Clement Ogutu v Kenya Railways Staff Retirement and Benefits Scheme, Dig-Tec Images Limited & Mbukinya Success (K) Limited [2015] KEHC 7839 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO 188 OF 2015

CLEMENT OGUTU …….………………...…………….………….PETITIONER

VERSUS

KENYA RAILWAYS STAFF RETIREMENT

AND BENEFITS SCHEME ……….……..………………………RESPONDENT

AND

DIG-TEC IMAGES LIMITED………………….....…1ST INTERESTED PARTY

MBUKINYA SUCCESS (K) LIMITED …….....……2ND INTERESTED PARTY

RULING

Introduction

This petition relates to the management of certain properties by the respondent, of which the petitioner is a member. By his application dated 8th May 2015, the petitioner sought, inter alia, orders to restrain the respondent from using funds from the scheme to defend Civil Appeal No. 159 of 2015. He also sought orders for the maintenance of the status quo with respect to the property on which the petitioner claimed the 1st interested party had a temporary occupation licence (TOL), namely L.R No 209/6502(Part) Muthurwa Estate.  On 14th May 2015, I directed that the status quo on the said property be maintained. According to the petitioner, the status quo then was that the 1st interested party had a licence to use and occupy the said property.

The Application

The application is dated 8th May 2015 and seeks the following orders:

That this application be certified urgent and service be dispensed with in the first instance.

That pending the inter partes hearing of this application there be conservatory orders staying the proceedings in Civil Appeal No 159 of 2015.

That upon inter partes hearing of this application but pending the inter partes hearing of the petition herein there be a stay of the proceedings in Civil Appeal no 159 of 2015.

That pending the inter partes hearing of this application there be a conservatory order restraining the management of the respondent from applying the funds of the members to finance the proceedings in the pending appeal.

That upon inter partes hearing of this application but pending the inter partes hearing of the petition herein there be a conservatory order restraining the management of the respondent from applying the funds of the members to finance the proceedings in the pending appeal.

That pending hearing and determination of this application inter partes, there be an order for maintenance of status quo as regards the portion of land the TOL over which is disputed being the portion of LR No 209/6502(PART), MUTHURWA ESTATE, NAIROBI.

That upon hearing and determination of this application but pending the hearing of the petition, there be an order for maintenance of status quo as regards the portion of land the TOL over which is disputed, being the portion of LR No 209/6502(PART), MUTHURWA ESTATE, NAIROBI.

That in order to ascertain the correct position on the ground, this Honourable court be pleased to visit the site where the portion of land in dispute is situated.

Any other appropriate relief that this Honourable court may grant.

The respondent be condemned to pay the costs of this application.

The application is based on the following grounds:

The petitioner/applicant is a member of the respondent by virtue of being a retiree of Kenya Railways Corporation and his membership number is 731005H.

The petitioner brings this application as a person with a right under article 22 of the constitution to institute court proceedings while acting in his own interest and the interest of other members of the respondent scheme and claiming that a right of fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

The respondent is a Retirement Benefits Scheme registered as such under the Retirement Benefits Act, Chapter 197 laws of Kenya.

The respondent is registered pursuant to an Act of parliament, to wit, the Retirement Benefits Act, Chapter 197 Laws of Kenya whose functions include the administration of the pensions money and benefits of its members who are retirees of Kenya Railways Corporation which is a public body.

The respondent is a person under article 260 of the constitution of Kenya and as such is joined to this application as a person who has an obligation to respect, uphold and defend the constitution.

Article 10 of the constitution sets out the national values and principles of governance which bind all persons whenever any of them;

10(a) applies or interprets this Constitution

10(b) enacts, applies or interprets any law; or

10(c) makes or implements public policy decisions.

Among the national values and principles of governance set out under article 10(2) which the respondent is bound by are;

10(2)(a) … the rule of law and participation of the people;

10(2)(b) ... social justice, inclusiveness, human rights

10(2)(c) … good governance, integrity, transparency and accountability.

The petitioner has a right under article 40 of the Constitution to the protection of his property in the form of pension benefits under the administration of the respondent.

The petitioner has right to social security as enshrined at article 43(1)(e) of the Constitution.

