(Being an Appeal from the Judgment of Hon. Kagoni E.M. (PM) delivered on 22 nd November 2022 at Milimani MCCC No. 8057 of 2019)
Introduction
1. This appeal arises from the judgment of the Magistrates’ Court at Milimani Commercial Court ( Kagoni, E.M., PM ) delivered on 22 nd November 2022 in MCCC No. 8057 of 2019.
2. James Muthama Munyili, the respondent, was a member of the National Social Security Fund (NSSF) from 1 st January 1976 to 31 st March 2016. According to his statement issued on 11 th July 2017, the respondent’s total contribution was Kshs. 449,400.41/-. NSSF paid him Kshs. 276,805/- on 15 th September 2017 and 27 th May 2019, leaving a balance of Kshs. 172,595.41/-. Despite numerous demands, NSSF failed to pay the balance and/or give a reason thereto.
Factual History
3. In the face of the foregoing, the respondent filed a plaint dated 4 th November 2019 claiming that the NSSF Board of Trustees (the appellant) was in breach of their contract. He claimed the balance of Kshs. 172,595.41/-, costs and interest.
4. The appellant filed its defence dated 17 th January 2020 denying the claim. It averred that it had paid the respondent a total of Kshs. 335,586.80/-, made up as follows: Kshs. 262,390/- in September 2017; Kshs. 57,214.80/- paid in 1995 as an invalidity benefit claim; Kshs. 1,567/- paid as an underpayment in December 2017; and Kshs. 14,415/- interest arrears for the Financial Year 2016/2017 paid in May 2019. It further averred that upon converting its system to its new ICT system, the sum of Kshs, 449,400.41/- was erroneously captured disregarding the invalidity benefit claim of Kshs. 57,214.80/- paid manually in 1995. In its view, there were no sums owing to the respondent.
5. Parties attempted an out-of-court settlement. While it was not successful, on 16 th March 2021, the respondent informed the Trial Court that upon reconciliation, he admitted a payment of Kshs. 58,781.98/- leaving a balance of Kshs. 113,814.23/-.
6. Despite taking a hearing date by consent, the matter proceeded ex-parte . PW1, James Muthama Munyili , adopted the plaint and witness statement as his evidence in chief. He then prayed for judgment as sought in the plaint.
7. By a Judgment delivered on 22 nd November 2022, the Trial Court ( Kagoni, E.M., PM ) allowed the plaint as sought, noting that the respondent’s claim was uncontroverted. It is important to point out that the sum awarded as arrears was Kshs. 172, 595.41/- despite the respondent’s previous admission that the balance was Kshs. 113,814.23/-.
8. Dissatisfied with the Judgment and upon being served with a warrant of attachment dated 23 rd March 2023, the appellant filed an application dated 3 rd April 2023 seeking orders setting aside the said warrant, review of the Judgment dated 22 nd November 2022 and quashing the proceedings of 1 st September 2022 and reopening the case for interpartes trial.
9. By a Ruling delivered on 16 th August 2024, the court ( B.M. Cheloti, PM ) dismissed the application. The court affirmed the regularity of the Judgment of 22 nd November 2022, noting that the hearing date was taken by consent and the appellant failed to appear. In addition, the court observed that the appellant did not give any reasons as to why it could not appear for the hearing. Furthermore, the court held that reopening the case would prejudice the respondent who had since passed away on or around 22 nd June 2023.
The Appeal
10. Aggrieved, the appellant applied and obtained leave vide this Court’s order dated 24 th February 2025 granting the appellant leave to appeal out of time, amongst other orders.
11. Consequently, the appellant filed a Memorandum of Appeal dated 19 th September 2024 raising 3 grounds of appeal. The appellant challenged that the learned trial Magistrate erred:
i. In law and fact by assuming jurisdiction in a matter which the Trial Court did not have jurisdiction.
ii. In law and fact by failing to hold that the subject matter of the suit before the Trial Court falls within the jurisdiction of Retirement Benefits Appeal pursuant to Section 53 of the National Social Security Fund.
iii. In law and fact by failing to take judicial notice that it had no jurisdiction in the matter.
12. Consequently, the appellant urged this Court to allow the appeal, set aside the Judgment of the lower court for want of jurisdiction and costs of the appeal and suit before the Trial Court.
