Brief Background;
1. On or around 8th July 2020 the 1st Interested Parties filed a complaint with the 2nd Interested Party, the Retirement Benefits Authority, under the auspices of section 46 of the Retirement Benefits Act (“the Act”), wherein they alleged that their benefits had been unlawfully computed contrary to the Trust Deed of the Applicant (“the Complaint”).
2. The Applicant responded to the Complaint vide letter dated 31st August 2020 declining liability and by a decision dated 10th February 2021 dismissed the Complaint.
3. Over two (2) years later, the 1st Interested Parties filed a Notice of Motion dated 13th October 2023 (“the Application”) before the Respondent herein seeking leave to appeal out of time the decision of the 2nd Interested Party dated 10th February 2021.
4. In response thereto, the Applicant filed a Notice of Preliminary Objection dated 25th October 2023 on 26th October 2023 pursuant to which it contended that the Respondent lacked the requisite jurisdiction to grant the prayer sought, namely enlarging the time for filing the appeal.
5. By a ruling dated 4th April 2024 (“the Ruling”), the Respondent dismissed the Applicant’s Preliminary Objection and ordered the Applicant to file a response to the 1st Interested Parties’ Application within seven (7) days from the date of the Ruling and set the matter down for Mention to confirm compliance with its directions on 9th May 2024.
6. The application that comes up for ruling is the one dated the 10th June 2024 wherein the applicant seeks the following orders, that; –
i. This Honourable Court be pleased to grant an order of Certiorari to remove into this Honourable Court for the purposes of quashing the Respondent’s Ruling and Orders dated 4th April 2024 in RBAT Miscellaneous Application No. 10 of 2023 - David Matika James & 589 Others v The Retirement Benefits Authority and The Board of Trustees, Telposta Pension Scheme and Provident Fund.
ii. This Honourable Court be pleased to grant an order of Prohibition to prohibit the Respondent from entertaining any further proceedings before it in respect of RBAT Miscellaneous Application No. 10 of 2023 - David Matika James & 589 Others v The Retirement Benefits Authority and The Board of Trustees, Telposta Pension Scheme and Provident Fund.
iii. The costs of this Application be provided for.
The Applicant’s case;
7. The applicant’s case is supported by the affidavit of Peter K. Rotich the Administrator/Trust Secretary of the Board of Telposta Pension Scheme and Provident Fund (hereinafter “the Applicant”).
8. On or around 7th July 2020 the 1st Interested Parties filed a complaint with the 2nd Interested Party, the Retirement Benefits Authority, under the auspices of section 46 of the Retirement Benefits Act (“the Act”), wherein they alleged that their benefits had been unlawfully computed contrary to the Trust Deed of the Applicant.
9. The Applicant responded to the Complaint vide a letter dated 31st August 2020 declining liability and by a decision dated 10th February 2021, the Retirement Benefits Authority (“the Authority") dismissed the Complaint.
10. It is concerned that over two (2) years later, the 1st Interested Parties filed a Notice of Motion dated 13th October 2023 (“the Application”) before the Respondent seeking leave to appeal out of time the decision of the 2nd Interested Party dated 10th February 2021.
11. The Applicant filed a Notice of Preliminary Objection dated 25th October 2023 on 26th October, 2023 pursuant to which it contended that the Respondent lacked the requisite jurisdiction to grant the prayer sought, namely enlarging the time for filing the appeal.
12. By a ruling dated 4th April 2024 the Respondent dismissed the Applicant’s Preliminary Objection and ordered the Applicant to file a response to the 1st Interested Parties’ Application within seven (7) days from the date of the Ruling.
13. It is the Applicants case that:
a) The Order directing that the 1st Interested Parties’ Application be heard on its merit is illegal as the Respondent has no authority under the Act and the Retirement Benefits (Tribunal) Rules, 2000 (the “Rules”) to enlarge time for filing an appeal under sections 48 and 49 of the Act.
b) By arrogating to itself the jurisdiction to enlarge time for filing Appeals preferred to itself and giving directions for the determination of the Application on its merits, the Respondent acted in excess of the jurisdiction and powers conferred upon it under section 48 of the Act.
c) Further, section 49 of the Act expressly provides for the powers of the Respondent, which does not include the power to extend the time for filing an appeal against a decision of the 2nd Interested Party or its Chief Executive Officer specified under section 48(1) of the Act.
d) The decision of the Respondent was informed by a material error of law, in that the Respondent misconstrued binding decisions of the superior courts to reduce the question regarding its power to extend time as a mere matter of procedure of appeal.
e) There being no provision in the Rules as to the extension of time within which to lodge an appeal, the Respondent illegally expanded the scope of its jurisdiction limited by time under section 48(1) of the Act in clear breach of the established jurisprudence relating to the lapse of limitation period on jurisdiction.
f) In particular, the Respondent without any cogent reason disregarded binding decisions of the superior courts in which limitation was found to be a matter of law and not procedure, the effect of which is to extinguish a right such that the right can no longer be the subject of a claim.
g) The Respondent also failed to take into account the binding pronouncements of the superior courts that bore precise relevance to the issues before and a result, arrived at an erroneous finding that it was vested with the power to enlarge time for filing appeals preferred to it.
h) The Respondent also misconstrued decisions of the Supreme Court leading to an irrational finding that admitting the appeal out of time was in keeping with the purposive interpretation of the Act and the Rules aimed at meeting the ends of justice.
i) In so doing, the Respondent arrogated to itself jurisdiction on account of what it called a purposive interpretation in direct conflict with binding decisions of the Supreme Court which decided that jurisdiction must be expressly conferred by the Constitution or statute.