The petitioner by being a retiree of Kenya Railways Corporation is an older member of the society and as such has all the rights enshrined at article 57 of the Constitution, including the right; 57© to live in dignity and respect and be free from abuse;

The respondent has been defending itself against suits filed against it, to with Chief Magistrate’s court civil case no 86 of 2015 and High court civil Appeal no 159 of 2015 and the petitioner reasonably believes that the respondent is applying the benefits or retirees which are under the payment of advocates legal fees and other incidental costs.

The petitioner has perused the proceedings in both CMCC No 86 of 2015 and HCC Appeal no 159 of 2015 and the petitioner has further been advised by his advocate on record who has also perused the proceedings that the suit and appeal have arisen from the respondent’s wrongful and unlawful conduct by which the respondent caused a double allocation of Temporary Occupation Licence (TOL) over the same portion of land, being the portion of L.R No. 209/6502(PART) MUTHURWA ESTAE, NAIROBI to two persons, being the 1st and 2nd interested Party herein.

Upon perusal of the proceedings in both matters, the petitioner has discovered that the defence of the respondent in both matters is full of misrepresentations and non-disclosure of material facts and the petitioner is apprehensive that when the truth and facts are finally presented to court, the respondent will lose and the respondent may be condemned to pay huge sums of money in costs.  The said costs may be recovered against the respondent through withdrawals from the respondent’s members’ benefits, which would amount to taking away the petitioner’s and member’s right to property.

Particulars of misrepresentations, non-disclosures in the court proceedings and unlawful conduct by the respondent.

Whereas the truth of the matter is that the 1st interested party is in actual occupation of the demised premises, the respondent unashamedly denies this fact at paragraph 6(xviii) of Simon Nyakundi’s replying affidavit sworn on 22/4/2015.

Whereas the respondent was unable to grant the 1st interested party vacant possession until 15/1/2015 despite the 1st interested party having continued to pay rent from January 2013, the respondent alleges that the TOL granted to the 1st interested party has expired and the respondent intends to refund the excess rent payment.

Whereas in addition to payment of rent the 1st interested party has also invested in the demised premises by undertaking construction of gate and fence, the respondent is has denied this fact at paragraph 6(six) of Simon Nyakundi’s replying affidavit aforesaid.

The respondent purported to execute a TOL in favour of the 2nd interested party and even received rent from the 2nd interested party while it knew pretty well that it had just delivered vacant possession to the 1st interested party in January 2015 and the 1st interested party was and is still in actual occupation of the demised premises.

The decision to grant TOL to the 1st and 2nd interested party was made without consultation with and the participation of the members of the respondent scheme and as such was a violation of article 10 of the Constitution.

The decision to appoint advocates to defend the respondent’s ill-advised and misconceived decisions was made without the knowledge or approval of the members of the respondent scheme, yet the matters in dispute in court have the potential to affect the members adversely especially when their benefits are to be applied to meet legal costs.

to the extent that the respondent’s trustees led by the Chief Executive Officer (CEO) have failed to put members in the know and to update the members about important decisions which affect members such as the existence of the said suits against the respondent, and to disclose to members how much money has been used to finance the litigation, the respondent’s trustees and CEO have failed to conduct the affairs of the respondent in a transparent and accountable manner in contravention of article 10 of the Constitution.

Unless the proceedings in High Court at Nairobi Civil Appeal No 159 of 2015 are stayed, the respondent may continue to apply the members’ money to finance self-inflicted, unnecessary and baseless litigation thereby threatening the petitioner’s right to human dignity and social security which can only be realized if the respondent administers the petitioner’s benefits in a constitutional, prudent and lawful manner.

In his submissions on behalf of the petitioner/applicant, Mr. Wambola stated that the petitioner was seeking prayers 4, 5, 7, and 9 of the application.  According to the applicant, the respondent is a retirement benefits scheme established pursuant to the Retirement Benefits Act, Chapter 197 Laws of Kenya. It has therefore the status of a public body and is therefore bound by the Constitution. It has the mandate to conduct itself in a manner that promotes the interests of the pensioners, such as the petitioner.