The Appellant’s Submissions
13. In its submissions dated 12 th March 2026, the appellant acknowledged that the question of jurisdiction was not raised before the Trial Court, but nonetheless urged that the Trial Court lacked jurisdiction to determine the dispute. It relied on the cases of Southern Star SACCO Ltd. Vs Vanacio Ntwiga [2021] eKLR and National Social Security Fund Board of Trustees Vs Kenya Tea Growers Association & 14 Others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) for the submission that a question on jurisdiction may be raised for the first time even on appeal.
14. In its view, the dispute related to contributions and benefits under the National Social Security Fund Act and is hence subject to the resolution mechanism under Section 53 of the NSSF Act before approaching the courts as was held in the case of Mumba & 7 Others (Sued on their own behalf and on behalf of predecessors and/or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) Vs 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] KESC 83 (KLR).
15. The correct forum, in their view, was the Retirement Benefits Appeal Tribunal under Section 53 of the NSSF Act. Having failed to file their case before the appropriate statutory-dictated forum, it was postulated that the suit before the trial court ran afoul the principle of exhaustion, as more elaborately clarified in Mumba Case and William Odhiambo Ramogi & 3 Others Vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (2020) eKLR. It was further argued that just like the High Court in Republic Vs Retirement Benefits Authority Ex parte Alex Anyona Momanyi & 6 Others [2022] KEHC 26926 (KLR), the trial court ought to have declined adjudicating over the dispute.
The Respondent’s Submissions
16. In opposition to the appeal, the respondent, through his legal representatives, filed submissions dated 22 nd May 2026. At the outset, he pointed out that the record of appeal was incomplete since the appellant failed to attach an unsuccessful application dated 3 rd April 2023 filed before the trial court seeking review of the trial court’s decision and the Ruling thereto delivered on 16 th August 2024. Accordingly, he argued that the appeal is improperly before this Court as a party cannot apply for review and lodge an appeal against the same decision. In any case, he submitted that the appeal ought to have been preferred against the Ruling of 16 th August 2024 and not the Judgment.
17. On the issue of jurisdiction, the respondent argued that the appellant could not challenge the trial court’s jurisdiction at the appellate stage having failed to raise the same before the trial court. Furthermore, he argued that the dispute did not fall within the province of Section 53 of the NSSF Act. According to him, the issue revolved around the payment of his contributions and was, as such, a claim for Kshs. 172,595.41/-, being money owed and not paid. Relying on Montex Knitwear Ltd. vs Gopitex Knitwear Mills Ltd. Nairobi (Milimani) HCCC No. 834 of 2002, it was asserted that, having failed to call witnesses, the respondent’s case stood unchallenged and the appellant’s case unsubstantiated.
18. In addition, he submitted that, in his view, the appellant’s contention that the Retirement Benefits Appeal Tribunal had jurisdiction was raised as an afterthought after failing to convince the trial court to set aside the interlocutory judgment. Accordingly, he urged this Court to dismiss the appeal.
ANALYSIS AND DETERMINATION
19. This being a first appeal, this court’s duty is to analyze and re-assess the evidence on record and reach its own conclusions in the matter, as set out succinctly in Selle v. Associated Motor Boat Co. [1968] EA 123 .
20. I have carefully considered the appeal, rival submissions, statutory and jurisprudential framework. I find that the appeal turns on two issues: whether the appeal is competently before the Court; and if so, whether the trial court had jurisdiction to determine the dispute .
21. The law on jurisdiction is settled. Jurisdiction flows from the Constitution or legislation, and a court cannot arrogate to itself jurisdiction beyond that conferred by law. Where a court finds that it lacks jurisdiction, it must down its tools. See The Owners of the Motor Vessel Lilian ‘S’ vs Caltex Kenya Ltd. (1989) KLR 1 and Macharia & Another vs Kenya Commercial Bank Ltd. & 2 Others (Application 2 of 2011) [2012] KESC 8 (KLR).
22. Of particular concern to this matter is when a contest on jurisdiction can be raised. This is also well settled: a question of jurisdiction may be raised at any time, even on appeal for the first time. The general rule that a party cannot raise a new issue for the first time on appeal does not apply when the issue is jurisdiction. See Kenya Ports Authority vs Modern Holdings (E.A.) Ltd. [2017] KECA 293 (KLR) and Dubai Bank Kenya Ltd. vs Kwanza Estates Ltd. [2015] KECA 729 (KLR).
