1. The applicant filed a Notice of Motion dated 25/02/2025.In objecting the application ,the Respondent filed a Notice of Preliminary Objection dated 11.7.25 raising the following Objections:
1) The Motion improperly invokes this Honourable Court’s execution jurisdiction because the subject Judgment dated 27/07/2011 (“the Judgment”), the resulting Decree dated 27/07/2011 (“the Decree”), and the Order interpreting the Judgment dated 21/11/2012 (“the interpretative order”) were not transferred by the Retirement Benefits Appeals Tribunal (“the RBAT”) to this Honourable Court for execution under Section 31 of the Civil Procedure Act (“the CPA”) as read with Order 22 Rule 6 of the Civil Procedure Rules (“the Rules”).
2) Section 4 (4) of the Limitation of Actions Act statutory bars the enforcement of judgments, decrees, and /or orders that are over 12 years old.
3) Order 53 Rule 1 of the Rules bars the Applicant from seeking prayers 1 and 2 of the Motion without leave.
4) Section 52 of the Retirement Benefits Act and Rule 12 of the Retirement Benefits (Tribunal) Rules permit the RBAT to adopt the CPA and the Rules to enforce its own decrees or orders. Consequently, the Applicant is barred by the doctrine of (see Speaker of the National Assembly v Karume [1992] KECA 42 (KLR).
5) Given the preceding, the Motion is—
a) Is premised on an incurable jurisdictional defect (see the Supreme Court’s holding in Application No. 2 of 2011: Samuel Kamau Macharia and Another v Kenya Commercial Bank Limited and 2 Others);
b) Is premature and defective and
c) And an outright abuse of the process of this Honourable Court and should be dismissed with costs to the Respondent.
The Respondent’s Submissions;
2. Jurisdiction is the lifeblood of judicial authority.
3.It is derived solely from the Constitution or legislation, or both, and never assumed, conferred or expanded through judicial innovation or craft (Macharia & another v Kenya Commercial Bank Limited & 2 others [2012) KESC 8 (KLRJ).' Indeed, even the oft-invoked panacea of Article 159 (2)(d) of the Constitution yields where jurisdiction or imitation of time arises as set out in Republic v Cabinet Secretary, Ministry of Land & Physical Planning & 3 others: Mugo (Exparte Applicant): Kamumo & another (Interested Parties/ (2023) KEELC 19057/KLRJ.
4.The Motion impermissibly demands execution and/or enforcement of the Judgment and Order through on order of Mandamus, a narrow remedy reserved exclusively for decrees and/or orders against government entities.
6. The Respondent submits that it is not a government entity. The Applicant has not invoked a statutory remedy under the Civil Procedure Act.
7. A perusal of the Motion the Response reveals that there are questions arising between parties regarding execution, discharge, or satisfaction of the RBA judgment and Order relevant
8. The legal issue for determination is whether this Honourable Court has jurisdiction over the Motion.It does not.
9. It submits that Article 165 (3) (a) of the Constitution does not give this Honourable Court original jurisdiction to enforce or execute decisions or orders from the RBA. Furthermore, no legislation under Article 165 (1)(e) of the Constitution grants the High Court such jurisdiction.
10. Sections 30 and 31 of the CPA, and Order 22, rule 4 of the Civil Procedure Rule are decisive that an order or decree may only be executed by the court that issued it or by another court to which it has been lawfully transferred.
Without a transfer of the RBAT's Orders to this Honourable Court jurisdiction is absent (Mwaura v Njuguna & 3 others |2023) KEEL 16220/KLR)5 and Ndunda v Independent Electoral & Boundaries Commission & 2 others |2025] KEHC 14710 (KLR|4) according to the Rspondent.
11. Section 34 [1] of the CPA further mandates that all questions arising between parties and/or representatives to an order or decree regarding execution, discharge, or satisfaction of the same must be resolved solely by the executing court.
12. This Honourable Court lacks jurisdiction to enforce the Judgment and Order because the RBAT is a subordinate court within the meaning of Article 169 (I)[d) of the Constitution as read with section 2 of the CPA and section 2 of the interpretation and General Provisions Act.Under sections 28 and 30 of the CPA and Order 22, rule 6 of the CPR, a decree and/or order can only be executed by a court that passed it, or a court to which it has been lawfully transferred for execution upon Application by the decree-holder.
13. It submits that the RBAT Judgment and Order are more than 12 years old. As such, no enforcement and/or execution can ensue given that Sections 4(1)(c) and 4(4) of the Limitation of Actions Act, rendering the Motion statute-bared and incompetent.The RBAT Judgment was delivered on 27thJuly, 2011 and the interpretive RBAT Order was issued on 12th November, 2012.
14. No execution proceedings have ever been undertaken in accordance with the law, despite there being no orders of stay of execution issued against the RBAT Judgment or Order.
15. It submits that the issue of limitation goes to the root of jurisdiction as enunciated in Thuranira Karauri v Agnes Ncheche (1997) KECA 77 [KLR) " The instant Motion, was filed over 12 years later and it is thus time-bared.
16. It submits that this Honourable Court lacks jurisdiction to entertain a statute-barred Motion as guided by the case M'iara M'rinkanya & another v Gilbert Kobeere M'mbywe (2007] KECA 115 [KLR) ond WalDka v Waitika; Waifuko 82 others (Third party) [2024) KEELC 1505 (KLR])."
17. Section 52 of the Retirement Benefits Act ["the RBA Act") and Rule 12 of the Retirement Benefits (Tribunal) Rules ("the RBAT Rules", which unequivocally permit RBAT to adopt the CPA and the CPR in matters of procedure not encapsulated in the RBAT Rules or RBA Act:
19. Section 30 of the CPA and Order 22, rule & of the CPR, which allow him to comply to RBAT for enforcement, or to have the decree or order transferred or sent for execution to another court of competent jurisdiction.
20. The Court of Appeal's binding precedent in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR]" is decisive that redress of any particular grievance prescribed by the Constitution or an Act of Parliament should be strictly followed even in the existence of practical difficulties.
