Kenya National Union of Nurses v Public Service Superannuation Fund Board of Trustees, Cabinet Secretary For National Treasury & Planning, Attorney General & Retirement Benefits Authority [2021] KEELRC 1573 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 202 OF 2020

KENYA NATIONAL UNION OF NURSES..........PETITIONER/APPLICANT

VERSUS

PUBLIC SERVICE SUPERANNUATION

FUND BOARD OF TRUSTEES..........................................1ST .RESPONDENT

THE CABINET SECRETARY

FOR NATIONAL TREASURY AND PLANNING.......... 2ND RESPONDENT

THE HON. ATTORNEY GENERAL................................... 3RD RESPONDENT

RETIREMENT BENEFITS AUTHORITY...................... 4TH RESPONDENT

RULING

1. The petition was filed on 3/12/2020 by the Kenya National Union of Nurses against the respondents.  The petitioner questions the constitutionality and legality of the 1st respondent Public Service Superannuation Scheme Board of Trustees.  The petition also seeks a declaration that sections 10(1) a, (g) and 12(1) of the Public Service Superannuation Act No. 8 of 2018, Laws of Kenya are inconsistent with Article 10(2), 27(1) ; 27(2) 27(4) 27(5) 27(6) 27(8) 47(1) and 41(1) of the Constitution and Rule 8 of the Constitution and Rule 8(1) (c) of the Retirement Benefits (Occupational Retirement Benefits Scheme/Regulation, 2000 therefore null and void to that extent.

2. The 1st to 3rd respondents filed a notice of preliminary objection dated and filed on 20/2/2021 to wit that the Employment and Labour Relations Court lacks jurisdiction to entertain this suit.  That it is only the High Court by dint of Article 165(3) (d) (1) of the Constitution that has jurisdiction to determine the question whether any law is inconsistent with or in contravention of the Constitution.

3. The petitioners and the respondents filed submissions in respect of the preliminary objection.

4.  The issue raised by the respondents is now well settled by this Court, the High Court and the Court of Appeal.  The locus classicus in this respect  are the High Court decision in Sarafina Wambugu and 195 Others -vs- United States International University – Africa (USIU) – Petition No. 143 of 2019 [2020] eKLRper Majanja J. and the Court of Appeal decision in Civil Appeal No. 6 of 2012 – Daniel N. Mugendi –vs- Kenyatta Universityand 2 Others [2013] eKLR per Nambuye, Mwera and Kiage, JJA, in which the Courts have stated with no uncertain terms that the Court established pursuant to Article 162(2) of the Constitution read with Section 12(1) of the Employment and Labour Relations Court Act, 2011 as amended in 2014 is a Court of equal status with jurisdiction to hear and determine matters specifically set out in the establishing Act but also have jurisdiction to hear and determine Constitutional matters of interpretation and application incidental and or emanating from matters related to employment and Labour relations.

5.  It is beyond per adventure that the matters raised in the petition relates to laws and institutions governing pension funds for employees in the public sector and any Constitutional issues raised in the petition are related and or incidental to Employment and Labour Relations.

6.  The Preliminary Objection lacks merit and is dismissed with costs in the cause.

DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JUNE, 2021.

MATHEWS N. NDUMA

JUDGE

ORDER

In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent.  They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.  In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

MATHEWS N. NDUMA

JUDGE

Appearances

Mr. Odukenya for 1st, 2nd and 3rd respondents

Mr. Musiega for the petitioner

Ekale – Court clerk