23. The respondent, however, contends that the appeal is incompetent because the appellant first sought review of the Judgment dated 22 nd November 2022 and, having failed in that endeavour, could not subsequently appeal against the same Judgment. The position is that a party who elects review cannot, upon dismissal of the review application, pursue an appeal against the very decision sought to be reviewed. An appeal may instead lie against the decision determining the review application. See Gerald Kituu Muchanje v Catherine Muthoni Ngare & another [2020] KECA 511 (KLR)
24. However, jurisdiction is a fundamental issue that goes to the competence of the very proceedings. Since the appeal expressly challenges the trial court’s jurisdiction, this Court must determine whether that jurisdictional challenge can properly be entertained.
25. The appellant contended that the subject-matter of the dispute was within the province of the Retirement Benefits Appeals Tribunal while the respondent argued that the dispute was for a claim of money owed and unpaid. Looking at the material before this Court, the respondent claimed that he made contributions to the NSSF which were not remitted to him when he applied for the same.
26. The statutory regime in play in this case is the National Social Security Fund Act, NSSF Act. The preamble reads that the Act establishes the NSSF to provide for contributions to, and payment of benefits out of the Fund and for connected matters. The respondent's claim was not a simple debt claim. He pleaded that he had contributed to the NSSF Fund and sought payment of benefits allegedly due to him under the NSSF scheme. The claim therefore arose directly from the statutory relationship created by the NSSF Act. The demand letters and documents on record confirm that the payment sought was the respondent's NSSF benefit. I therefore reject the contention that the dispute was merely one for recovery of money owed
27. Section 53 of the NSSF Act provides that any dispute relating to, inter alia, contributions and benefits arising from the application of the Act shall be referred to the Tribunal established under the Retirement Benefits Act. That Tribunal is the Retirement Benefits Appeals Tribunal established under Section 47 of the RBA. The statutory scheme therefore places such disputes within a specialized dispute-resolution mechanism. See Mumba & 7 Others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) vs 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)) (Petition 3 of 2016) [2019] KESC 83 (KLR) and George Omondi & 210 Others vs Retirement Benefits Appeals Tribunal & 2 Others [2020] KECA 666 (KLR).
28. In the circumstances, I find that the respondent's claim was a dispute relating to benefits arising under the NSSF Act and was therefore subject to the dispute-resolution mechanism prescribed by Section 53 thereof. The trial court consequently lacked jurisdiction to entertain the suit.
29. Accordingly, the appeal succeeds. I hereby set aside the trial court’s Judgment in toto . In view of the appellant’s conduct before the trial court, I see no reason to burden the respondent with costs. Accordingly, parties shall bear their own costs.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 17 th day of September 2026.
Introduction
1. This appeal arises from the judgment of the Magistrates’ Court at Milimani Commercial Court ( Kagoni, E.M., PM ) delivered on 22 nd November 2022 in MCCC No. 8057 of 2019.
2. James Muthama Munyili, the respondent, was a member of the National Social Security Fund (NSSF) from 1 st January 1976 to 31 st March 2016. According to his statement issued on 11 th July 2017, the respondent’s total contribution was Kshs. 449,400.41/-. NSSF paid him Kshs. 276,805/- on 15 th September 2017 and 27 th May 2019, leaving a balance of Kshs. 172,595.41/-. Despite numerous demands, NSSF failed to pay the balance and/or give a reason thereto.
Factual History
3. In the face of the foregoing, the respondent filed a plaint dated 4 th November 2019 claiming that the NSSF Board of Trustees (the appellant) was in breach of their contract. He claimed the balance of Kshs. 172,595.41/-, costs and interest.
4. The appellant filed its defence dated 17 th January 2020 denying the claim. It averred that it had paid the respondent a total of Kshs. 335,586.80/-, made up as follows: Kshs. 262,390/- in September 2017; Kshs. 57,214.80/- paid in 1995 as an invalidity benefit claim; Kshs. 1,567/- paid as an underpayment in December 2017; and Kshs. 14,415/- interest arrears for the Financial Year 2016/2017 paid in May 2019. It further averred that upon converting its system to its new ICT system, the sum of Kshs, 449,400.41/- was erroneously captured disregarding the invalidity benefit claim of Kshs. 57,214.80/- paid manually in 1995. In its view, there were no sums owing to the respondent.
5. Parties attempted an out-of-court settlement. While it was not successful, on 16 th March 2021, the respondent informed the Trial Court that upon reconciliation, he admitted a payment of Kshs. 58,781.98/- leaving a balance of Kshs. 113,814.23/-.
6. Despite taking a hearing date by consent, the matter proceeded ex-parte . PW1, James Muthama Munyili , adopted the plaint and witness statement as his evidence in chief. He then prayed for judgment as sought in the plaint.