The petitioner’s contention is that the respondent has violated Articles 10, 57, and 40, or threatened a violation thereof; and that under Article 57, he is entitled to participate in the affairs of society, and to live in dignity and be free from abuse.

According to the petitioner, the respondent is the custodian of the assets of the scheme, investment in which should form part of the pension funds that should benefit the pensioners. One of the core assets of the scheme is L.R. No. 209/6502, which is part of Muthurwa Estate Nairobi. He contends that the respondent has caused the said property to be double allocated to two persons at the same time, with the natural consequence of attracting litigation from the allottees against the respondent.

The applicant refers to a copy of a temporary occupation licence issued by the respondent in favour of the 1st respondent, and a second temporary occupation licence in favour of the 2nd interested party. He also refers the Court to copies of cheques issued by the 1st interested party to the respondent in respect of the temporary occupation licence issued to it.

The petitioner contends that he has not participated or been involved in the making of such weighty decisions as the issuance of the TOL; that following the issuance of TOL to two parties over the same properties, the 1st interested party filed a suit against the respondent in the Chief Magistrate’s Court in Civil Case No 86 of 2015. He has also filed Civil Appeal No 159 of 2015, an appeal from the decision in the Chief Magistrate’s Court Civil Case No 86 of 2015.

According to the petitioner, the respondent has had to defend these suits by spending money that would have formed part of the benefits of the petitioner, which suits could have been avoided.  It is his case that the manner in which the Muthurwa property is being managed does not serve his interests, is wasteful and the respondent seems to use it as its own property while it holds it in trust for the pensioners. It is his contention that he is apprehensive that unless the court issues conservatory orders to restrain the respondent from mismanaging the property, then his interests as protected under Article 57 will continue to be violated. Further, that Article 10 on the need for transparency in conducting the affairs of the respondent will also continue to be violated.

In countering the respondent’s objection to the application and petition on the basis that there had been other suits on the same matter and the petition was therefore sub judice or res judicata, Mr. Wambola submitted on behalf of the petitioner that in as much as there had been other suits involving the respondent and some pensioners, the issues raised in those suits have never been the same. With respect to Petition No. 159 of 2012, it was his submission that the petitioners in that case were challenging their removal from office and seeking declarations that they should be allowed to remain in office or offer themselves for re-election, which is not the case in this petition.

Similarly, according to the petitioner, the issue in Petition No. 353 of 2012 referred to in the respondent’s replying affidavit was different in that the petitioners were challenging the manner in which the members of the Scheme were appointed and the composition of the Board of Trustees, which the petitioners alleged was illegally and irregularly constituted.  It was his contention therefore that the question of this suit being res-judicata does not arise.

With respect to the challenge to the Court’s jurisdiction on the basis that section 46 and 47 of the Retirement Benefits Authority Act  requires that disputes be dealt with by the RBA Tribunal, it was Mr. Wambola’s submission that the dispute in this matter is not an ordinary one over which the RBA would have jurisdiction.  It involves allegations of violation of the Constitution and the petitioner’s constitutional rights, which the RBA Tribunal has no jurisdiction to deal with. The petitioner relies in this regard on the decision in Wilfrida Arnolds Itolondo vs Board of Trustees of Kenyatta University Staff Retrenchment Scheme High Court Petition No 410 of 2013in which the Court held that the RBA Tribunal could not deal with issues of whether a right or fundamental freedom had been violated. Counsel submitted that where an allegation of violation of a right or of the Constitution had been made, the matter cannot be struck out on a technicality.

The applicant also submitted that the matter before the Court was not sub judice. His case was that he was not a party to those suits, and since he had made a prima facie case for the grant of the orders prayed for, the Court should rule in his favour.

The Response

In response to the application, the respondent filed a replying affidavit sworn by Mr.  Nicholas Kikuvi on 19th May 2015, a Notice of Preliminary Objection of the same date, and a list and bundle of authorities.

In its Notice of Preliminary Objection dated 19th May 2015, the respondent opposes the application and petition on the following grounds:

That the Honourable Court is a wrong forum to preside over this petition as the same seeks to canvass issues between a pensioner and a pension scheme which matter ought to be handled by the statutory mechanisms provided under section 46(a) and 48 of the Retirement Benefits Act.

