Republic v Retirement Benefits Appeal Tribunal & 629 others; Osman & 628 Others & another (Interested Parties); Standard Chartered Bank Kenya Limited (Exparte); Kamau & 3 others (As the trustees of Standard Chartered Kenya Pension Fund (The 1st Scheme)) & another (Intended Interested Party) [2023] KEHC 23736 (KLR)

Republic v Retirement Benefits Appeal Tribunal & 629 others; Osman & 628 Others & another (Interested Parties); Standard Chartered Bank Kenya Limited (Exparte); Kamau & 3 others (As the trustees of Standard Chartered Kenya Pension Fund (The 1st Scheme)) & another (Intended Interested Party) (Miscellaneous Civil Application E110 of 2022) [2023] KEHC 23736 (KLR) (Judicial Review) (5 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23736 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Civil Application E110 of 2022

JM Chigiti, J

October 5, 2023

Between

Republic

Applicant

and

The Retirement Benefits Appeal Tribunal

1st Respondent

The Attorney General & 628 others

2nd Respondent

and

Abdalla Osman & 628 Others

Interested Party

Retirement Benefits Authority

Interested Party

and

Standard Chartered Bank Kenya Limited

Exparte

and

David Gico Kamau, Walter Mungai, Azirikam Mudika Lubia, Bartesh Shah (As the trustees of Standard Chartered Kenya Pension Fund (The 1st Scheme))

Intended Interested Party

David Gico Njoroge, Walter Mungai, Beatrice Maingi, Jane Chege, Nicholas Otado, Julius Mwangi (As the trustees of Standard Chartered Kenya Staff Benefits Scheme 2006 (The 2nd Scheme))

Intended Interested Party

Judgment

Brief background: 1. The 1st - 629th interested parties are all former employees of Standard Chartered Bank Limited ("the Bank") and either members of Standard Chartered Bank Kenya Pension Fund established in 1975 as a defined benefit scheme (hereinafter referred to as OR NO. E110 01 2022 "the Fund"') or the Standard Chartered Kenya Staff Retirement Benefits Scheme (hereinafter referred to as "the Scheme").

2. The Fund was established through a Trust Deed dated 3rd June 1975 (hereinafter referred to as "the Trust Deed" (see pages 327 - 366 of the Record), for the purposes of providing pensions on retirement and other benefits to the employees of the Bank. The Trust Deed established a Defined Benefit Scheme for existing and future employees of the Bank, to be controlled and managed by the trustees on an irrevocable trust as specified therein and subject to such limitation as was specified in the Trust Deed as amended or modified from time to time.

3. By a Supplemental Trust Deed dated 16th July 1999 (hereinafter referred to as "the Supplemental Trust Deed') (see pages 41 - 92 of the Record), the Trust Deed was amended effective from 1st January 1999 (hereinafter "the Supplemental Trust Deed") preserving the defined benefit portion of the Scheme but introducing a defined contribution for continuing employees as stated at Clause 14(2) and 14A of the Supplemental Trust Deed.

4. On 1st of July 2006, the 1st Ex-parte Applicant, by a Trust Deed of the same date (see pages 453 - 486 of the Record), established the Scheme to commence on 1st January 2006. The Scheme was established with the agreement of the eligible employees of the Bank and was to be operated and managed as a Defined Contributory Scheme. Save for some of the Appellants who are members of the Scheme but have joined in these proceedings, the said Scheme is not relevant to these proceedings

5. In order to regulate the retirement benefits industry, Parliament enacted the Retirement Benefits Act No. 3 of 1997 (hereinafter "the Act") whose object is: -“to establish the Retirement Benefits Authority for the Regulation, supervision and promotion of retirement benefits schemes, the development of the retirement benefits sector and for connected purposes"

6. The Act goes further at Section 45 and provides That the Trustee, Manager Custodian or Administrator of a Scheme shall: -“Ensure That the scheme funds are at all times managed in accordance with the Act, any regulations made thereunder, the scheme rules and any directions given by the Chief Executive Officer."

7. The 1st- 629th interested parties comprise Deferred Pensioners who opted to receive a lumpsum, under the terms of a Voluntary Early Retirement (hereinafter "VER") and employees who were terminated or resigned and opted to receive a lumpsum but thereafter filed suit before the Industrial Court being Cause No. 1 - 77 of 1999 and obtained an award thereon. Among the Appellants are existing members of the Defined Contribution Scheme. It also included Appellants who are members of either the defined contribution or defined benefit schemes but remain as members and are receiving their pensions.