14. It is its case that the impugned Orders of 4th April 2024 is ultra vires, illegal, procedurally improper, irrational, unreasonable, and most importantly grossly prejudicial to the rights of the Applicant herein.
The applicant’s submissions;
15. The powers of the Respondent are provided for under sections 48 and 49 respectively of the Retirement Benefits Act (“the Act”). In particular, section 48 of the Act sets out in clear terms the threshold a matter must satisfy to be legally entertained by the Respondent, in that -
a. The subject must be exclusively governed by the Act, or any regulations made pursuant to the Act;
b. The appeal must be with respect to a decision of either the 2nd Interested Party or its Chief Executive Officer;
c. The appeal to the Respondent must be made within thirty (30) days of the receipt of the decision; and
d. The appeal must be made in compliance with the procedure set pursuant to the Act.
16. It is submitted that it is not in dispute that the time within which the 1st Interested Parties were required to file their appeal against the said decision had lapsed hence their Application to extend it.
17. Reliance is placed in the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR thus –
“(68) A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. ……….. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
18. It is its case that nowhere in the Act is the jurisdiction of the Respondent prescribed in express terms to include the authority to extend time for filing an appeal before it upon lapse of the thirty-day period specified under Section 48(1) which stipulates that –
“(1) Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within thirty days of the receipt of the decision.”
19. It submits that the lapse of time provided in law for pursuing judicial intervention renders a right in question incapable of attracting an order of Court as held by the High Court in Moses Ouma Odero v G4s Security Services Kenya Limited [2016] eKLR Cause No. 60 of 2016 in the following terms -:
“Limitation is a matter of law and not procedure. The effect of limitation is to extinguish a right such that the right can no longer be the subject of a claim.”
20. Reliance is also placed in the case of Gathoni v Kenya Co-operative Creameries Ltd [1982] eKLR, where the Court of Appeal observed:
“The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.”
21. In the Court of Appeal in Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR stated thus -:
“It is also trite law that the period of limitation cannot be extended.”
22. It further submits that the Respondent’s finding to have jurisdiction to entertain the 1st Interested Party’s Application on its merits and directing the parties to file their respective relevant documents with respect to the Application flies in the face of the limits of its jurisdiction as set out in the Act hence ultra vires.
23. It is submitted that the Respondent disregarded the Court of Appeal’s holding in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (1989) KLR, where it was stated as follows:
“Jurisdiction is everything. Without it, a court has no power to take one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.
24. It is further submitted that the decision of the Respondent was informed by a material error of law, in that the Respondent misconstrued the binding decision of Court of Appeal in Staff Retirement (DC) Scheme 2006 & another v Ann Wangui Ngugi & 524 others (2018) eKLR to reduce the question regarding its power to extend time as a mere matter of procedure of appeal contrary to the finding by the Court of Appeal in Pauline Wanjiru Thuo vs. David Mutegi Njuru Civil Appeal No. 278 of 1998 as relied upon by Odunga J as he then was in Republic v Kiambu Land Dispute Tribunal & 2 others Ex parte Wambui Chege Macharia & 2 others [2016] eKLR as follows-:
“11. In my view, the Respondent is raising the issue of limitation. That limitation goes to the jurisdiction is a position adopted in Pauline Wanjiru Thuo vs. David Mutegi Njuru Civil Appeal No. 278 of 1998 where it was held by the Court of Appeal that a preliminary objection based on limitation can be taken for the first time on appeal because it goes to jurisdiction.”
25. It invites the court to be guided by the decision of the Court of Appeal in Nyutu Agrovet Limited v Airtel Networks Limited [2015] eKLR the Court in the Ann Wangui Ngugi & 524 Others Case (Supra) where it was stated thus –
“It is submitted, relying on Section s.49(1) and 52 of RBA that the Tribunal is a subordinate court and that where there is no provision in the RBA relating to appeals, the provisions of the Civil Procedure Act apply. That contention is patently erroneous. The Tribunal is a statutory body established by the Minister under the authority of RBA. The powers of the Tribunal referred to in s. 49(1) are limited to summoning witness, taking evidence and to the production of documents. Furthermore, section 52 of RBA does not apply as the Chief Justice has made the Retirement Benefits (Tribunal) Rules 2000 which regulate appeals to the Tribunal. According to Rule 12 of those rules, the Civil Procedure Rules are only applicable, if at all, where the rules have no provision to govern the procedure of appeals. A similar contention was rejected by this Court in Nyutu Agrovet Limited. We respectively adopt the reasoning of Mwera and M’Inoti, JJ.A in Nyutu Agrovet Limited in this appeal. By section 3 of the Civil Procedure Act, the operation of the RBA, the appeal rules made thereunder, and the provisions of the Employment & Labour Relations Court Act and the rules made thereunder governing appeals are not limited or affected by the Civil Procedure Act.”
26. There being no provision in the Rules as to the extension of time within which to lodge an appeal, the Respondent it is submitted illegally expanded the scope of its jurisdiction limited by time under section 48(1) of the Act in clear breach of the established jurisprudence relating to the lapse of limitation period on jurisdiction, when it purported to prefer a purposive interpretation of the Act and the Rules pursuant to the Supreme Court decision in Albert Chaurembo Mumba & 7 Others, Petition No. 3 of 2016 in a bid to breathe life to Articles 10 and 159(1) of the Constitution.