That the petition herein and all the proceedings herein are sub-judice as the matters are pending before a competent court seized with jurisdiction, under Milimani High Court Civil appeal No 159 of 2015.

That the entire petition as laid herein against the respondent is therefore a substantive and monumental legal nullity and an abuse of the court process proper to be struck out and or dismissed ex debito justiciae with costs to the respondent.

In simple terms, the respondent’s preliminary objection is that the present petition and application are sub judice, and secondly, that the dispute has been lodged before the wrong forum.

With respect to the petition being sub judice, Learned Counsel, Mr. Milimo, submitted that the petition is sub judice as there are proceedings pending before the Chief Magistrate in CMCC No 86 of 2015 and in the High Court inCivil Appeal No 159 of 2015, which is an appeal against an order on an application for conservatory orders. The respondent pointed out that in his application, the petitioner had made reference to  three items: a dispute relating to plot L.R No 209/6502 (Part) Muthurwa Estate; Milimani CMCC No 86 of 2015 Dig-Tec Images Limited vs Kenya Railways Staff Retirement Benefits Scheme & Mbukinya Success(K) Limitedand Nairobi Civil Appeal No 159 of 2015- Dig-Tec Images Limited vs Kenya Railways Staff Retirement Benefits Scheme & Mbukinya Success (K) LimitedandMoses Were Washika, Fred Yesho  Muzungyoand Robert Azariah as interested parties. The pleadings in these proceedings consist of an application for conservatory orders by the 1st interested party, who was the plaintiff in that case, which was dismissed for failure to establish a prima facie case.  Dissatisfied with the decision, the plaintiff filed Civil Appeal No 159 of 2015. An interlocutory application in the appeal was pending before Mabeya J, and the Court directed that the parties argue the main appeal on 22nd of September 2015.

According to the respondent, the issues being raised in this petition are pending before courts of concurrent or competent jurisdiction. The petitioner in this matter is supporting one side in that suit, and in this petition, he is tearing apart the respondent’s evidence before the Chief Magistrate’s Court, assessing the evidence and alleging mismanagement, thus usurping the role of the Court, which cannot be a ground for a constitutional petition.

The respondent submits that section 3 and 6 of the Civil Procedure Act are clear that a court has no jurisdiction to determine issues pending before other courts. In its view, in order for this Court to determine whether the grounds relied on by the petitioner raise a constitutional issue, it must determine that the respondent is wrong in the other proceedings, and this would result in parallel proceedings, which would be an abuse of process.

The respondent relies on the decision in Sande Investments Limited & Others vs Kenya Commercial Bank Limited Civil Case No. 174 of 2004and Commercial Spares Ltd vs Al Nakhil Enterprises Limited & Another Milimani Commercial Court Civil Case No. 388 of 2002for the proposition that it is an abuse of process for parties to bring fresh litigation because of fresh views they may have of the law or of their case.

With regard to the facts of the case and whether or not there was double allocation the respondent submits that the 1st interested party was allocated the property in dispute for a term of one year, which was to expire on 1st January 2014.  Upon expiry of the term, the 2nd interested party was granted a lease, commencing on 1st October 2014, over the property. The respondent’s case is that the second lease was given when the first had already expired, and there is no question of double allocation.  The respondent submitted that what the 1st interested party sought was a forced renewal of the lease through a court process, which has been dismissed.  Mr. Milimo submitted that where there is a court decision in favor of the respondent, it cannot be said to be mismanaging the property.

The respondent submits further that when the 1st interested party’s application was dismissed in the lower court, he sought to gain an entry into the arena of litigation by proxy through the petitioner, and was seeking the same conservatory orders that had been rejected in the lower court. Mr. Milimo observed that prayers 6 and 7 of the application now before this Court are the same orders as were sought, unsuccessfully, in the lower court.

With respect to the appropriate forum to deal with this matter, the respondent submits that the petitioner is unhappy with the decisions made by the respondent; that he is, in other words, unhappy with the management. It was his submission that such grievances fall squarely within sections 46 and 47 of the RBA Act. The respondent’s position, according to Mr. Milimo, was not that the Court has no jurisdiction to preside over matters such as this. Rather, it is that this Court is not the first port of call for a party allegedly aggrieved by a decision such as is before the Court in respect of a pension scheme, as was determined in Petition No 159 of 2012 (Consolidated with Petition No.  353 of 2012).

