledge that I have the advantage of reading both the Court of Appeal and the Judgment which was appealed against by the applicants, following a decision by the ELRC. It would therefore have been very easy for me to simply agree with the learned Judge of ELRC on the merits of the judicial review application since the Court of Appeal only dealt with the jurisdictional question.
However, as the Court of Appeal did not determine the merits of the judgment by Maureen Onyango J, it follows that I must independently decide the merits of this matter. That said, as this court is already aware of what the applicant was aggrieved by in the ELRC merit decision, there is no harm in applying those parameters to guide in determining the merits of this matter which as I stated earlier, has oscillated in court for too long without a merit decision.
I will therefore begin by listing the questions which arose on appeal for determination on the merits thereof which include:
i. Whether the 1st respondent had by its determination of 13th February 2017 rewritten its ruling of 8th August 2014 and thereby sat on its own appeal;
ii. Whether the consent recorded by the parties on 8th April 2016 was overriding the impugned decision of 13th February, 2017;
iii. Whether the 1st respondent acted in excess of its powers provided under the RBA and RB Tribunal Rules, 2008 and subjected the applicant to double jeopardy by delivering two separate and distinct judgments in the appeal;
iv. Whether the 1st respondent issued the respondents with orders before hearing the respondents on merit on their application for review of the consent and further issued the orders which were not sought in the application;
v. Whether the 1st respondent demonstrated bias against the applicant by delivering its ruling with singular notice to the respondents and none to the applicants;
vi. Whether the 1st respondent demonstrated bias in determining that the applicants had not filed a response to the respondents’ application when in fact the applicants’ replying affidavit in response thereto was clearly on record and not taken into account;
vii. Whether the 1st respondent acted without jurisdiction as it was functus officio once the parties had recorded a consent in the matter;
viii. Whether the 1st respondent relied on an Actuary report that was determined to be in contravention of the Applicant’s Trust Deed Rules and therefore invalid.
ix. Whether the judicial review application herein is a disguised appeal as it seeks to challenge the merits of the decision of the 1st respondent;
x. Whether the judicial review orders sought are available to the exparte applicant
xi. What orders should this Court make?
I will determine these questions in no particular order since they can be considered in any order either singularly or combined. Commencing with issue ix, which I find runs through the other questions, is that the 2 nd to 84 th respondents have argued that the applicants have come to this court for judicial review yet it the application challenges the merits of the impugned decision. To this extend, this court must establish the parameters for judicial review within the 2010 constitutional framework and examine the decision which is impugned, whether the application herein challenges the merits or procedural propriety, fairness or legality of the said decision. Determining or resolving this question involves covering most of the questions raised by the applicants before the Court of Appeal on the merits of the application herein.
The scope and parameters of judicial review jurisdiction has been addressed in various decisions. The broad grounds for the exercise of judicial review jurisdiction were stated in the often-cited Ugandan case of Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 at pages 303 to 304 thus:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a
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