8. Further, there are also 1st- 629th interested parties whose benefits do not accrue under either the Supplemental Trust Deed or the Scheme and those in the Scheme who withdrew their contribution and are not entitled to any further benefits under the Regulations.

9. By a ruling delivered on 12th October 2018, the ELRC (Honourable Mr. Justice Onesmus Makau) directed as follows: -“Consequently, I down my tools at this juncture and refer this dispute to the CEO of the Retirement Benefit Authority to determine it on the merits under section 46 of the Retirement Benefits Act. Considering the age of the suit, I direct That priority be accorded to the matter.”

10. By letter dated 21st February 2020, the firm of Oseko & Ouma Advocates wrote to the then Chief Executive Officer of RBA, Mr. Nzomo Mutuku, MBS, (the "CEO") indicating That the present dispute was being referred to the RBA in compliance with an order given by Employment and Labor Relation Court ("ELRC") on 10th February 2020.

11. The 1st - 629th Interested Parties were notified of the complaints procedure by an email dated 30th November 2020 after which they filed a complaint form dated 14th May 2020.

12. By a letter dated 7th May 2020, the RBA informed the Chairman of the Board of Trustees of the Standard Chartered Bank Kenya Pension Fund That a complaint has been filed and further requested for a detailed response to the said complaint within 30 days.

13. Subsequently through the letter dated 7th July 2020, and through their appointed Counsel, the Board of Trustees tendered their response. On 24th July 2020, the 1st - 629th Interested Parties presented their rejoinder to the response filed by the Board of Trustees.

14. On 1st October 2020, the 1st - 629th Interested Parties presented additional documents in support of their Complaint. Upon considering the Complaint, the responses and the documents supplied by the parties the CEO held as follows:a.All the 1st - 629th Interested Parties therein at the time of leaving service had not attained the Normal Retirement Age of the prevailing Trust Deed Rulesb.And thus found That the actuarial factor stated in the booklet (11. 10 for males and 12. 20 for females) was not applicable to the 1st - 629th Interested Parties.c.The actuarial factors applied to the deferred pensions of the 1st - 629th Interested Parties were used to determine the cash lump sum in lieu of the deferred pensions.d.The provisions to be applied to the 1st - 629th Interested Parties is Schedule I and II of the TDR dated 3rd June, 1975 which was the prevailing TDR when a majority of the 1st - 629th Interested Parties' services were terminated and That it was clear from Schedule I of the said TDR That a member is not eligible to pension before NRA save for incapacity and ill health.e.Since the actuarial factor used in the determination of benefits was provided TDR, the 1st - 629th Interested Parties were paid under the Scheme Rules and the correct actuarial factors were used in the computation.f.The 1st - 629th Interested Parties did not provide the actuarial valuation of 1997 and 2000 to justify their claim That the trustees failed to take into account the cost of living adjustments to pensions in payment.g.The provision for housing allowance did not feature in the 1975 TDR, the applicable TDR when most complainant's services were terminated. The 1st - 629th Interested Parties had not tendered any evidence on the computation of those whose services were terminated after 16th July, 1999 to show That housing allowance was not factored.h.The 1st - 629th Interested Parties did not adduce the following documents: actuarial valuation dated 31st December, 1994, increased pension payment by 4. 14% per year from the Trustees and Bank, actuarial valuation of 1997 and an interim valuation of the fund to enable the CEO make conclusive determination on whether the trustees failed to take into account expectations of future increases in payment.i.The 1st - 629th Interested Parties did not adduce evidence to support the claim That the trustees carried out an actuarial valuation dated 31st December, 1997 That revealed a surplus of Kshs. 1. 536 billion which was paid back to the bank.j.Majority of the 1st - 629th Interested Parties' services were terminated before the conversion on 1st January, 1999 and paid a lump sum or had their benefits transferred to an insurance company and were therefore not affected by the conversion to a defined contributory scheme which the 1st - 629th Interested Parties alleged reduced benefits and resulted in a reduction of future accrual benefits.k.The Scheme established by the bank was a defined scheme which did not consider member's contribution in payment but rather, the formula and promise provided under the rules.