Finally, with respect to the merits of the application, the respondent’s case was that the applicant had not demonstrated the known grounds for grant of a conservatory order: he had not established a prima facie case; no constitutional issue had been raised; no mention of irreparable loss to be suffered by the petitioner if the orders are not granted was demonstrated, as the petitioner was being paid his pension punctually, which is his only interest that can be secured in this Court; and there is no relationship between the petitioner and the contractual documents in respect of the lease to the 1st interested party. Mr. Milimo submitted that the balance of convenience tilts in favour of the orders not being granted as the issues raised are before other Courts, and he prayed that the petition be dismissed. With regard to costs, the respondent prayed that costs should be granted to the respondent, noting that the petitioner had filed this matter solely to assist the 1st interested party.

The Case for the Interested Parties

At the close of the respondent’s submissions, a Mr. Ochieng appeared and informed the Court that he was holding brief for a Mr. Onyango for the 1st interested party. No pleadings or other document had been filed on behalf of the 1st interested party, and Mr. Ochieng informed the Court that he was leaving the matter to Court.  No appearance was entered on behalf of the 2nd interested party either, and so for the purposes of this ruling, there was no participation in the matter by the interested parties.

Submissions in Response

In his reply on behalf of the petitioner, Mr. Wambola observed that Counsel for the respondent had only attacked the conduct of the 1st interested party with regard to the terms of the TOL and has alleged breaches of the TOL.  It was his submission that the petitioner has nothing to do with the relationship between the respondent and the interested party and the alleged breaches of the TOL.

According to Mr. Wambola, the petitioner’s concern is limited to the extent to which his rights are violated or threatened with violation through the conduct of the respondent.  It was his submission that the petitioner did not need to demonstrate a violation of his rights, that even a mere threat under the constitution is enough to warrant the grant of conservatory orders.

The applicant denied that he was a proxy of the 1st interested party. Mr. Wambola submitted that prayers 2 and 3 of the petitioner’s application sought to stay proceedings which had been instituted by the 1st interested party, which would not have happened if the petitioner was championing the interests of the 1st interested party.

Determination

I have read and considered the pleadings and submissions of the parties before me, and I take the following view of the matter.

The applicant before me is expressed as one seeking conservatory orders to restrain the respondent from taking certain actions that the petitioner alleges are in breach of his constitutional rights. The first three orders sought to stay proceedings in High Court Civil Appeal No. 159 of 2015 between the 1st interested party, the respondent and the 2nd interested party in this case. From the response by the respondent, it appears that the Court (Mabeya J) had directed that the appeal proceeds on 22nd September 2015.

The other orders seek to restrain the respondent from financing the said appeal from its funds. The contention by the petitioner is that the use of the said funds to finance the litigation is a violation of his rights as a pensioner under the scheme. He alleges violation of his right to participate in the management of the scheme, and contends that he should have been involved in the grant of temporary occupation licences to either the 1st or 2nd interested parties. In other words, he claims a right to be involved in the decision-making, or management, of the assets of the respondent.

The principles to be followed in the grant of conservatory orders in petitions alleging violation of constitutional rights has been well articulated over the years in various decisions of this and other courts, including the apex court in the land, the Supreme Court.

The first is that the petitioner must show a prima facie case with a likelihood of success, and that if the conservatory orders are not granted, he is likely to suffer prejudice.  In Centre for Rights Education and Awareness (CREAW) & 7 Others vs Attorney General Petition No. 16 of 2011, the Court (Musinga J (as he then was) stated as follows:

“...It is important to point out that the arguments that were advanced by Counsel and that I will take into account in this ruling relate to the prayer for a Conservatory Order in terms of prayer 3 of the Petitioner’s Application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a Conservatory Order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the Court grants the Conservatory Order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.” (Emphasis added)

In Muslims for Human Rights (MUHURI) & 2 Others vs Attorney General & 2 Others, Petition No 7 of 2011,  Ibrahim J (as he then was) while agreeing with the view expressed by Musinga J in the CREAW case cited above, observed as follows:

“I would agree with my Brother, that an applicant seeking Conservatory Orders in a constitutional case must demonstrate that he has a “prima facie case with a likelihood of success.”