21. It submits that the orders of mandamus in prayers 1 and 2 of the Motion are sought in clear violation of Order 53, rule 1 of the CPR, to the extent that no leave has been sought or obtained prior to filing the Motion.
22.He submits that any prayer styled as mandamus is void ab initio for failure to comply with the mandatory provisions.
The Exparte Applicant's Submissions;
23. In challenging the Notice of Preliminary Objection, it is his submission that the Retirement Benefits Appeals Tribunal (hereinafter "RBAT") issued a judgment that was delivered on 27th July 2011 and interpreted through its Order of 21stNovember 2012.
24. The Applicant filed the instant Application seeking an order of Mandamus to compel the Respondent to comply with the binding judgment.
25. In response to the Application, The Respondent filed a Preliminary Objection seeking to block the Applicant's Notice of Motion dated 25th February 2025 on five grounds:
a. The Court’s lack of jurisdiction for want of transfer of RBAT orders to the High Court;
b. Inapplicability of mandamus against a private entity;
c. Failure to seek leave under Order 53 Rule 1 of the Civil Procedure Rules;
d. Limitation under Section 4(4) of the Limitation of Actions Act; and
e. The doctrine of statutory exhaustion and alleged abuse of court process.
26. On 27 July 2011, the Retirement Benefits Appeals Tribunal rendered its judgment, ordering the Respondent to:
a) Provide a true, full, and proper account of the Applicant's pension benefits; and
b) Settle the said benefits accordingly.
c) the Tribunal, issued a further Order on 21st November 2012.
27. Rather than comply, the Respondent embarked on a series of legal challenges, all of which were unsuccessful:
a) Judicial Review Misc. Civil ApplicationNo. 403 of 2012 - Application dismissed.
b) Civil Appeal No. 284 of 2013 - Dismissed by the Court of Appeal on 10 May 2019.
c) Judicial Review Application No. E048 of 2022 - Only quashed a subsequent ruling but upheld the Tribunal's core findings.
d) Review Applications filed at the Tribunal on 10 September 2019 and 22 January 2024 - Both dismissed.
28. The Respondent has refused to comply with the Tribunal's judgment, leaving the Applicant, now elderly and financially strained, without access to funds he lawfully contributed during his working life.
29.In answering whether this Honourable Court possesses jurisdiction to enforce the judgment and orders of the Retirement Benefits Appeals Tribunal (RBAT),The Respondent contends that this Honourable Court lacks jurisdiction to enforce RBAT orders as they have not been transferred to the High Court under Section 31 of the Civil Procedure Act.
30. Section 7 of the Fair Administrative Actions Act provides that: -
“Institution of proceedings
(1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to– (a) a court in accordance with section 8; or
(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.”
31. Section 3A of the Civil Procedure act preserves the inherent powers of the Court, stipulating that:
“3A. Saving of inherent powers of court.
Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
32. Section 10 of the Fair Administrative Actions Act provides that;
“10. Rules
(1) An Application for judicial review shall be heard and determined without undue regard to procedural technicalities.”
33. The High Court retains a residual jurisdiction to intervene in exceptional circumstances to prevent injustice, and guarantee that lawful orders are not rendered nugatory.
34. This jurisdiction is not ousted by procedural technicalities, particularly where the Respondent has persistently refused to comply with a valid judgment of the Tribunal for over 14 years.
35. In the case of Rev. Madara Evans OkangaDondo vs. Housing Finance Company of Kenya Nakuru HCCC No. 262 Of 2005, Kimaru, J on the issues of the court’s inherent jurisdiction held:
“The court will always invoke its inherent jurisdiction to prevent the abuse of the due process of the court. The jurisdiction of the court, which is comprised within the term “inherent”, is that which enables it to fulfil itself, properly and effectively, as a court of law...The inherent jurisdiction of the court enables the court to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process. In sum, it may be said that the inherent jurisdiction of the court is virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”
36. In Meshallum Wanguhu vs. Kamau Kania Civil Appeal No. 101 of 1984 1 KAR 780 [1987] KLR 51; [1986-1989] EA 593, Hancox, JA (as he then was) emphasised on the court’s residual jurisdiction under Section 3A of the Civil Procedure Act, by holding that such residual jurisdiction should only be used, in special circumstances in order to put right that which would otherwise be a clear injustice. In the instant Application, a retiree has been denied his pension benefits for nearly two decades despite multiple judicial pronouncements in his favour.
37. One of the instances in which the court exercises this residual power is in the fulfilment of its obligation to ensure that orders issued are not issued in vain.
38. This was recognised by the Court of Appeal in Nicholas Mahihu vs. Ndima Tea Factory Ltd & Another Civil Application No. Nai. 101 of 2009 where it was held that: -
“Although we have restated the two main principles which this Court considers in this type of Application, the Court has a duty to ensure that its orders are at all times effective.”
39. The present matter discloses exceptional circumstances warranting the Court’s intervention.
40. The Applicant, a retiree who left service in June 2009, has been denied access to his pension benefits for over fifteen years despite a clear judgment of the Retirement Benefits Appeals Tribunal and an interpretative order.
41. The Respondent has persistently refused to comply, engaging instead in prolonged litigation that has never set aside or varied the Tribunal’s findings. This continued refusal amounts to an arbitrary administrative decision that has left the Applicant in financial hardship and distress.
42. In these circumstances, the Court’s inherent jurisdiction under Section 3A of the Civil Procedure Act is properly invoked to prevent injustice.
43. Without prejudice to the foregoing, the Applicant respectfully submits that the RBAT is a quasi-judicial body established under Section 47 of the Retirement Benefits Act.
44. The Tribunal's decisions, once rendered, carry the force of law and are binding upon the parties unless varied, set aside, or stayed by a competent court.
45. While the Act provides a clear mechanism for lodging appeals before the Tribunal, it is notably silent on the procedure for enforcing its decisions.
46. This statutory lacuna mirrors the enforcement dilemma faced under the Work Injury Benefits Act (WIBA), where courts were called upon to bridge the legislative gap and uphold substantive justice in enforcing orders issued by the Director.