15. Being dissatisfied with the decision of the CEO, the 1st - 629th Interested Parties lodged an Appeal to the Tribunal vide a Memorandum of Appeal dated 19th May 2021 seeking orders That the Appeal be allowed and the decision of the CEO be set aside pursuant to the provisions of Section 48 and 49 of the Act being Civil Appeal No. 8 of 2021: Abdalla Osman & 629 Others vs. Standard Chartered Bank Kenya Limited & Others.

16. The proceedings before the Tribunal culminated in its judgment dated 28th April 2022. The Tribunal then rendered its judgment on 28th April 2022 in arriving at the following, inter alia That:a.the TDR That ought to have been applied in computing the benefits was the one dated 16th July 1999 TDR and not the 3rd June 1975 TDR.b.The information made available to the 1st - 629th Interested Parties was misleading considering the Ex parte Applicants believed That the only factors That would determine the cash equivalent values of their accrued pensions were those published in the booklet in the booklet of January 1996. c.However, the Ex parte Applicants used new factors That led to a reduction of their benefitsd.The Ex parte Applicants used incorrect actuarial factors in computing cash values for both deferred pensioners and the commuted values for immediate pensioners.e.The 1st - 629th Interested Parties were entitled to cost of living adjustments under the Voluntary Early Retirement Scheme, housing allowance as provided under Rule 4 of the 16th July 1999 TDR and future increase in their pension payments in accordance with Rule 62 of the Rules of General Application of the 16th July 1999 TDR.f.The Commissioner of Income Tax had no authority to bypass the express provisions of Rule 22(2)(c) of the TDRs and allow the Bank to recover the surplus. Therefore, the transfer of the surplus to the Bank was not done within the confines of the governing laws and TDR.

17. The Tribunal allowed the Appeal and ordered the Ex parte Applicants to re-calculate and pay the 1st - 629th Interested Parties lump sum benefits commuted lump sum and pension) taking into account actuarial factors contained in Annexures 3 and 8 of the memorandum of appeal, cost of living adjustments, housing allowance and future increases and payment.

18. The judgment has precipitated the instant application wherein the Applicant is seeking the following orders:1. An order of Certiorari to remove into this Honourable Court and quash the decision contained in the judgment and orders of the Retirement Benefits Appeals Tribunal in Civil Appeal No. 8 of 2021: Abdalla Osman & 628 Others vs. The Retirement Benefits Authority & 11 Others which judgment is dated 28th April 2022, the same having been granted in contravention of the law and the Constitution of Kenya, 2010;2. An order of Prohibition to prohibit the 1st Respondent from conducting any further proceedings or any further dealing with respect to Civil Appeal No. 8 of 2021: Abdalla Osman & 628 Others vs. The Retirement Benefits Authority & 11 Others pursuant to the judgment dated 28th April 2022, whether by way of any further order, enforcement or otherwise whatsoever;3. The costs of and occasioned by this Application be provided for.

19. This Application is supported by the statement pursuant to Order 53 Rule 1(2) of the Civil Procedure Rules 2010 and the affidavit sworn by Fred Waswa verifying the statement and the annexures thereto filed on 6th July 2022.

20. The following pleadings and documents have been filed by the parties to these proceedings;a.Chamber Summons dated 6th July 2022 and filed under Certificate of Urgency;b.Statement dated 6th July 2022;c.Verifying Affidavit sworn by Mr. Fred Waswa on 6th July 2022 together with the annexures thereto;d.Substantive Notice of Motion dated 16th July 2022;e.1st Respondent's Replying Affidavit sworn by Fred Gekonde on 16th November 2022;f.1st - 629th Interested Parties' Response to Statutory Statement dated 29th August 2022;g.1st - 629th Interested Parties' Replying Affidavit sworn by Grace Njeri Ndirango on 29th August 2022 and the annexures thereto; andh.630th Interested Party's Replying Affidavit sworn by John Felix Munene Kimathi Gakunu on 20th September 2022.

Ex-parte applicants' case 21. The Application before this court is dated Notice of Motion dated 16th July 2022. It is supported by the statutory statement and the Affidavit FRED WASWA the Administrator to the Standard Chartered Kenya Staff Benefits Scheme, a Retirement Benefits Scheme established by a Trust Deed Dated 3rd day of June 1975 as amended variously by amendments dated 2nd January 1976, 30th July 1979, 15th April 1987, 12th September 1987, 1st March 1996, 1st June 1998, 16th July 1999, 23rd November 1999 and 1st July 2006.