27. Further, the Respondent it is argued misconstrued the Supreme Court’s decision in Albert Chaurembo Mumba & 7 Others (Supra), leading to an irrational finding that admitting the appeal out of time aligned with the purposive interpretation of the Act and the Rules aimed at meeting the ends of justice. In so doing, the Respondent arrogated to itself jurisdiction on account of what it called a purposive interpretation in direct conflict with the binding Supreme Court decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others (supra) where it was decided that jurisdiction must be expressly conferred by the Constitution or statute, neither of which vests the Respondent with the said jurisdiction.
28. Most notably, the Respondent is said to have prematurely ventured on the dicey terrain of judicial craft in determining a rather straightforward question of its jurisdiction as settled by the High Court in Republic v Retirement Benefits Appeals Tribunal & 2 others Ex-Parte Kenya Airports Authority Staff Superannuation Scheme (Suing Thro’ Its Trustees Julius F. O. Onyango) & 22 others [2013] eKLR in effect arriving at a misguided finding that it was vested with the power to enlarge time for filing appeals preferred to it. The Court in the said case held thus -:
“40. It follows that where there is a special jurisdiction or power conferred, or any form or procedure prescribed, by or under any other law, the provisions of the Civil Procedure Act are inapplicable. Since Rule 12 of the Rules does not import into the Act the provisions of the Civil Procedure Act including section 95 aforesaid, that section is inapplicable to proceedings under the Act.”
29. The Applicant submits that it is clear from the foregoing that the Respondent lacks jurisdiction to enlarge time for filing an appeal or grant leave to appeal out of time a decision of the 2nd Interested Party or its CEO. In support of this position is the holding of the Court in Republic v Retirement Benefits Appeals Tribunal & 2 others Ex-Parte Kenya Airports Authority Staff Superannuation Scheme (Supra) while quashing the decision by the Retirement Benefits Appeals Tribunal to enlarge time for filing an appeal before it in the following terms: –
“46. ………. I have already held that the Tribunal had no powers both under the Civil Procedure Act and Civil Procedure Rules to extend time for filing the appeal. It has not been alleged that apart from those provisions there is an express provision under the Act which permits the Tribunal to extend time.
47. Therefore the inescapable conclusion which this Court arrives at is that the Tribunal had no jurisdiction to enlarge the time for filing the appeal against the decision of the Chief Executive Officer, errors by the interested parties in filing a suit instead of lodging an appeal notwithstanding, even if there was a consent entered into between the interested parties and the 3rdRespondent, such consent cannot operate against the law.”
The Respondent’s case;
30. The procedure to be followed by the Respondents herein in determining matters before it is the Retirements Benefits Act No. 3 of 1997 and the Retirement Benefits Tribunal Rules, 2000, and where necessary Civil Procedure Act and Civil Procedure Rules 2010.
31. Rule 12 of the Retirement Benefits (Tribunal) Rules 2000 allows the Respondent herein to adopt and fall back to the Civil Procedure Act and Civil Procedure Rules whenever necessary. The said rule provides as follows:
“In matters of procedure not governed by these Rules or the Act, the Tribunal may adopt the Civil Procedure Rules made under the Civil Procedure Act where applicable.”
32. The Respondent acted within its jurisdiction and powers conferred upon section 48 of the Retirement Benefits Act.
33. It is its case that the ruling dated 4th April 2024 is not ultra vires, illegal, procedurally improper, irrational, unreasonable, and grossly prejudicial.
34. Reliance is placed in the case of Pastoli v Kabale District Local Government Canal & Others (2008) 2EA where the learned Judge stated;
“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.
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 provision 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.
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 to act 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 legislature instrument by which such authority exercises jurisdiction to make a decision.”
35. In determining whether or not the Respondent acted outside its powers, regard is made to the description of illegality by Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985] AC 374 at 410 as a failure by a public body to understand correctly the law that regulates its decision-making power, or a failure to give effect to that law. In addition, in Anisminic vs Foreign Compensation Commission (1969) 1 All ER 208 at 233, Lord Pearce held as follows on when a public body may lack jurisdiction:
“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step out of its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the enquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.
36. Rule 12 of the Retirement Benefits (Tribunal) Rules 2000 provides as follows:
“In matters of procedure not governed by these Rules or the Act, the Tribunal may adopt the Civil Procedure Rules made under the Civil Procedure Act where applicable.”
37. It is the Respondent’s Submissions that it acted within its Jurisdiction and powers conferred upon section 48 of the Retirement Benefits Act by finding that it had power to hear and determine the Application dated 13th October 2023 seeking to file an appeal out of time.
The 1st Interested Parties case;
38. David Matika James, one of the members of the 1st Interested Party argues that the 1st Interested Party comprises former employees of Telkom Kenya, who, by virtue of said employment, were members of the pension schemes operated by the Applicant.
39. It is their case that the 1st Interested Party as members of the Ex parte Applicant’s pension scheme were entitled to their pension benefits as per the Trust Deed and Rules.
40. It is further their case that, upon leaving service, their pension benefits were not calculated in accordance with the Scheme Rules, resulting in the lodging of a complaint before the Retirement Benefits Authority, herein, on the grounds that the retirement benefits had been unlawfully computed contrary to the Trust Deed.
41. Upon hearing the matter, it issued a decision on 10th February 2021 that the 1st Interested Party deemed unsatisfactory.
42. That on 18th October 2023, the 1st Interested Party filed an Application dated 13th October 2023 seeking leave to appeal out of time the decision of the 2nd Interested Party.
43. That on 18th October 2023, the Respondent herein issued orders that;
a) The Application be and is hereby certified as urgent.
b) The Appellants are hereby directed to serve the Respondents with the Application and submissions by end of day on 19th October 2023.
c) The Respondents to file a response together with submissions within three days after service.
d) The Application dated 13th October 2023 to be heard inter-partes on 26th October 2023.