These principles were also cited with approval in the case of  Martin Nyaga Wambora vs Speaker of The County Assembly of Embu & 3 Others Petition No. 7 of 2014  in which the Court expressed itself as follows:

[59]”In determining whether or not to grant conservancy orders, several principles have been established by the courts. The first is that: “… [an applicant] must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”

[60] To those erudite words I would only highlight the importance of demonstration of “real danger”. The danger must be imminent and evident, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that is remote and unlikely will not attract the court’s attention”.

[61] The second principle, which naturally follows the first, is whether if a conservancy order is not granted, the matter will be rendered nugatory”.

In the case of Gatirau Peter Munya vs Dickson Mwenda Githinji & 2 Others SCK Petition No 2 of 2013, the Supreme Court enunciated a third, critical principle in the grant of conservatory orders. This principle is to the effect that the Court must consider the public interest principle in determining whether or not to grant conservatory orders, particularly in cases where orders are sought to stop a public agency from carrying out its mandate. In that case, the Supreme Court (Ojwang and Wanjala, JJSC) stated as follows:

[86]”…Conservancy Orders’ bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within the public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private party issues as ‘the prospects of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values and the proportionate magnitudes, and priority levels attributable to the relevant causes”

[63] Thus, where a conservancy order is sought against a public agency like a legislative assembly that is mandated to carry out certain functions in the normal course of its business, it is only to be granted with due caution. The interruption of the lawful functions of the legislative body should take into account the need to allow for their ordered functioning in the public interest.”

Counsel for the petitioner did not at any point in his submissions, which I have set out at length earlier in this judgment, seek to bring the petitioner’s case within these principles. The application sought to stop proceedings before a Court of concurrent jurisdiction, prayers which the applicants Counsel, prudently, did not pursue. It also sought to maintain the status quo in respect of the property over which a TOL had been issued to the 2nd interested party, and to stop the expenditure of funds by the respondent in defending the the Civil Appeal before the High Court.

The question is how any of the matters complained of translates into a violation or threat to the petitioner’s constitutional rights.  Does the right to participate in the affairs of the respondent translate into a right by individual pensioners to be involved in the minutiae of the decisions made by the scheme, including decisions as to whom the respondent should grant a temporary occupation licence? And does the non-involvement in the making of such decisions translate into a threat or violation of a constitutional right? And what is this constitutional right that is violated or threatened with violation? With respect to Counsel for the petitioner, he did not make a very convincing attempt to demonstrate the alleged violation or threat, and I must state that I can find none that would justify the grant of conservatory orders. It is therefore my view, and I so find, that the application dated 8th May 2015 has no merit, and is hereby dismissed.

But this does not put an end to the matter, as the respondent raises two other issues which this court should consider.

Whether the Petition should be Struck Out

In its Notice of Preliminary Objection and submissions, the respondent raises two points on the basis of which it prays that the petition be struck out in its entirety. It argues, first, that this is not the proper forum for determination of the issues that the petitioner raises, and secondly, that the matter is sub judice as it is pending before the High Court in Civil Appeal No. 159 of 2015.

The petitioner is aggrieved by the manner in which the respondent is managing its assets, from which his pension is paid. He seeks to be involved in the said management, and wishes to stop the expenditure of funds on the litigation between the respondent and the 1st interested party. The petitioner seeks the following prayers in his petition dated 8th May 2015:

A declaration that the petitioner as a member of the respondent is entitled to participation in crucial decisions of the respondent which have the potential to affect him as a pensioner.

A declaration that the manner in which the respondent is running its affairs specifically with regard to the grant of the TOL and defending the suits against it without the knowledge f the petitioner and other members violates articles 10 of the constitution on public participation, transparency and accountability.

A declaration that the use of the petitioner’s and pensioners funds to defend suits without the knowledge or consent of the petitioner and, or other members violates the petitioner’s right to property under article 40 and right to social security under article 43.