7. By a Judgment delivered on 22 nd November 2022, the Trial Court ( Kagoni, E.M., PM ) allowed the plaint as sought, noting that the respondent’s claim was uncontroverted. It is important to point out that the sum awarded as arrears was Kshs. 172, 595.41/- despite the respondent’s previous admission that the balance was Kshs. 113,814.23/-.
8. Dissatisfied with the Judgment and upon being served with a warrant of attachment dated 23 rd March 2023, the appellant filed an application dated 3 rd April 2023 seeking orders setting aside the said warrant, review of the Judgment dated 22 nd November 2022 and quashing the proceedings of 1 st September 2022 and reopening the case for interpartes trial.
9. By a Ruling delivered on 16 th August 2024, the court ( B.M. Cheloti, PM ) dismissed the application. The court affirmed the regularity of the Judgment of 22 nd November 2022, noting that the hearing date was taken by consent and the appellant failed to appear. In addition, the court observed that the appellant did not give any reasons as to why it could not appear for the hearing. Furthermore, the court held that reopening the case would prejudice the respondent who had since passed away on or around 22 nd June 2023.
The Appeal
10. Aggrieved, the appellant applied and obtained leave vide this Court’s order dated 24 th February 2025 granting the appellant leave to appeal out of time, amongst other orders.
11. Consequently, the appellant filed a Memorandum of Appeal dated 19 th September 2024 raising 3 grounds of appeal. The appellant challenged that the learned trial Magistrate erred:
i. In law and fact by assuming jurisdiction in a matter which the Trial Court did not have jurisdiction.
ii. In law and fact by failing to hold that the subject matter of the suit before the Trial Court falls within the jurisdiction of Retirement Benefits Appeal pursuant to Section 53 of the National Social Security Fund.
iii. In law and fact by failing to take judicial notice that it had no jurisdiction in the matter.
12. Consequently, the appellant urged this Court to allow the appeal, set aside the Judgment of the lower court for want of jurisdiction and costs of the appeal and suit before the Trial Court.
The Appellant’s Submissions
13. In its submissions dated 12 th March 2026, the appellant acknowledged that the question of jurisdiction was not raised before the Trial Court, but nonetheless urged that the Trial Court lacked jurisdiction to determine the dispute. It relied on the cases of Southern Star SACCO Ltd. Vs Vanacio Ntwiga [2021] eKLR and National Social Security Fund Board of Trustees Vs Kenya Tea Growers Association & 14 Others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) for the submission that a question on jurisdiction may be raised for the first time even on appeal.
14. In its view, the dispute related to contributions and benefits under the National Social Security Fund Act and is hence subject to the resolution mechanism under Section 53 of the NSSF Act before approaching the courts as was held in the case of Mumba & 7 Others (Sued on their own behalf and on behalf of predecessors and/or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) Vs 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] KESC 83 (KLR).
15. The correct forum, in their view, was the Retirement Benefits Appeal Tribunal under Section 53 of the NSSF Act. Having failed to file their case before the appropriate statutory-dictated forum, it was postulated that the suit before the trial court ran afoul the principle of exhaustion, as more elaborately clarified in Mumba Case and William Odhiambo Ramogi & 3 Others Vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (2020) eKLR. It was further argued that just like the High Court in Republic Vs Retirement Benefits Authority Ex parte Alex Anyona Momanyi & 6 Others [2022] KEHC 26926 (KLR), the trial court ought to have declined adjudicating over the dispute.
The Respondent’s Submissions
16. In opposition to the appeal, the respondent, through his legal representatives, filed submissions dated 22 nd May 2026. At the outset, he pointed out that the record of appeal was incomplete since the appellant failed to attach an unsuccessful application dated 3 rd April 2023 filed before the trial court seeking review of the trial court’s decision and the Ruling thereto delivered on 16 th August 2024. Accordingly, he argued that the appeal is improperly before this Court as a party cannot apply for review and lodge an appeal against the same decision. In any case, he submitted that the appeal ought to have been preferred against the Ruling of 16 th August 2024 and not the Judgment.
17. On the issue of jurisdiction, the respondent argued that the appellant could not challenge the trial court’s jurisdiction at the appellate stage having failed to raise the same before the trial court. Furthermore, he argued that the dispute did not fall within the province of Section 53 of the NSSF Act. According to him, the issue revolved around the payment of his contributions and was, as such, a claim for Kshs. 172,595.41/-, being money owed and not paid. Relying on Montex Knitwear Ltd. vs Gopitex Knitwear Mills Ltd. Nairobi (Milimani) HCCC No. 834 of 2002, it was asserted that, having failed to call witnesses, the respondent’s case stood unchallenged and the appellant’s case unsubstantiated.