44. The Applicant filed a Notice of Preliminary Objection dated 25th October 2023 challenging the Respondent’s jurisdiction to grant leave to appeal out of time and/or to enlarge the time for appealing a decision of the Retirement Benefits Authority or the Chief Executive of the Retirement Benefits Authority.
45. The 2nd Interested Party also filed a Preliminary Objection dated 28th January 2024 contending inter alia that; the Respondent herein lacks the jurisdiction to hear and determine the 1st Interested Party’s Application dated 13th October 2023.
46. On 4th April 2024 the Respondent herein gave the following Orders;
a) The 1st Respondent’s (the 2nd Interested Party herein) Preliminary Objection dated 28th January 2024 be and is hereby dismissed.
b) The 2nd Respondent’s (the Exparte Applicant herein) Preliminary Objection dated 25th October 2023 be and is hereby dismissed.
c) The Appellant’s/Applicant’s (the 1st Interested Party herein) Application dated 13th October 2023 be set down for hearing at the earliest.
d) There shall be no order as to cost.
47. The Ruling delivered on 4th April 2024 by the Respondent herein now forms the basis of the Ex parte Applicant’s Applications dated 4th June 2024 and 10th June 2024 seeking Orders of Certiorari and Prohibition.
48. It is their case that the Ruling rendered by the Respondents on 4th April 2024 fell within the jurisdiction of the 1st Respondent.
49. It is argued that the 1st Interested Party’s members are aged pensioners who are suffering an injustice that is being extended by the delay of the Applicants not adhering to the Respondent’s Ruling dated 4th April 2024.
50. It is their case that Article 57 of the Constitution of Kenya 2020 protects the 1st Interested Party’s rights as older of society with respect to pursue their personal development and to live in dignity and respect.
51. The Respondent is created under Article 169 of the Constitution of Kenya 2010, and this Honourable Court has supervisory powers over the said Tribunal exercising dispute resolutions arising out of employment contracts.
52. They argue that the Respondent correctly interpreted the law by finding that it had the requisite jurisdiction to grant leave to file an appeal out of time and/or enlarge the time for filing an appeal Under Section 49 of the Retirement Benefits Act.
53. They further argue that The Respondent correctly interpreted the law by finding that the Civil Procedure Rules are applicable in matters of procedure not governed by the Rules or the Act by virtue of Rule 12 of the Retirement Benefit (Tribunal) Rules, 2000.
54. Rule 12 of the Retirement Benefit (Tribunal) Rules, 2000 clearly states that in matters of procedure not governed by these Rules or the Act, the Tribunal may adopt the Civil Procedure Rules made under the Civil Procedure Act (Cap 21) where applicable.
55. It is their case that The Retirement Benefit (Tribunal) Rules, 2000 is silent on the procedure to be followed when appealing out of time as such reference must be made to the Civil Procedure Rules as stipulated under Rule 12 of the Retirement Benefit (Tribunal) Rules, 2000.
56. They argue that the Respondent possesses the necessary jurisdiction to grant leave to appeal out of time or to extend the time for filing an appeal. In support of the 1st Interested Parties assertions, an examination of the Retirement Benefits Appeals Tribunal’s Jurisdiction as espoused by the Constitution of Kenya 2010, relevant statutes and legal precedent is pertinent.
57. They submit that Article 159 (1) of the Constitution states that judicial authority is vested in, and exercised by, courts and tribunals established by or under the Constitution. Article 169 (1) further defines subordinate courts to include local tribunals established by an Act of Parliament. They surmise that tribunals are classified as subordinate courts.
58. Reliance is placed on the case of Okoiti vs. Judicial Service Commission & 2 others; Katiba Institute (Interested Party) (Petition 197 of 2018) [2021] KEHC 461 (KLR) (Constitutional and Human Rights) (11 March 2021) where the Court in exhaustively discussing tribunals as subordinate courts held that local tribunals created under Article 169 (1) (d) of the Constitution are subordinate courts in Kenya.
59. They place further reliance on the case of The Trustees, Telposta Pension Scheme vs. Mackenzie M. Mogere & Another [2013] eKLR where the Court in discussing the appellate jurisdiction of the Retirement Benefits Appeals Tribunal defined the Retirement Benefits Appeals Tribunal as a local tribunal;
“I have carefully considered the above facts and the situation of this law. In my understanding and view, the Retirement Benefits Appeals Tribunal is a local tribunal whose purpose, functions and powers are expressly provided under sections 49 - 51 of the Act. Examination of those powers shows that the tribunal, like many similar tribunals established under Acts of Parliament, has special powers to hear and determine disputes filed by certain persons or institutions forming the membership of the Retirement Benefits Scheme.”
60. It is their case that the Judicature Act is defined as an Act of Parliament to make provisions concerning the jurisdiction of the High Court, the Court of Appeal and Subordinate Courts, and to make additional provisions concerning the High Court, the Court of Appeal and subordinate courts and the judges and officers of courts.
61. It is urged that Section 3 of the Judicature Act on the mode of exercise of jurisdiction provides as follows;
“The jurisdiction of the High Court, the Court of Appeal and all subordinate courts shall be exercised in conformity with—
a) The Constitution;
b) Subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;
c) Subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date: Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”
62. According to them, Section 10 of the Judicature Act on Rules provides that the Chief Justice may make rules of court for regulating the practice and procedure of the High Court and subordinate courts.