47. In this regard, the reasoning of the court in Lagat v Kenya Ordinance Factories Corporation (Miscellaneous Cause E038 of 2023) [2024] KEELRC 1118 (KLR) (25 April 2024) is instructive. The court held:
“...until the Work Injury Benefits Act is reviewed and a provision made on the manner in which the Director’s awards are to be executed, the courts must do substantive justice and give effect to the very clear and unambiguous intentions of the Act by enforcing the decisions of the Director. Both Article 159(2) of the Constitution and section 20(1) of this court’s Act require that the court does substantive justice and acts without undue regard to technicalities…”
48. This court has jurisdiction to enforce the judgment and orders of the RBAT.
49. The Respondent argues that mandamus cannot issue against it as it is a private pension trust. Respectfully, this argument is outdated as it fails to appreciate the evolution of judicial review remedies under the Fair Administrative Action Act, 2015.
50. Section 11(1)(f) of the Fair Administrative Action Act, 2015 provides that;
“11. Orders in proceedings for judicial review
(1) In proceedings for judicial review under section 8(1), the court may grant any order that is just and equitable, including an order–
(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the Applicant has a legally enforceable right.”
51. The Act defines an “administrator” under Section 2 as “a person who takes an administrative action or who makes an administrative decision.” The Respondent, in administering pension benefits, falls squarely within this definition.
52. Its role in determining and paying retirement benefits is an administrative function, and its refusal to comply with the Tribunal’s judgment constitutes administrative action subject to judicial review.
53. Section 2 of the Act further defines “administrative action” to include:
“(a) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or
(b) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates”
54. The Respondent’s refusal to pay the Applicant’s pension benefits is an omission that directly affects the Applicant’s legal rights.
55. It therefore carries a public element and is amenable to judicial review remedies, including mandamus.
56. In Republic v Jomo Kenyatta University of Agriculture and Technology Ex parteElijah Kamau Mwangi [2021] eKLR, the Court cited with approval the decision in Republic v Commissioner of Lands & Another Ex-Parte Kithinji MuruguM'agere, Nairobi High Court Misc. Application No. 395 of 2012, where it was held that Mandamus is designed to enforce the performance of a public duty that is neither optional nor discretionary. Further, the duty enforceable by Mandamus need not necessarily be a statutory one, it may be one that carries a public element, expressed in any form.
57. In Republic v Principal Secretary, Ministry of Internal Security & Another Exparte Schon Noorani [2018] eKLR, where the Court summarised the requirements for the grant of Mandamus as follows:
a) There must be a public legal duty to act;
b) The duty must be owed to the Applicant;
c) There must be a clear right to the performance of that duty, evidenced by: Satisfaction of all condition’s precedent;
d) A prior demand for performance;
e) Either a refusal or unreasonable delay;
f) There must be no other adequate remedy;
g) The order sought must be of practical value or effect;
h) There must be no equitable bar to the relief;
i) On a balance of convenience, the order should be granted
58. The Applicant submits that the requirements have been fully met in that;
a) The Respondent owes a public legal duty to administer and pay pension benefits.
b) That duty is owed directly to the Applicant.
c) The Tribunal’s judgment and interpretative order established the Applicant’s clear right to performance.
d) The Respondent has refused and unreasonably delayed compliance for over fourteen years.
e) No other adequate remedy exists, as repeated litigation has failed to secure compliance. ✓ The order sought will have practical value by ensuring the Applicant’s constitutional right to social security under Article 43(1)(e) is realised.
59. An order of mandamus, as prayed for, is not confined exclusively to government entities but extends to anybody or authority whose administrative action affects the legal rights or interests of any person to whom such action relates.
60. In answering whether failure to seek leave under Order 53 Rule 1 renders the Application incompetent,the Respondent contends that the Applicant's failure to seek leave under Order 53 Rule 1 of the Civil Procedure Rules renders the Application fatally defective. The Applicant respectfully submits that this contention is based on a misconception of the applicable law.
61. The present Application is not anchored on Order 53 of the Civil Procedure Rules but on the Fair Administrative Action Act, 2015, which provides a self-standing statutory framework for judicial review that operates independently of Order 53.
62. Section 7 of the Act expressly grants an aggrieved person the right to apply for review of administrative action, while Section 9(1) provides that such an Application may be made directly to the High Court without unreasonable delay.
63. In Bhojwani & another v Director of Public Prosecutions & another (Judicial Review Miscellaneous Application E114 of 2025) [2025] KEHC 16305 (KLR) (Judicial Review) (13 November 2025) (Ruling) this Honourable Court recognized that;
“It is further important to observe that with the enactment of the Fair Administrative Action (Judicial Review Procedure) Rules, 2024, a new legal regime now exists giving full effect to Article 47 of the Constitution and the Fair Administrative Action Act, 2015. Under this framework, an Applicant alleging that their right to fair administrative action has been violated, denied, or threatened may directly institute judicial review proceedings without the necessity of first seeking leave of the Court. It therefore follows that a party may properly approach this Court under the Fair Administrative Action Act and the 2024 Rules, as promulgated in October 2024.”
64. In Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment), this court was tasked with the responsibility to determine whether there’s need for Parliament to repeal sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules to avoid confusion as to the manner in which judicial review actions should be instituted, the court observed that:
“A perusal of the FAA Act clearly shows that Parliament intended to substitute the judicial review under the common law with statutory judicial review, and this explains why Part III (sections 7 to 11) of the Act is clearly titled “Judicial Review”. One cannot therefore understand why Parliament did not go to the whole hog by repealing sections 8 and 9 of the LR Act. The failure to repeal the impugned provisions of the LR Act has led to the continuing confusion as regards the procedure for institution of judicial review proceedings. It is noted that rules have not been made as provided by section 10(2) and regulations have also not been enacted under section 13 of the FAA Act even though the law is already operational...It is observed that the FAA Act does not make any reference to the requirement for leave before commencement of judicial review proceedings and in fact disdains undue regard to procedural technicalities in judicial review Applications...The FAA Act appears to have created a new legal regime for review of administrative action. This regime is more aligned to articles 23 and 47 of the Constitution and should be the sole foundation of judicial review in this country…
As already stated, all law must conform to the provisions of the Constitution and it therefore follows that the provisions of sections 8 and 9 of the LR Act and order 53 CPR must conform to the Constitution or be construed with such adaptations, alterations and modifications so as to conform with the Constitution...Nevertheless, as I have already stated, sections 8 and 9 of the LR Act and order 53 of the CPR have been rendered otiose and their continued retention in our statute books will only serve to promote the wrong notion that Kenya has a two-tracked system for seeking judicial review against administrative action.”