18. In addition, he submitted that, in his view, the appellant’s contention that the Retirement Benefits Appeal Tribunal had jurisdiction was raised as an afterthought after failing to convince the trial court to set aside the interlocutory judgment. Accordingly, he urged this Court to dismiss the appeal.
ANALYSIS AND DETERMINATION
19. This being a first appeal, this court’s duty is to analyze and re-assess the evidence on record and reach its own conclusions in the matter, as set out succinctly in Selle v. Associated Motor Boat Co. [1968] EA 123 .
20. I have carefully considered the appeal, rival submissions, statutory and jurisprudential framework. I find that the appeal turns on two issues: whether the appeal is competently before the Court; and if so, whether the trial court had jurisdiction to determine the dispute .
21. The law on jurisdiction is settled. Jurisdiction flows from the Constitution or legislation, and a court cannot arrogate to itself jurisdiction beyond that conferred by law. Where a court finds that it lacks jurisdiction, it must down its tools. See The Owners of the Motor Vessel Lilian ‘S’ vs Caltex Kenya Ltd. (1989) KLR 1 and Macharia & Another vs Kenya Commercial Bank Ltd. & 2 Others (Application 2 of 2011) [2012] KESC 8 (KLR).
22. Of particular concern to this matter is when a contest on jurisdiction can be raised. This is also well settled: a question of jurisdiction may be raised at any time, even on appeal for the first time. The general rule that a party cannot raise a new issue for the first time on appeal does not apply when the issue is jurisdiction. See Kenya Ports Authority vs Modern Holdings (E.A.) Ltd. [2017] KECA 293 (KLR) and Dubai Bank Kenya Ltd. vs Kwanza Estates Ltd. [2015] KECA 729 (KLR).
23. The respondent, however, contends that the appeal is incompetent because the appellant first sought review of the Judgment dated 22 nd November 2022 and, having failed in that endeavour, could not subsequently appeal against the same Judgment. The position is that a party who elects review cannot, upon dismissal of the review application, pursue an appeal against the very decision sought to be reviewed. An appeal may instead lie against the decision determining the review application. See Gerald Kituu Muchanje v Catherine Muthoni Ngare & another [2020] KECA 511 (KLR)
24. However, jurisdiction is a fundamental issue that goes to the competence of the very proceedings. Since the appeal expressly challenges the trial court’s jurisdiction, this Court must determine whether that jurisdictional challenge can properly be entertained.
25. The appellant contended that the subject-matter of the dispute was within the province of the Retirement Benefits Appeals Tribunal while the respondent argued that the dispute was for a claim of money owed and unpaid. Looking at the material before this Court, the respondent claimed that he made contributions to the NSSF which were not remitted to him when he applied for the same.
26. The statutory regime in play in this case is the National Social Security Fund Act, NSSF Act. The preamble reads that the Act establishes the NSSF to provide for contributions to, and payment of benefits out of the Fund and for connected matters. The respondent's claim was not a simple debt claim. He pleaded that he had contributed to the NSSF Fund and sought payment of benefits allegedly due to him under the NSSF scheme. The claim therefore arose directly from the statutory relationship created by the NSSF Act. The demand letters and documents on record confirm that the payment sought was the respondent's NSSF benefit. I therefore reject the contention that the dispute was merely one for recovery of money owed
27. Section 53 of the NSSF Act provides that any dispute relating to, inter alia, contributions and benefits arising from the application of the Act shall be referred to the Tribunal established under the Retirement Benefits Act. That Tribunal is the Retirement Benefits Appeals Tribunal established under Section 47 of the RBA. The statutory scheme therefore places such disputes within a specialized dispute-resolution mechanism. See Mumba & 7 Others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) vs 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)) (Petition 3 of 2016) [2019] KESC 83 (KLR) and George Omondi & 210 Others vs Retirement Benefits Appeals Tribunal & 2 Others [2020] KECA 666 (KLR).
28. In the circumstances, I find that the respondent's claim was a dispute relating to benefits arising under the NSSF Act and was therefore subject to the dispute-resolution mechanism prescribed by Section 53 thereof. The trial court consequently lacked jurisdiction to entertain the suit.
29. Accordingly, the appeal succeeds. I hereby set aside the trial court’s Judgment in toto . In view of the appellant’s conduct before the trial court, I see no reason to burden the respondent with costs. Accordingly, parties shall bear their own costs.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 17 th day of September 2026.