63. They state that The Retirement Benefits Appeals Tribunal is established under section 47 of the Retirement Benefits Act and that Section 46 provides that any member of a scheme who is dissatisfied with a decision of the manager, admini
[...truncated]
1. On or around 8th July 2020 the 1st Interested Parties filed a complaint with the 2nd Interested Party, the Retirement Benefits Authority, under the auspices of section 46 of the Retirement Benefits Act (“the Act”), wherein they alleged that their benefits had been unlawfully computed contrary to the Trust Deed of the Applicant (“the Complaint”).
2. The Applicant responded to the Complaint vide letter dated 31st August 2020 declining liability and by a decision dated 10th February 2021 dismissed the Complaint.
3. Over two (2) years later, the 1st Interested Parties filed a Notice of Motion dated 13th October 2023 (“the Application”) before the Respondent herein seeking leave to appeal out of time the decision of the 2nd Interested Party dated 10th February 2021.
4. In response thereto, the Applicant filed a Notice of Preliminary Objection dated 25th October 2023 on 26th October 2023 pursuant to which it contended that the Respondent lacked the requisite jurisdiction to grant the prayer sought, namely enlarging the time for filing the appeal.
5. By a ruling dated 4th April 2024 (“the Ruling”), the Respondent dismissed the Applicant’s Preliminary Objection and ordered the Applicant to file a response to the 1st Interested Parties’ Application within seven (7) days from the date of the Ruling and set the matter down for Mention to confirm compliance with its directions on 9th May 2024.
6. The application that comes up for ruling is the one dated the 10th June 2024 wherein the applicant seeks the following orders, that; –
i. This Honourable Court be pleased to grant an order of Certiorari to remove into this Honourable Court for the purposes of quashing the Respondent’s Ruling and Orders dated 4th April 2024 in RBAT Miscellaneous Application No. 10 of 2023 - David Matika James & 589 Others v The Retirement Benefits Authority and The Board of Trustees, Telposta Pension Scheme and Provident Fund.
ii. This Honourable Court be pleased to grant an order of Prohibition to prohibit the Respondent from entertaining any further proceedings before it in respect of RBAT Miscellaneous Application No. 10 of 2023 - David Matika James & 589 Others v The Retirement Benefits Authority and The Board of Trustees, Telposta Pension Scheme and Provident Fund.
iii. The costs of this Application be provided for.
The Applicant’s case;
7. The applicant’s case is supported by the affidavit of Peter K. Rotich the Administrator/Trust Secretary of the Board of Telposta Pension Scheme and Provident Fund (hereinafter “the Applicant”).
8. On or around 7th July 2020 the 1st Interested Parties filed a complaint with the 2nd Interested Party, the Retirement Benefits Authority, under the auspices of section 46 of the Retirement Benefits Act (“the Act”), wherein they alleged that their benefits had been unlawfully computed contrary to the Trust Deed of the Applicant.
9. The Applicant responded to the Complaint vide a letter dated 31st August 2020 declining liability and by a decision dated 10th February 2021, the Retirement Benefits Authority (“the Authority") dismissed the Complaint.
10. It is concerned that over two (2) years later, the 1st Interested Parties filed a Notice of Motion dated 13th October 2023 (“the Application”) before the Respondent seeking leave to appeal out of time the decision of the 2nd Interested Party dated 10th February 2021.
11. The Applicant filed a Notice of Preliminary Objection dated 25th October 2023 on 26th October, 2023 pursuant to which it contended that the Respondent lacked the requisite jurisdiction to grant the prayer sought, namely enlarging the time for filing the appeal.
12. By a ruling dated 4th April 2024 the Respondent dismissed the Applicant’s Preliminary Objection and ordered the Applicant to file a response to the 1st Interested Parties’ Application within seven (7) days from the date of the Ruling.
13. It is the Applicants case that:
a) The Order directing that the 1st Interested Parties’ Application be heard on its merit is illegal as the Respondent has no authority under the Act and the Retirement Benefits (Tribunal) Rules, 2000 (the “Rules”) to enlarge time for filing an appeal under sections 48 and 49 of the Act.
b) By arrogating to itself the jurisdiction to enlarge time for filing Appeals preferred to itself and giving directions for the determination of the Application on its merits, the Respondent acted in excess of the jurisdiction and powers conferred upon it under section 48 of the Act.
c) Further, section 49 of the Act expressly provides for the powers of the Respondent, which does not include the power to extend the time for filing an appeal against a decision of the 2nd Interested Party or its Chief Executive Officer specified under section 48(1) of the Act.
d) The decision of the Respondent was informed by a material error of law, in that the Respondent misconstrued binding decisions of the superior courts to reduce the question regarding its power to extend time as a mere matter of procedure of appeal.
e) There being no provision in the Rules as to the extension of time within which to lodge an appeal, the Respondent illegally expanded the scope of its jurisdiction limited by time under section 48(1) of the Act in clear breach of the established jurisprudence relating to the lapse of limitation period on jurisdiction.
f) In particular, the Respondent without any cogent reason disregarded binding decisions of the superior courts in which limitation was found to be a matter of law and not procedure, the effect of which is to extinguish a right such that the right can no longer be the subject of a claim.
g) The Respondent also failed to take into account the binding pronouncements of the superior courts that bore precise relevance to the issues before and a result, arrived at an erroneous finding that it was vested with the power to enlarge time for filing appeals preferred to it.
h) The Respondent also misconstrued decisions of the Supreme Court leading to an irrational finding that admitting the appeal out of time was in keeping with the purposive interpretation of the Act and the Rules aimed at meeting the ends of justice.
i) In so doing, the Respondent arrogated to itself jurisdiction on account of what it called a purposive interpretation in direct conflict with binding decisions of the Supreme Court which decided that jurisdiction must be expressly conferred by the Constitution or statute.