65. The Applicant therefore humbly submits that the requirement for leave under Order 53 Rule 1 has been rendered otiose by the statutory right to apply for review under Section 7 of the Fair Administrative Action Act.
66. To hold otherwise would elevate technical form over substantive justice, contrary to Article 159(2)(d) of the Constitution.
67. On the issue of limitation of action ,the Respondent argues that enforcement of the 2011 judgment is barred by Section 4(4) of the Limitation of Actions Act, which prescribes a 12-year limitation period for enforcement of judgments.
68. The Applicant respectfully submits that this argument is misconceived and ignores the factual matrix of this case.
69. The Applicant could not institute execution proceedings while the Respondent’s multiple appeals and review Applications seeking to set aside the Tribunal’s orders were pending.
70. The Court of Appeal’s judgment, delivered on 10th May 2019, finally affirmed the Applicant’s entitlement.
71. The Respondent cannot benefit from its own delays. The Respondent has, since 2011, engaged in:
a) Judicial Review Misc. Civil Application No. 403 of 2012 - Application dismissed.
b) Civil Appeal No. 284 of 2013 - Dismissed by the Court of Appeal on 10 May 2019.
c) Judicial Review Application No. E048 of 2022 - Only quashed a subsequent ruling but upheld the Tribunal's core findings.
d) Review Applications filed at the Tribunal on 10 September 2019 and 22 January 2024 - Both dismissed.
72. These proceedings, all initiated by the Respondent, have consumed over 12 years.
73. The Respondent cannot now turn around and argue that the Applicant is time-barred due to delays the Respondent itself occasioned.
74. The Applicant submits that the present Application, filed in 2025, is well within time as the right to enforce crystallised only after the Court of Appeal’s dismissal of the Respondent’s appeal in 2019.
75. The Applicant’s Application is not statute-barred and that the Respondent’s reliance on limitation is both inequitable and legally untenable.
76. The Respondent argues that the Applicant ought to have invoked enforcement mechanisms before the Tribunal under Section 52 of the Retirement Benefits Act.
77. Section 9(4) of the Fair Administrative Action Act, 2015 provides an express exemption from the exhaustion requirement:
"(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on Application by the Applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice."
78. In Republic v Nairobi City County; Ibrahim (Exparte Applicant) (Environment and Land Judicial Review Case 4 of 2023) [2025] KEELC 48 (KLR) (16 January 2025) (Judgment), the court held that:
“Though Section 9, of the Fair Administrative Actions Act requires an Applicant for purposes of judicial review to first exhaust the mechanisms, including internal mechanisms for appeal and review and all remedies available under any written law, Sub-section (4) allows the court in exceptional circumstances and on an Application by the Applicant to exempt a person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice... The Applicant had no other choice but to seek relief from this court. It was in the interest of justice that he be exempted from the obligation to exhaust the statutory remedy of going to the liaison committee first. The Applicant’s case does not therefore violate the doctrine of exhaustion, and this court has the jurisdiction to entertain and determine this matter. The preliminary objection by the Respondent is therefore unmerited and is hereby dismissed.”
79. In the case of Kenya Bureau of Standards and 4 others; Exparte United Millers Limited; Department of Health Services, Nakuru County (interested party), Mativo J (as he then was), stated that,
“What constitutes exceptional circumstances depends on the facts of each case and it is not possible to have a closed list. Article 4 of the Constitution is heavily borrowed from the South African Constitution.
In addition, the FAA Act is heavily borrowed from the South African equivalent legislation, hence, jurisprudence from South African Courts interpreting similar circumstances and provisions are of greater value, relevance and may be useful guidance.”
80. The judge proceeded to cite with approval the decision in the South African case of MV AisMamas Seatrans Maritime – vs- Owner MV Ais Mamas & ano 2002(6) SA at 156H, where the court stated as follows;
i. What is ordinarily contemplated by the words ‘exceptional circumstances’ is something out of the ordinary and of an unusual nature; something which is accepted in the sense that the general rule does not apply to it; something uncommon, rare or different…
ii. To be exceptional the circumstances concerned must arise out of, or be incidental to, the particular case.
iii. Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a Judicial discretion; their existence or otherwise is a matter of fact which the court must decide accordingly.
iv. Depending on the context in which it is used, the word ‘exceptional’ has two shades of meaning; the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different.
v. Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will generally be speaking, best be given to the intention of the legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional. In a nutshell the context is essential in the process of considering what constitutes exceptional circumstances.
81. The present matter discloses exceptional circumstances warranting exemption from the exhaustion requirement in that:
a) The Applicant is an elderly retiree who has been denied his pension for over 15 years, despite having faithfully made monthly pension contributions to the Respondent during the entirety of his tenure;
b) The Respondent has demonstrated a pattern of defiance and non-compliance with Tribunal orders;
c) Multiple appeals and Applications by the Respondent have already delayed justice;
d) Returning to the Tribunal would occasion further delay and injustice;
e) The Tribunal's orders are clear and require no further interpretation, having already been interpreted by the Tribunal;
f) The Respondent's refusal to comply amounts to a violation of the Applicant's constitutional rights under Article 43 on economic and social rights.
82. In these circumstances, the Applicantrespectfully urges this Honourable Court to exercise its discretion under Section 9(4) of the Fair Administrative Action Act and exempt the Applicant from the exhaustion requirement.
83. The Court’s intervention is necessary to ensure that justice is not defeated by technical reliance on procedural bars, and that the Applicant’s rights are protected without further delay.