22. By way of the history, he informs the court That a Trust Deed dated 3rd June 1975 (hereinafter referred to as "the 1975 Trust Deed"), the predecessor of the 1st ex-parte Applicant (Standard Bank Limited and hereinafter referred to as the 'Bank') established a trust fund for purposes of providing pensions on retirement and other benefits for and in respect of such of its present and future employees in Kenya as shall become eligible under the provisions of the Trust Deed and the Rules made thereunder and as amended or modified from time to time (hereinafter referred to as "the 1st Scheme").

23. Pursuant to the terms and conditions of the 1975 Trust Deed, the 1st Scheme was established to be managed and administered pursuant to such powers and provisions as are contained in the said Trust Deed and in the Rules set forth to the Schedule thereto or alterations or addition made thereto from time to time.

24. The 1975 Trust Deed established a Defined Benefit Scheme for the existing and future employees of the Bank, to be controlled and managed by the Trustees on an irrevocable trust as specified therein and subject to such limitation as was specified in Trust Deed as amended or modified from time to time.

25. Effective 1st January 1999, the Bank, with the sanction of the Trustees of the 1st Scheme, established a new Defined Contribution Scheme as a separate section of the 1st Scheme, under the existing trust arrangement, governed by the existing Trust Deed and Rules.

26. The new Defined Contribution Scheme section was set up to provide pension benefits on a defined contribution basis, for the active employed members of the fund as at the date. Effective from the same date, all active employed members of the 1st Scheme transferred their membership to the newly established defined contribution section of the 1st Scheme. Further, all the subsequent new employees of the Bank were also eligible to join the defined contribution scheme established as aforementioned.

27. All other members of the 1st Scheme (being pensioners and deferred pensioners) at the effective date (1st January 1999) did not transfer their pension or deferred pension to the new defined contribution section but remained in the defined benefit section of the 1st Scheme with their benefits which had crystalized at the time they had left the bank on the same terms and conditions and without any loss.

28. On the 1st of July 2006, the Bank, by a trust deed of even date, established the Standard Chartered Kenya Staff Retirement Benefits Scheme (hereinafter referred to as "the 2nd Scheme") to commence on 1st January 2006. The 2nd Scheme was established with the agreement of the eligible employees of the Bank, to be operated and managed as a Defined Contributory Scheme, the Trustees therein specified in accordance with the Trust Deed and subject to and in compliance with the Retirement Benefits Act, 1997.

29. Following the establishment of the 2nd Scheme, the defined contribution section of the 1st Scheme was effectively transferred to the 2nd Scheme and as such, the 1st Scheme was deemed to have become redundant on the grounds That it was incapable of taking up any new members and instead, all new eligible employees of the Bank would effectively become members of the 2nd Scheme. The 1st Scheme, therefore, remained active only for purposes of honouring its obligations to the then existing pensioners and deferred pensioners.

30. He says That he knows of his knowledge That by the Retirement Benefits Act No. 3 of 1997 hereinafter referred to as "the Act), Parliament enacted a statute to form the basis, thereafter, for the regulation, supervision and promotion of retirement benefit schemes set up in Kenya. The Act came into effect on 20th November 1997 and established the Retirement Benefits Authority (hereinafter referred to as "the Authority" or "the 630th Interested Party") to be in charge of regulation of all retirement benefits schemes, which thereafter had to be registered under the Act and to operate within the provisions of the Act and the regulations made thereunder, which, among others, provided That such schemes be established under an irrevocable trust to be managed by the trustees, managers, administrators and custodians.

31. Pursuant to the Act, the role of the sponsor, in this case, the Bank, was limited to the contribution in accordance with the trust deed and rules, the Act and the regulations made thereunder.

32. Any member dissatisfied with the decision of the manager, administrator or trustee of a scheme was conferred a right and entitlement to apply for review of such decision to the Chief Executive Officer of the Authority and if dissatisfied with the decision of the Authority on any matter under the Act then, be at liberty to appeal to the Retirement Benefits Appeals Tribunal established under the Act.