14. It is its case that the impugned Orders of 4th April 2024 is ultra vires, illegal, procedurally improper, irrational, unreasonable, and most importantly grossly prejudicial to the rights of the Applicant herein.
The applicant’s submissions;
15. The powers of the Respondent are provided for under sections 48 and 49 respectively of the Retirement Benefits Act (“the Act”). In particular, section 48 of the Act sets out in clear terms the threshold a matter must satisfy to be legally entertained by the Respondent, in that -
a. The subject must be exclusively governed by the Act, or any regulations made pursuant to the Act;
b. The appeal must be with respect to a decision of either the 2nd Interested Party or its Chief Executive Officer;
c. The appeal to the Respondent must be made within thirty (30) days of the receipt of the decision; and
d. The appeal must be made in compliance with the procedure set pursuant to the Act.
16. It is submitted that it is not in dispute that the time within which the 1st Interested Parties were required to file their appeal against the said decision had lapsed hence their Application to extend it.
17. Reliance is placed in the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR thus –
“(68) A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. ……….. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
18. It is its case that nowhere in the Act is the jurisdiction of the Respondent prescribed in express terms to include the authority to extend time for filing an appeal before it upon lapse of the thirty-day period specified under Section 48(1) which stipulates that –
“(1) Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within thirty days of the receipt of the decision.”
19. It submits that the lapse of time provided in law for pursuing judicial intervention renders a right in question incapable of attracting an order of Court as held by the High Court in Moses Ouma Odero v G4s Security Services Kenya Limited [2016] eKLR Cause No. 60 of 2016 in the following terms -:
“Limitation is a matter of law and not procedure. The effect of limitation is to extinguish a right such that the right can no longer be the subject of a claim.”
20. Reliance is also placed in the case of Gathoni v Kenya Co-operative Creameries Ltd [1982] eKLR, where the Court of Appeal observed:
“The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.”
21. In the Court of Appeal in Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR stated thus -:
“It is also trite law that the period of limitation cannot be extended.”
22. It further submits that the Respondent’s finding to have jurisdiction to entertain the 1st Interested Party’s Application on its merits and directing the parties to file their respective relevant documents with respect to the Application flies in the face of the limits of its jurisdiction as set out in the Act hence ultra vires.
23. It is submitted that the Respondent disregarded the Court of Appeal’s holding in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited (1989) KLR, where it was stated as follows:
“Jurisdiction is everything. Without it, a court has no power to take one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.
24. It is further submitted that the decision of the Respondent was informed by a material error of law, in that the Respondent misconstrued the binding decision of Court of Appeal in Staff Retirement (DC) Scheme 2006 & another v Ann Wangui Ngugi & 524 others (2018) eKLR to reduce the question regarding its power to extend time as a mere matter of procedure of appeal contrary to the finding by the Court of Appeal in Pauline Wanjiru Thuo vs. David Mutegi Njuru Civil Appeal No. 278 of 1998 as relied upon by Odunga J as he then was in Republic v Kiambu Land Dispute Tribunal & 2 others Ex parte Wambui Chege Macharia & 2 others [2016] eKLR as follows-:
“11. In my view, the Respondent is raising the issue of limitation. That limitation goes to the jurisdiction is a position adopted in Pauline Wanjiru Thuo vs. David Mutegi Njuru Civil Appeal No. 278 of 1998 where it was held by the Court of Appeal that a preliminary objection based on limitation can be taken for the first time on appeal because it goes to jurisdiction.”
25. It invites the court to be guided by the decision of the Court of Appeal in Nyutu Agrovet Limited v Airtel Networks Limited [2015] eKLR the Court in the Ann Wangui Ngugi & 524 Others Case (Supra) where it was stated thus –
“It is submitted, relying on Section s.49(1) and 52 of RBA that the Tribunal is a subordinate court and that where there is no provision in the RBA relating to appeals, the provisions of the Civil Procedure Act apply. That contention is patently erroneous. The Tribunal is a statutory body established by the Minister under the authority of RBA. The powers of the Tribunal referred to in s. 49(1) are limited to summoning witness, taking evidence and to the production of documents. Furthermore, section 52 of RBA does not apply as the Chief Justice has made the Retirement Benefits (Tribunal) Rules 2000 which regulate appeals to the Tribunal. According to Rule 12 of those rules, the Civil Procedure Rules are only applicable, if at all, where the rules have no provision to govern the procedure of appeals. A similar contention was rejected by this Court in Nyutu Agrovet Limited. We respectively adopt the reasoning of Mwera and M’Inoti, JJ.A in Nyutu Agrovet Limited in this appeal. By section 3 of the Civil Procedure Act, the operation of the RBA, the appeal rules made thereunder, and the provisions of the Employment & Labour Relations Court Act and the rules made thereunder governing appeals are not limited or affected by the Civil Procedure Act.”
26. There being no provision in the Rules as to the extension of time within which to lodge an appeal, the Respondent it is submitted illegally expanded the scope of its jurisdiction limited by time under section 48(1) of the Act in clear breach of the established jurisprudence relating to the lapse of limitation period on jurisdiction, when it purported to prefer a purposive interpretation of the Act and the Rules pursuant to the Supreme Court decision in Albert Chaurembo Mumba & 7 Others, Petition No. 3 of 2016 in a bid to breathe life to Articles 10 and 159(1) of the Constitution.