84. In Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR), the Court held that;
“The situations
[...truncated]
1) The Motion improperly invokes this Honourable Court’s execution jurisdiction because the subject Judgment dated 27/07/2011 (“the Judgment”), the resulting Decree dated 27/07/2011 (“the Decree”), and the Order interpreting the Judgment dated 21/11/2012 (“the interpretative order”) were not transferred by the Retirement Benefits Appeals Tribunal (“the RBAT”) to this Honourable Court for execution under Section 31 of the Civil Procedure Act (“the CPA”) as read with Order 22 Rule 6 of the Civil Procedure Rules (“the Rules”).
2) Section 4 (4) of the Limitation of Actions Act statutory bars the enforcement of judgments, decrees, and /or orders that are over 12 years old.
3) Order 53 Rule 1 of the Rules bars the Applicant from seeking prayers 1 and 2 of the Motion without leave.
4) Section 52 of the Retirement Benefits Act and Rule 12 of the Retirement Benefits (Tribunal) Rules permit the RBAT to adopt the CPA and the Rules to enforce its own decrees or orders. Consequently, the Applicant is barred by the doctrine of (see Speaker of the National Assembly v Karume [1992] KECA 42 (KLR).
5) Given the preceding, the Motion is—
a) Is premised on an incurable jurisdictional defect (see the Supreme Court’s holding in Application No. 2 of 2011: Samuel Kamau Macharia and Another v Kenya Commercial Bank Limited and 2 Others);
b) Is premature and defective and
c) And an outright abuse of the process of this Honourable Court and should be dismissed with costs to the Respondent.
The Respondent’s Submissions;
2. Jurisdiction is the lifeblood of judicial authority.
3.It is derived solely from the Constitution or legislation, or both, and never assumed, conferred or expanded through judicial innovation or craft (Macharia & another v Kenya Commercial Bank Limited & 2 others [2012) KESC 8 (KLRJ).' Indeed, even the oft-invoked panacea of Article 159 (2)(d) of the Constitution yields where jurisdiction or imitation of time arises as set out in Republic v Cabinet Secretary, Ministry of Land & Physical Planning & 3 others: Mugo (Exparte Applicant): Kamumo & another (Interested Parties/ (2023) KEELC 19057/KLRJ.
4.The Motion impermissibly demands execution and/or enforcement of the Judgment and Order through on order of Mandamus, a narrow remedy reserved exclusively for decrees and/or orders against government entities.
6. The Respondent submits that it is not a government entity. The Applicant has not invoked a statutory remedy under the Civil Procedure Act.
7. A perusal of the Motion the Response reveals that there are questions arising between parties regarding execution, discharge, or satisfaction of the RBA judgment and Order relevant
8. The legal issue for determination is whether this Honourable Court has jurisdiction over the Motion.It does not.
9. It submits that Article 165 (3) (a) of the Constitution does not give this Honourable Court original jurisdiction to enforce or execute decisions or orders from the RBA. Furthermore, no legislation under Article 165 (1)(e) of the Constitution grants the High Court such jurisdiction.
10. Sections 30 and 31 of the CPA, and Order 22, rule 4 of the Civil Procedure Rule are decisive that an order or decree may only be executed by the court that issued it or by another court to which it has been lawfully transferred.
Without a transfer of the RBAT's Orders to this Honourable Court jurisdiction is absent (Mwaura v Njuguna & 3 others |2023) KEEL 16220/KLR)5 and Ndunda v Independent Electoral & Boundaries Commission & 2 others |2025] KEHC 14710 (KLR|4) according to the Rspondent.
11. Section 34 [1] of the CPA further mandates that all questions arising between parties and/or representatives to an order or decree regarding execution, discharge, or satisfaction of the same must be resolved solely by the executing court.
12. This Honourable Court lacks jurisdiction to enforce the Judgment and Order because the RBAT is a subordinate court within the meaning of Article 169 (I)[d) of the Constitution as read with section 2 of the CPA and section 2 of the interpretation and General Provisions Act.Under sections 28 and 30 of the CPA and Order 22, rule 6 of the CPR, a decree and/or order can only be executed by a court that passed it, or a court to which it has been lawfully transferred for execution upon Application by the decree-holder.
13. It submits that the RBAT Judgment and Order are more than 12 years old. As such, no enforcement and/or execution can ensue given that Sections 4(1)(c) and 4(4) of the Limitation of Actions Act, rendering the Motion statute-bared and incompetent.The RBAT Judgment was delivered on 27thJuly, 2011 and the interpretive RBAT Order was issued on 12th November, 2012.
14. No execution proceedings have ever been undertaken in accordance with the law, despite there being no orders of stay of execution issued against the RBAT Judgment or Order.
15. It submits that the issue of limitation goes to the root of jurisdiction as enunciated in Thuranira Karauri v Agnes Ncheche (1997) KECA 77 [KLR) " The instant Motion, was filed over 12 years later and it is thus time-bared.
16. It submits that this Honourable Court lacks jurisdiction to entertain a statute-barred Motion as guided by the case M'iara M'rinkanya & another v Gilbert Kobeere M'mbywe (2007] KECA 115 [KLR) ond WalDka v Waitika; Waifuko 82 others (Third party) [2024) KEELC 1505 (KLR])."
17. Section 52 of the Retirement Benefits Act ["the RBA Act") and Rule 12 of the Retirement Benefits (Tribunal) Rules ("the RBAT Rules", which unequivocally permit RBAT to adopt the CPA and the CPR in matters of procedure not encapsulated in the RBAT Rules or RBA Act:
19. Section 30 of the CPA and Order 22, rule & of the CPR, which allow him to comply to RBAT for enforcement, or to have the decree or order transferred or sent for execution to another court of competent jurisdiction.
20. The Court of Appeal's binding precedent in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR]" is decisive that redress of any particular grievance prescribed by the Constitution or an Act of Parliament should be strictly followed even in the existence of practical difficulties.