An order compelling the respondent to involve the petitioner and its other members in the discussions touching on the issue of grant of TOL over the portion of land in question.

The respondent be condemned to pay costs of this petition.

Any other appropriate relief that the court may grant.

The petitioner’s claim thus focuses on the management of the affairs of a retirement benefit scheme, and the question is whether the Court is the appropriate forum for dealing with such disputes.

This Court has had occasion to deal with issues related to the management of the scheme by the respondent in no less than three decisions. In High Court Petition No. 159 of 2012(Consolidated with High Court Petition No. 353 of 2012) Tom Kusienya and 11 Others vs Kenya Railways Corporation and 2 Others, the Court observed as follows:

[33. ]The matters presently before me revolve around the exercise of powers by the RBA, a body corporate established under Section 3 of the RBA Act and with its powers set out under section 5 of the Act as follows:

“(a) regulate and supervise the establishment and management of retirement benefits schemes;

(b)   protect the interests of members and sponsors of retirement benefits sector;

(c) promote the development of the retirement benefits sector;

(d)   advise the Minister on the national policy to be followed with regard to retirement benefits schemes and to implement all Government policies relating thereto; and

(e)   perform such other functions as are conferred on it by this Act or by any other written law.”

[34. ]    It is apparent therefore that RBA is the body entrusted with the regulation and supervision of the management of retirement benefits schemes. Part VI of the Act deals with appeals under the Act. Section 46 provides for Appeals to the Chief Executive Officer and states that:

“(1) Any member of a scheme who is dissatisfied with a decision of the manager, administrator, custodian or trustees of the scheme may request, in writing, that such decision be reviewed by the Chief Executive Officer with a view to ensuring that such decision is made in accordance with the provisions of the relevant scheme rules or the Act under which the scheme is established.”

[35. ]    Section 47 establishes an Appeals Tribunal for the purpose of hearing appeals under the Act, while section 48 goes on to provide as follows:

“48. Appeals to the Tribunal

(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.

(2)         Where any dispute arises between any person and the Authority as to the exercise of the powers conferred upon the Authority by this Act, either party may appeal to the Tribunal   in   such   manner   as may be prescribed.”

[36. ]    It is clear from the provisions cited above that there is a specific mechanism established under the RBA Act for dealing with disputes under the Act.”

A similar decision was reached in the case of Robert A. Azariah and 6 Others vs Kenya Railways Staff Retirement Benefits Scheme High Court Petition No. 156 of 2015. In that case, the Court observed as follows:

[9. ] With respect to the provisions of the Trust Deed, there is incorporated within its provisions internal dispute resolution mechanisms. Clause 34 of the Trust Deed provides that

“Save where the decision of the Trustees is made final under the provisions of this Deed, if at any time hereafter any dispute, difference or question shall arise between the Sponsor, the Trustees, the Members, the Member’s Dependants or other persons or their Personal Representatives or any of them respectively touching the construction, meaning or effect of this Deed or any cause or thing therein contained or the rights or liabilities of any of them under this Deed or otherwise howsoever in relation to the Scheme then every such dispute or question shall be referred to arbitration by a single arbitrator appointed by the parties and in default of such agreement by the Auditor agreed upon by the parties in the dispute and the result of which arbitration shall be final and binding upon all parties and the proceedings shall be regulated by the provisions of the Arbitration Act, No 4 of 1995 of Laws of Kenya or any law or instrument amending, extending or replacing that Act.”

[10. ] Evidently, there are clear mechanisms and processes established for dealing with disputes between members of the respondent inter se, or with the respondent itself. Under the Kenya Railways Staff Retirement Benefits Scheme Trust Deed and Rules, any dispute must first be subjected to arbitration, and under the RBA Act, any person aggrieved by the decision of the manager, administrator, custodian or trustee of any scheme may request in writing for a review of any such decision by the Chief Executive Officer. A party dissatisfied with a decision of the executive officer has a right of appeal to the RBA Tribunal.’