33. The proceedings herein arise out of a decision by the Tribunal in exercise of its powers pursuant to Sections 48 and 49 of the Act. This Honourable Court has supervisory jurisdiction over any body or authority exercising a judicial or quasi-judicial function other than the High Court and other superior courts under the provision of Article 165(6) of the Constitution of Kenya 2010.

34. The perimeters of judicial review were visited by Honourable Mr. Justice G. V. Odunga (as he then was) in the case of Republic -vs- The Secretary County Public Board & Another Ex parte Hulbai Gedi Abdille Judicial Review Application No. 271 of 2014 [2015] eKLR where he observed as follows: -“34. At this stage, it is important to revisit the parameters of judicial review jurisdiction. The said parameters were set out by the Court of Appeal in Municipal Council of Mombasa -vs- Umoja Consultants Limited, Civil Appeal No. 185 of 2001 in which it was held That:"Judicial Review is concerned with the decision-making process, not with the merits of the decision itself; the Court would concern itself with such issues as to whether the decision makers had jurisdiction whether the personal affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. The court should not act as a Court of Appeal over the decider which would involve going onto the merits of the decision itself such as whether there was or there was not sufficient evidence to support the decision making".At para 36, His Lordship went further and stated thus;"It must be remembered That judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process. It purpose is to ensure That the individual is given fair treatment by the authority to which he has been subjected".(See R -vs- Secretary of State for Education and Science Ex parte Avon County Council [199111 ALL ER 283 at 285)

35. In the case of Timotheo Makenge vs. Manunga Ngochi Civil Appeal No. 25 of 1978 [19781 eKLR, the Court of Appeal stated the following: -“The High Court has supervisory jurisdiction to review the decision of a quasi-tribunal even if the decision is expressed to be final."

36. Flowing from the above decisions, the Ex-parte Applicants submit That this Honorable Court has the jurisdiction and the power to hear and determine the Judicial Review Application filed herein.

37. The proceedings before the Tribunal commenced by way of an Appeal from the decision of the Authority dated 22nd April 2021. The Appellants filed a Memorandum of Appeal dated 19th May 2021 accompanied by a Statement of Facts of the same date together with annexures.

38. The Appeal proceeded by way of written submissions, and on the date fixed for hearing, the Tribunal granted 30 minutes to each of the parties' advocates for highlighting submissions. The said submissions were predicated on the pleadings and statements filed before the Tribunal by the parties.

39. Notwithstanding That, the Ex-parte Applicants' Counsel raised the issue of the probative value of the documents which had been filed through the statement in support of the Appeal and signed by the Advocates for the Appellants on the following terms: -“The first issue is about the wrong actuarial factors we have seen, and it is before you in annexure 4 actuarial factor. We have seen and it is before you Annexure 4 of the Appeal, at page 96 this is a report we have been told That it has been prepared by Leslie Okudo. Leslie does not identify who he is, is he a registered actuary?This Tribunal will be faced with problem That the documents annexed, and their source are not indicated, for example annexure 8. The least we would expect is at least it should have a logo the same thing applies to annexure 7".The Tribunal nevertheless disregarded the issue and failed to address the concerns raised by the said counsel with respect to the probative value of the documents.

40. The powers of the Tribunal are expressly granted by Section 49 of the Act which provide as follows: -“Section 49 Powers of Appeals Tribunal(1)On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath and affirmation and to call for the production of books and other documents.(2)Where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason so to do, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories and administered to make a full and true reply to the interrogatories within the time specified by the Tribunal.(3)In its determination of any matter, the Tribunal may take into consideration any evidence which it considers relevant to the subject of an appeal before it, notwithstanding That the evidence would not otherwise be admissible under the law relating to admissibility of evidence".The imperative under the said provision is to require evidence to be adduced only through witnesses under oath.

41. According to them, the alternative avenue available to the Tribunal is to receive evidence by affidavit where the Tribunal considers it desirable to avoid expense or delay or any other special reason so to do. Affidavit evidence can only be reverted to after judicious consideration and in That event, interrogatories have to be administered. Neither was applied in this case.

42. At the heart of the provision of Section 49 is the requirement for the evidence to be considered by the Tribunal to be given only under oath through a witness or affidavit with interrogatories. Either way, the evidence is subjected to cross examination or interrogatories as applicable, neither of which was applied or considered in this case and in so doing, the Tribunal in rendering a decision in the absence of either sworn evidence or affidavit evidence acted in excess of the powers granted to it by section 49 of the Act.