21. It submits that the orders of mandamus in prayers 1 and 2 of the Motion are sought in clear violation of Order 53, rule 1 of the CPR, to the extent that no leave has been sought or obtained prior to filing the Motion.
22.He submits that any prayer styled as mandamus is void ab initio for failure to comply with the mandatory provisions.
The Exparte Applicant's Submissions;
23. In challenging the Notice of Preliminary Objection, it is his submission that the Retirement Benefits Appeals Tribunal (hereinafter "RBAT") issued a judgment that was delivered on 27th July 2011 and interpreted through its Order of 21stNovember 2012.
24. The Applicant filed the instant Application seeking an order of Mandamus to compel the Respondent to comply with the binding judgment.
25. In response to the Application, The Respondent filed a Preliminary Objection seeking to block the Applicant's Notice of Motion dated 25th February 2025 on five grounds:
a. The Court’s lack of jurisdiction for want of transfer of RBAT orders to the High Court;
b. Inapplicability of mandamus against a private entity;
c. Failure to seek leave under Order 53 Rule 1 of the Civil Procedure Rules;
d. Limitation under Section 4(4) of the Limitation of Actions Act; and
e. The doctrine of statutory exhaustion and alleged abuse of court process.
26. On 27 July 2011, the Retirement Benefits Appeals Tribunal rendered its judgment, ordering the Respondent to:
a) Provide a true, full, and proper account of the Applicant's pension benefits; and
b) Settle the said benefits accordingly.
c) the Tribunal, issued a further Order on 21st November 2012.
27. Rather than comply, the Respondent embarked on a series of legal challenges, all of which were unsuccessful:
a) Judicial Review Misc. Civil ApplicationNo. 403 of 2012 - Application dismissed.
b) Civil Appeal No. 284 of 2013 - Dismissed by the Court of Appeal on 10 May 2019.
c) Judicial Review Application No. E048 of 2022 - Only quashed a subsequent ruling but upheld the Tribunal's core findings.
d) Review Applications filed at the Tribunal on 10 September 2019 and 22 January 2024 - Both dismissed.
28. The Respondent has refused to comply with the Tribunal's judgment, leaving the Applicant, now elderly and financially strained, without access to funds he lawfully contributed during his working life.
29.In answering whether this Honourable Court possesses jurisdiction to enforce the judgment and orders of the Retirement Benefits Appeals Tribunal (RBAT),The Respondent contends that this Honourable Court lacks jurisdiction to enforce RBAT orders as they have not been transferred to the High Court under Section 31 of the Civil Procedure Act.
30. Section 7 of the Fair Administrative Actions Act provides that: -
“Institution of proceedings
(1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to– (a) a court in accordance with section 8; or
(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.”
31. Section 3A of the Civil Procedure act preserves the inherent powers of the Court, stipulating that:
“3A. Saving of inherent powers of court.
Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
32. Section 10 of the Fair Administrative Actions Act provides that;
“10. Rules
(1) An Application for judicial review shall be heard and determined without undue regard to procedural technicalities.”
33. The High Court retains a residual jurisdiction to intervene in exceptional circumstances to prevent injustice, and guarantee that lawful orders are not rendered nugatory.
34. This jurisdiction is not ousted by procedural technicalities, particularly where the Respondent has persistently refused to comply with a valid judgment of the Tribunal for over 14 years.
35. In the case of Rev. Madara Evans OkangaDondo vs. Housing Finance Company of Kenya Nakuru HCCC No. 262 Of 2005, Kimaru, J on the issues of the court’s inherent jurisdiction held:
“The court will always invoke its inherent jurisdiction to prevent the abuse of the due process of the court. The jurisdiction of the court, which is comprised within the term “inherent”, is that which enables it to fulfil itself, properly and effectively, as a court of law...The inherent jurisdiction of the court enables the court to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process. In sum, it may be said that the inherent jurisdiction of the court is virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”
36. In Meshallum Wanguhu vs. Kamau Kania Civil Appeal No. 101 of 1984 1 KAR 780 [1987] KLR 51; [1986-1989] EA 593, Hancox, JA (as he then was) emphasised on the court’s residual jurisdiction under Section 3A of the Civil Procedure Act, by holding that such residual jurisdiction should only be used, in special circumstances in order to put right that which would otherwise be a clear injustice. In the instant Application, a retiree has been denied his pension benefits for nearly two decades despite multiple judicial pronouncements in his favour.
37. One of the instances in which the court exercises this residual power is in the fulfilment of its obligation to ensure that orders issued are not issued in vain.
38. This was recognised by the Court of Appeal in Nicholas Mahihu vs. Ndima Tea Factory Ltd & Another Civil Application No. Nai. 101 of 2009 where it was held that: -
“Although we have restated the two main principles which this Court considers in this type of Application, the Court has a duty to ensure that its orders are at all times effective.”
39. The present matter discloses exceptional circumstances warranting the Court’s intervention.
40. The Applicant, a retiree who left service in June 2009, has been denied access to his pension benefits for over fifteen years despite a clear judgment of the Retirement Benefits Appeals Tribunal and an interpretative order.
41. The Respondent has persistently refused to comply, engaging instead in prolonged litigation that has never set aside or varied the Tribunal’s findings. This continued refusal amounts to an arbitrary administrative decision that has left the Applicant in financial hardship and distress.
42. In these circumstances, the Court’s inherent jurisdiction under Section 3A of the Civil Procedure Act is properly invoked to prevent injustice.
43. Without prejudice to the foregoing, the Applicant respectfully submits that the RBAT is a quasi-judicial body established under Section 47 of the Retirement Benefits Act.
44. The Tribunal's decisions, once rendered, carry the force of law and are binding upon the parties unless varied, set aside, or stayed by a competent court.
45. While the Act provides a clear mechanism for lodging appeals before the Tribunal, it is notably silent on the procedure for enforcing its decisions.
46. This statutory lacuna mirrors the enforcement dilemma faced under the Work Injury Benefits Act (WIBA), where courts were called upon to bridge the legislative gap and uphold substantive justice in enforcing orders issued by the Director.