27. Further, the Respondent it is argued misconstrued the Supreme Court’s decision in Albert Chaurembo Mumba & 7 Others (Supra), leading to an irrational finding that admitting the appeal out of time aligned with the purposive interpretation of the Act and the Rules aimed at meeting the ends of justice. In so doing, the Respondent arrogated to itself jurisdiction on account of what it called a purposive interpretation in direct conflict with the binding Supreme Court decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others (supra) where it was decided that jurisdiction must be expressly conferred by the Constitution or statute, neither of which vests the Respondent with the said jurisdiction.
28. Most notably, the Respondent is said to have prematurely ventured on the dicey terrain of judicial craft in determining a rather straightforward question of its jurisdiction as settled by the High Court in Republic v Retirement Benefits Appeals Tribunal & 2 others Ex-Parte Kenya Airports Authority Staff Superannuation Scheme (Suing Thro’ Its Trustees Julius F. O. Onyango) & 22 others [2013] eKLR in effect arriving at a misguided finding that it was vested with the power to enlarge time for filing appeals preferred to it. The Court in the said case held thus -:
“40. It follows that where there is a special jurisdiction or power conferred, or any form or procedure prescribed, by or under any other law, the provisions of the Civil Procedure Act are inapplicable. Since Rule 12 of the Rules does not import into the Act the provisions of the Civil Procedure Act including section 95 aforesaid, that section is inapplicable to proceedings under the Act.”
29. The Applicant submits that it is clear from the foregoing that the Respondent lacks jurisdiction to enlarge time for filing an appeal or grant leave to appeal out of time a decision of the 2nd Interested Party or its CEO. In support of this position is the holding of the Court in Republic v Retirement Benefits Appeals Tribunal & 2 others Ex-Parte Kenya Airports Authority Staff Superannuation Scheme (Supra) while quashing the decision by the Retirement Benefits Appeals Tribunal to enlarge time for filing an appeal before it in the following terms: –
“46. ………. I have already held that the Tribunal had no powers both under the Civil Procedure Act and Civil Procedure Rules to extend time for filing the appeal. It has not been alleged that apart from those provisions there is an express provision under the Act which permits the Tribunal to extend time.
47. Therefore the inescapable conclusion which this Court arrives at is that the Tribunal had no jurisdiction to enlarge the time for filing the appeal against the decision of the Chief Executive Officer, errors by the interested parties in filing a suit instead of lodging an appeal notwithstanding, even if there was a consent entered into between the interested parties and the 3rdRespondent, such consent cannot operate against the law.”
The Respondent’s case;
30. The procedure to be followed by the Respondents herein in determining matters before it is the Retirements Benefits Act No. 3 of 1997 and the Retirement Benefits Tribunal Rules, 2000, and where necessary Civil Procedure Act and Civil Procedure Rules 2010.
31. Rule 12 of the Retirement Benefits (Tribunal) Rules 2000 allows the Respondent herein to adopt and fall back to the Civil Procedure Act and Civil Procedure Rules whenever necessary. The said rule provides as follows:
“In matters of procedure not governed by these Rules or the Act, the Tribunal may adopt the Civil Procedure Rules made under the Civil Procedure Act where applicable.”
32. The Respondent acted within its jurisdiction and powers conferred upon section 48 of the Retirement Benefits Act.
33. It is its case that the ruling dated 4th April 2024 is not ultra vires, illegal, procedurally improper, irrational, unreasonable, and grossly prejudicial.
34. Reliance is placed in the case of Pastoli v Kabale District Local Government Canal & Others (2008) 2EA where the learned Judge stated;
“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.
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 provision 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.
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 to act 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 legislature instrument by which such authority exercises jurisdiction to make a decision.”
35. In determining whether or not the Respondent acted outside its powers, regard is made to the description of illegality by Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985] AC 374 at 410 as a failure by a public body to understand correctly the law that regulates its decision-making power, or a failure to give effect to that law. In addition, in Anisminic vs Foreign Compensation Commission (1969) 1 All ER 208 at 233, Lord Pearce held as follows on when a public body may lack jurisdiction:
“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step out of its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the enquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.
36. Rule 12 of the Retirement Benefits (Tribunal) Rules 2000 provides as follows:
“In matters of procedure not governed by these Rules or the Act, the Tribunal may adopt the Civil Procedure Rules made under the Civil Procedure Act where applicable.”
37. It is the Respondent’s Submissions that it acted within its Jurisdiction and powers conferred upon section 48 of the Retirement Benefits Act by finding that it had power to hear and determine the Application dated 13th October 2023 seeking to file an appeal out of time.
The 1st Interested Parties case;
38. David Matika James, one of the members of the 1st Interested Party argues that the 1st Interested Party comprises former employees of Telkom Kenya, who, by virtue of said employment, were members of the pension schemes operated by the Applicant.
39. It is their case that the 1st Interested Party as members of the Ex parte Applicant’s pension scheme were entitled to their pension benefits as per the Trust Deed and Rules.
40. It is further their case that, upon leaving service, their pension benefits were not calculated in accordance with the Scheme Rules, resulting in the lodging of a complaint before the Retirement Benefits Authority, herein, on the grounds that the retirement benefits had been unlawfully computed contrary to the Trust Deed.
41. Upon hearing the matter, it issued a decision on 10th February 2021 that the 1st Interested Party deemed unsatisfactory.
42. That on 18th October 2023, the 1st Interested Party filed an Application dated 13th October 2023 seeking leave to appeal out of time the decision of the 2nd Interested Party.
43. That on 18th October 2023, the Respondent herein issued orders that;
a) The Application be and is hereby certified as urgent.
b) The Appellants are hereby directed to serve the Respondents with the Application and submissions by end of day on 19th October 2023.
c) The Respondents to file a response together with submissions within three days after service.
d) The Application dated 13th October 2023 to be heard inter-partes on 26th October 2023.