I must agree with the respondent that this is not the proper forum for the ventilation of whatever dissatisfaction the petitioner may have with the management of the scheme by the respondent. While, as I observed in the Tom Kusienya case, this Court has very wide discretion, it must restrain itself from exercising such jurisdiction where an alternative forum and process has been provided by law:

[32. ]    Given the wide jurisdiction conferred on the Court by the above Article therefore, it is doubtless correct to say that this court has jurisdiction by virtue of Article 165(3) to deal with the matters before it. As to whether this Court is the appropriate forum in the circumstances is a different issue altogether. Courts will at times decline to exercise jurisdiction even though they may have jurisdiction to deal with the issues the subject of controversy where there are alternative remedies available in other forum stipulated under the law. In its decision in Diana Kethi Kilonzo & Another v The Independent Electoral & Boundaries Commission (IEBC) & 10 Others, Petition No. 359 of 2012 [2013] e KLR, the Court observed as follows:

“[73] We note that the Constitution allocated certain powers and functions to various bodies and tribunals. It is important that these bodies and tribunals should be given leeway to discharge the mandate bestowed upon them by the Constitution so long as they comply with the Constitution and national legislation. These bodies and institutions should be allowed to grow. The people of Kenya, in passing the Constitution, found it fit that the powers of decision-making be shared by different bodies. The decision of Kenyans must be respected, guarded and enforced. The courts should not cross over to areas which Kenyans specifically reserved for other authorities.”[Emphasis added]

It is my finding therefore, and I so hold, that this is not the proper forum for the issues in dispute, and for this reason, the petition must be struck out as prayed by the respondent.

I now turn to the final reason why the petition cannot be saved. First, the respondent has averred, and this is not disputed, that the petitioner was represented in the previous suits involving members of the scheme against the respondent, in the case of Tom Kusienya & Others, now pending before the Court of Appeal, by his association, the Association of Kenya Railways Retirees (AKERARE).

The petitioner is also aware, and was aware at the time of filing this petition, that there was a matter pending before the lower court in which the orders he seeks in this petition had been sought unsuccessfully by the 1st interested party. He was also aware that the matter was pending appeal before the Civil Division of the High Court.  It is also alleged, and again not disputed, that a group of pensioners had filed an application, slated for hearing on 7th May 2015, but adjourned to 11th May 2015, seeking to be enjoined as interested parties in High Court Civil Appeal No. 159 of 2015.

According to the respondent, the applicant could have applied to join the proceedings with his fellow pensioners, but instead chose to file the present petition on 8th May 2015. He approached this Court, effectively, though his Counsel denied this, as a proxy of the 1st interested party, for what the petitioner sought to protect, in my view, was not the assets of the respondent or his interest in such assets, but the interests of the 1st interested party in the TOL over the subject property. Were this not the case, why would the petitioner, concerned about the expenditure of the scheme’s funds on litigation, seek to engage the respondent in yet more litigation while he could easily have participated in pending litigation?

At any rate, as the matters in dispute were the subject of litigation before other courts, one of them a court of concurrent jurisdiction, it is difficult to see the rationale for filing the present petition. I therefore agree with the respondent that it is an abuse of the court process, and must be struck out.  I need not add that having read and considered the pleadings, I have been unable to find a constitutional issue raised by this petition, but that is not a matter for consideration given my findings with regard to the forum and the pendency of other suits.

Ordinarily, in petitions alleging violation of constitutional rights, the court is loath to saddle a litigant with costs. However, in this and similar instances, there is an inordinate burden being placed on bodies such as the respondent, to the detriment of pensioners, in being dragged to  court by individual pensioners in disregard of the processes provided by law, and with respect to matters which can be dealt with under the internal mechanisms of the respondent. In the circumstances, I take the view that the petitioner should bear the respondent’s costs of this petition.

The application dated 8th May 2015 is hereby dismissed, and the petition is hereby struck out with costs to the respondent.

Dated, Delivered and Signed at Nairobi this 28th day of October 2015

MUMBI NGUGI

JUDGE

Mr. Wambola instructed by the firm of Ongoya & Wambola & Co. Advocates for the petitioner/applicant.

Mr. Milimo instructed by the firm of Milimo, Muthomi & Co. Advocates for the 1st respondent.

No appearance for interested parties.