47. In this regard, the reasoning of the court in Lagat v Kenya Ordinance Factories Corporation (Miscellaneous Cause E038 of 2023) [2024] KEELRC 1118 (KLR) (25 April 2024) is instructive. The court held:
“...until the Work Injury Benefits Act is reviewed and a provision made on the manner in which the Director’s awards are to be executed, the courts must do substantive justice and give effect to the very clear and unambiguous intentions of the Act by enforcing the decisions of the Director. Both Article 159(2) of the Constitution and section 20(1) of this court’s Act require that the court does substantive justice and acts without undue regard to technicalities…”
48. This court has jurisdiction to enforce the judgment and orders of the RBAT.
49. The Respondent argues that mandamus cannot issue against it as it is a private pension trust. Respectfully, this argument is outdated as it fails to appreciate the evolution of judicial review remedies under the Fair Administrative Action Act, 2015.
50. Section 11(1)(f) of the Fair Administrative Action Act, 2015 provides that;
“11. Orders in proceedings for judicial review
(1) In proceedings for judicial review under section 8(1), the court may grant any order that is just and equitable, including an order–
(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the Applicant has a legally enforceable right.”
51. The Act defines an “administrator” under Section 2 as “a person who takes an administrative action or who makes an administrative decision.” The Respondent, in administering pension benefits, falls squarely within this definition.
52. Its role in determining and paying retirement benefits is an administrative function, and its refusal to comply with the Tribunal’s judgment constitutes administrative action subject to judicial review.
53. Section 2 of the Act further defines “administrative action” to include:
“(a) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or
(b) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates”
54. The Respondent’s refusal to pay the Applicant’s pension benefits is an omission that directly affects the Applicant’s legal rights.
55. It therefore carries a public element and is amenable to judicial review remedies, including mandamus.
56. In Republic v Jomo Kenyatta University of Agriculture and Technology Ex parteElijah Kamau Mwangi [2021] eKLR, the Court cited with approval the decision in Republic v Commissioner of Lands & Another Ex-Parte Kithinji MuruguM'agere, Nairobi High Court Misc. Application No. 395 of 2012, where it was held that Mandamus is designed to enforce the performance of a public duty that is neither optional nor discretionary. Further, the duty enforceable by Mandamus need not necessarily be a statutory one, it may be one that carries a public element, expressed in any form.
57. In Republic v Principal Secretary, Ministry of Internal Security & Another Exparte Schon Noorani [2018] eKLR, where the Court summarised the requirements for the grant of Mandamus as follows:
a) There must be a public legal duty to act;
b) The duty must be owed to the Applicant;
c) There must be a clear right to the performance of that duty, evidenced by: Satisfaction of all condition’s precedent;
d) A prior demand for performance;
e) Either a refusal or unreasonable delay;
f) There must be no other adequate remedy;
g) The order sought must be of practical value or effect;
h) There must be no equitable bar to the relief;
i) On a balance of convenience, the order should be granted
58. The Applicant submits that the requirements have been fully met in that;
a) The Respondent owes a public legal duty to administer and pay pension benefits.
b) That duty is owed directly to the Applicant.
c) The Tribunal’s judgment and interpretative order established the Applicant’s clear right to performance.
d) The Respondent has refused and unreasonably delayed compliance for over fourteen years.
e) No other adequate remedy exists, as repeated litigation has failed to secure compliance. ✓ The order sought will have practical value by ensuring the Applicant’s constitutional right to social security under Article 43(1)(e) is realised.
59. An order of mandamus, as prayed for, is not confined exclusively to government entities but extends to anybody or authority whose administrative action affects the legal rights or interests of any person to whom such action relates.
60. In answering whether failure to seek leave under Order 53 Rule 1 renders the Application incompetent,the Respondent contends that the Applicant's failure to seek leave under Order 53 Rule 1 of the Civil Procedure Rules renders the Application fatally defective. The Applicant respectfully submits that this contention is based on a misconception of the applicable law.
61. The present Application is not anchored on Order 53 of the Civil Procedure Rules but on the Fair Administrative Action Act, 2015, which provides a self-standing statutory framework for judicial review that operates independently of Order 53.
62. Section 7 of the Act expressly grants an aggrieved person the right to apply for review of administrative action, while Section 9(1) provides that such an Application may be made directly to the High Court without unreasonable delay.
63. In Bhojwani & another v Director of Public Prosecutions & another (Judicial Review Miscellaneous Application E114 of 2025) [2025] KEHC 16305 (KLR) (Judicial Review) (13 November 2025) (Ruling) this Honourable Court recognized that;
“It is further important to observe that with the enactment of the Fair Administrative Action (Judicial Review Procedure) Rules, 2024, a new legal regime now exists giving full effect to Article 47 of the Constitution and the Fair Administrative Action Act, 2015. Under this framework, an Applicant alleging that their right to fair administrative action has been violated, denied, or threatened may directly institute judicial review proceedings without the necessity of first seeking leave of the Court. It therefore follows that a party may properly approach this Court under the Fair Administrative Action Act and the 2024 Rules, as promulgated in October 2024.”
64. In Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment), this court was tasked with the responsibility to determine whether there’s need for Parliament to repeal sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules to avoid confusion as to the manner in which judicial review actions should be instituted, the court observed that:
“A perusal of the FAA Act clearly shows that Parliament intended to substitute the judicial review under the common law with statutory judicial review, and this explains why Part III (sections 7 to 11) of the Act is clearly titled “Judicial Review”. One cannot therefore understand why Parliament did not go to the whole hog by repealing sections 8 and 9 of the LR Act. The failure to repeal the impugned provisions of the LR Act has led to the continuing confusion as regards the procedure for institution of judicial review proceedings. It is noted that rules have not been made as provided by section 10(2) and regulations have also not been enacted under section 13 of the FAA Act even though the law is already operational...It is observed that the FAA Act does not make any reference to the requirement for leave before commencement of judicial review proceedings and in fact disdains undue regard to procedural technicalities in judicial review Applications...The FAA Act appears to have created a new legal regime for review of administrative action. This regime is more aligned to articles 23 and 47 of the Constitution and should be the sole foundation of judicial review in this country…
As already stated, all law must conform to the provisions of the Constitution and it therefore follows that the provisions of sections 8 and 9 of the LR Act and order 53 CPR must conform to the Constitution or be construed with such adaptations, alterations and modifications so as to conform with the Constitution...Nevertheless, as I have already stated, sections 8 and 9 of the LR Act and order 53 of the CPR have been rendered otiose and their continued retention in our statute books will only serve to promote the wrong notion that Kenya has a two-tracked system for seeking judicial review against administrative action.”