44. The Applicant filed a Notice of Preliminary Objection dated 25th October 2023 challenging the Respondent’s jurisdiction to grant leave to appeal out of time and/or to enlarge the time for appealing a decision of the Retirement Benefits Authority or the Chief Executive of the Retirement Benefits Authority.
45. The 2nd Interested Party also filed a Preliminary Objection dated 28th January 2024 contending inter alia that; the Respondent herein lacks the jurisdiction to hear and determine the 1st Interested Party’s Application dated 13th October 2023.
46. On 4th April 2024 the Respondent herein gave the following Orders;
a) The 1st Respondent’s (the 2nd Interested Party herein) Preliminary Objection dated 28th January 2024 be and is hereby dismissed.
b) The 2nd Respondent’s (the Exparte Applicant herein) Preliminary Objection dated 25th October 2023 be and is hereby dismissed.
c) The Appellant’s/Applicant’s (the 1st Interested Party herein) Application dated 13th October 2023 be set down for hearing at the earliest.
d) There shall be no order as to cost.
47. The Ruling delivered on 4th April 2024 by the Respondent herein now forms the basis of the Ex parte Applicant’s Applications dated 4th June 2024 and 10th June 2024 seeking Orders of Certiorari and Prohibition.
48. It is their case that the Ruling rendered by the Respondents on 4th April 2024 fell within the jurisdiction of the 1st Respondent.
49. It is argued that the 1st Interested Party’s members are aged pensioners who are suffering an injustice that is being extended by the delay of the Applicants not adhering to the Respondent’s Ruling dated 4th April 2024.
50. It is their case that Article 57 of the Constitution of Kenya 2020 protects the 1st Interested Party’s rights as older of society with respect to pursue their personal development and to live in dignity and respect.
51. The Respondent is created under Article 169 of the Constitution of Kenya 2010, and this Honourable Court has supervisory powers over the said Tribunal exercising dispute resolutions arising out of employment contracts.
52. They argue that the Respondent correctly interpreted the law by finding that it had the requisite jurisdiction to grant leave to file an appeal out of time and/or enlarge the time for filing an appeal Under Section 49 of the Retirement Benefits Act.
53. They further argue that The Respondent correctly interpreted the law by finding that the Civil Procedure Rules are applicable in matters of procedure not governed by the Rules or the Act by virtue of Rule 12 of the Retirement Benefit (Tribunal) Rules, 2000.
54. Rule 12 of the Retirement Benefit (Tribunal) Rules, 2000 clearly states that in matters of procedure not governed by these Rules or the Act, the Tribunal may adopt the Civil Procedure Rules made under the Civil Procedure Act (Cap 21) where applicable.
55. It is their case that The Retirement Benefit (Tribunal) Rules, 2000 is silent on the procedure to be followed when appealing out of time as such reference must be made to the Civil Procedure Rules as stipulated under Rule 12 of the Retirement Benefit (Tribunal) Rules, 2000.
56. They argue that the Respondent possesses the necessary jurisdiction to grant leave to appeal out of time or to extend the time for filing an appeal. In support of the 1st Interested Parties assertions, an examination of the Retirement Benefits Appeals Tribunal’s Jurisdiction as espoused by the Constitution of Kenya 2010, relevant statutes and legal precedent is pertinent.
57. They submit that Article 159 (1) of the Constitution states that judicial authority is vested in, and exercised by, courts and tribunals established by or under the Constitution. Article 169 (1) further defines subordinate courts to include local tribunals established by an Act of Parliament. They surmise that tribunals are classified as subordinate courts.
58. Reliance is placed on the case of Okoiti vs. Judicial Service Commission & 2 others; Katiba Institute (Interested Party) (Petition 197 of 2018) [2021] KEHC 461 (KLR) (Constitutional and Human Rights) (11 March 2021) where the Court in exhaustively discussing tribunals as subordinate courts held that local tribunals created under Article 169 (1) (d) of the Constitution are subordinate courts in Kenya.
59. They place further reliance on the case of The Trustees, Telposta Pension Scheme vs. Mackenzie M. Mogere & Another [2013] eKLR where the Court in discussing the appellate jurisdiction of the Retirement Benefits Appeals Tribunal defined the Retirement Benefits Appeals Tribunal as a local tribunal;
“I have carefully considered the above facts and the situation of this law. In my understanding and view, the Retirement Benefits Appeals Tribunal is a local tribunal whose purpose, functions and powers are expressly provided under sections 49 - 51 of the Act. Examination of those powers shows that the tribunal, like many similar tribunals established under Acts of Parliament, has special powers to hear and determine disputes filed by certain persons or institutions forming the membership of the Retirement Benefits Scheme.”
60. It is their case that the Judicature Act is defined as an Act of Parliament to make provisions concerning the jurisdiction of the High Court, the Court of Appeal and Subordinate Courts, and to make additional provisions concerning the High Court, the Court of Appeal and subordinate courts and the judges and officers of courts.
61. It is urged that Section 3 of the Judicature Act on the mode of exercise of jurisdiction provides as follows;
“The jurisdiction of the High Court, the Court of Appeal and all subordinate courts shall be exercised in conformity with—
a) The Constitution;
b) Subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;
c) Subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date: Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”
62. According to them, Section 10 of the Judicature Act on Rules provides that the Chief Justice may make rules of court for regulating the practice and procedure of the High Court and subordinate courts.
63. They state that The Retirement Benefits Appeals Tribunal is established under section 47 of the Retirement Benefits Act and that Section 46 provides that any member of a scheme who is dissatisfied with a decision of the manager, admini
[...truncated]