65. The Applicant therefore humbly submits that the requirement for leave under Order 53 Rule 1 has been rendered otiose by the statutory right to apply for review under Section 7 of the Fair Administrative Action Act.
66. To hold otherwise would elevate technical form over substantive justice, contrary to Article 159(2)(d) of the Constitution.
67. On the issue of limitation of action ,the Respondent argues that enforcement of the 2011 judgment is barred by Section 4(4) of the Limitation of Actions Act, which prescribes a 12-year limitation period for enforcement of judgments.
68. The Applicant respectfully submits that this argument is misconceived and ignores the factual matrix of this case.
69. The Applicant could not institute execution proceedings while the Respondent’s multiple appeals and review Applications seeking to set aside the Tribunal’s orders were pending.
70. The Court of Appeal’s judgment, delivered on 10th May 2019, finally affirmed the Applicant’s entitlement.
71. The Respondent cannot benefit from its own delays. The Respondent has, since 2011, engaged in:
a) Judicial Review Misc. Civil Application No. 403 of 2012 - Application dismissed.
b) Civil Appeal No. 284 of 2013 - Dismissed by the Court of Appeal on 10 May 2019.
c) Judicial Review Application No. E048 of 2022 - Only quashed a subsequent ruling but upheld the Tribunal's core findings.
d) Review Applications filed at the Tribunal on 10 September 2019 and 22 January 2024 - Both dismissed.
72. These proceedings, all initiated by the Respondent, have consumed over 12 years.
73. The Respondent cannot now turn around and argue that the Applicant is time-barred due to delays the Respondent itself occasioned.
74. The Applicant submits that the present Application, filed in 2025, is well within time as the right to enforce crystallised only after the Court of Appeal’s dismissal of the Respondent’s appeal in 2019.
75. The Applicant’s Application is not statute-barred and that the Respondent’s reliance on limitation is both inequitable and legally untenable.
76. The Respondent argues that the Applicant ought to have invoked enforcement mechanisms before the Tribunal under Section 52 of the Retirement Benefits Act.
77. Section 9(4) of the Fair Administrative Action Act, 2015 provides an express exemption from the exhaustion requirement:
"(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on Application by the Applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice."
78. In Republic v Nairobi City County; Ibrahim (Exparte Applicant) (Environment and Land Judicial Review Case 4 of 2023) [2025] KEELC 48 (KLR) (16 January 2025) (Judgment), the court held that:
“Though Section 9, of the Fair Administrative Actions Act requires an Applicant for purposes of judicial review to first exhaust the mechanisms, including internal mechanisms for appeal and review and all remedies available under any written law, Sub-section (4) allows the court in exceptional circumstances and on an Application by the Applicant to exempt a person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice... The Applicant had no other choice but to seek relief from this court. It was in the interest of justice that he be exempted from the obligation to exhaust the statutory remedy of going to the liaison committee first. The Applicant’s case does not therefore violate the doctrine of exhaustion, and this court has the jurisdiction to entertain and determine this matter. The preliminary objection by the Respondent is therefore unmerited and is hereby dismissed.”
79. In the case of Kenya Bureau of Standards and 4 others; Exparte United Millers Limited; Department of Health Services, Nakuru County (interested party), Mativo J (as he then was), stated that,
“What constitutes exceptional circumstances depends on the facts of each case and it is not possible to have a closed list. Article 4 of the Constitution is heavily borrowed from the South African Constitution.
In addition, the FAA Act is heavily borrowed from the South African equivalent legislation, hence, jurisprudence from South African Courts interpreting similar circumstances and provisions are of greater value, relevance and may be useful guidance.”
80. The judge proceeded to cite with approval the decision in the South African case of MV AisMamas Seatrans Maritime – vs- Owner MV Ais Mamas & ano 2002(6) SA at 156H, where the court stated as follows;
i. What is ordinarily contemplated by the words ‘exceptional circumstances’ is something out of the ordinary and of an unusual nature; something which is accepted in the sense that the general rule does not apply to it; something uncommon, rare or different…
ii. To be exceptional the circumstances concerned must arise out of, or be incidental to, the particular case.
iii. Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a Judicial discretion; their existence or otherwise is a matter of fact which the court must decide accordingly.
iv. Depending on the context in which it is used, the word ‘exceptional’ has two shades of meaning; the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different.
v. Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will generally be speaking, best be given to the intention of the legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional. In a nutshell the context is essential in the process of considering what constitutes exceptional circumstances.
81. The present matter discloses exceptional circumstances warranting exemption from the exhaustion requirement in that:
a) The Applicant is an elderly retiree who has been denied his pension for over 15 years, despite having faithfully made monthly pension contributions to the Respondent during the entirety of his tenure;
b) The Respondent has demonstrated a pattern of defiance and non-compliance with Tribunal orders;
c) Multiple appeals and Applications by the Respondent have already delayed justice;
d) Returning to the Tribunal would occasion further delay and injustice;
e) The Tribunal's orders are clear and require no further interpretation, having already been interpreted by the Tribunal;
f) The Respondent's refusal to comply amounts to a violation of the Applicant's constitutional rights under Article 43 on economic and social rights.
82. In these circumstances, the Applicantrespectfully urges this Honourable Court to exercise its discretion under Section 9(4) of the Fair Administrative Action Act and exempt the Applicant from the exhaustion requirement.
83. The Court’s intervention is necessary to ensure that justice is not defeated by technical reliance on procedural bars, and that the Applicant’s rights are protected without further delay.
84. In Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR), the Court held that;
“The situations
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