43. The Ex-parte Applicants submit That it is trite law That statements and pleadings are not evidence. They are mere statements without probative value and can only acquire the status of evidence when adopted by a witness upon being sworn, adduced and cross examined. That is what is contemplated under section 49(1) and (2) of the Act. In Musikari Kombo vs. Royal Media Services Ltd. Civil Case No. 89 of 2011 [20141 eKLR Justice G.V. Odunga adopted the dicta in Consolata Hospital Mathari vs. Dr. Bianka Matens Nyeri HCCA No. 17 of 2004 where it was held That there was no probative value in a witness statement That had been produced by an unsworn witness and as such was a mere statement. It was held inter alia That: -“From the record there is no indication That witnesses testified on oath. It is possible they may have testified on oath but the learned magistrate inadvertently failed to record. However, this is a court of record and there is no room for speculation and or conjecture. Going by the record it can be held That perhaps the witnesses testified without being sworn. The effect of the evidence not given on oath is That it amounts to no more than a mere statement of no probative value to the case... The fact That this was not an issue canvassed before the court did not occasion any injustice and preiudice to any of the parties since the law is settled That evidence must be taken on oath unless for children of tender years as well as those who choose to be affirmed.Submissions on this issue by counsel would not have made any difference. In any event the issue in focus goes to the jurisdiction and the court has jurisdiction to address the same suo moto. On this issue alone the appeal ought to succeed."

44. The documents and all annexures filed by the 1st to the 629th interested parties were thus not produced in evidence by either a witness testifying under oath or by affidavit evidence and as such do not have any probative value. Whereas a document speaks for itself, those filed by the Appellants lacked identification of the source of the said document, its authors and the dates when they were made. In spite of the authenticity and veracity of the documents having been challenged by the Ex-parte Applicants, the Tribunal proceeded to find as follows: -“152. It is therefore curious That 2nd - 12th Respondents now seek to persuade this Tribunal That no evidence was availed to support the Appellants assertions of what they had to be the correct computation of their respective rights.153. This Tribunal has perused the record and examined all the evidence and in so doing noted That indeed, the Appellants produced a booklet dated January 1996 (Annexure 3 in the Appellant's Bundle of Documents) and a copy of the Standard Chartered Bank Kenya Limited lumpsum conversion Factors (annexure 8 in the Appellants bundle of documents) and an illustration of one of the appellants computations on whom those conversions facts were applied (annexure 9).154. The appellant produced a table of conversion factors (annexure 7) which they allege are new reduced conversion".All the documents the Tribunal referred to were not produced either through evidence or through an affidavit as required by Section 49 of the Act.

45. The Tribunal proceeded to find That the 2nd Respondent had used wrong actuarial factors based on the contents of the annexure marked 7. It further found That the lumpsum conversion factors ought to have been 9% interest rate and 4% CPI as contained in the annexure marked 8 and without sworn evidence or affidavit.

46. It is the Ex-parte Applicants case That, the determination of the Tribunal was predicated on the Memorandum of Appeal, the statement and documents filed pursuant thereto. It should be noted That the filing of the said documents was as provided by the Retirement Benefits (Tribunal) Rules 2000 (hereinafter "the Rules* which by the provisions of Rules 5 and 6, provide the documents required for an appeal before the Tribunal and goes to state That the appeal shall be entered by presentation of a Memorandum of Appeal accompanied by a statement. The Statement is, therefore, intended to be a pleading and not evidence as contemplated under section 49 of the Act.

47. Reliance is placed on the case of CMC Aviation Limited -vs- Cruisair Limited (No. 1) [1976 – 8011 KLR 835, Madan J (as he then was) expressed himself thus: -“Pleadings contain the averments of the parties concerned or anything until they are proved or disapproved or there is an admission of them or any of them by the parties they are not evidence and no decision could be founded upon them.Proof is the foundation of evidence. Evidence denotes the means by which and alleged matter of fact the truth of which is submitted for investigation until the truth has been established or otherwise they remain unproven. Averments in no way satisfy for example, the definition of "evidence" as anything That makes clear or obvious; ground for knowledge indication or testimony in That which makes truth evident or renders evidence to mind That it is truth."

48. In the case of Robert Ngande KaThathi vs. Francia Kiruwa Kitonde High Court Civil Appeal No. 57 of 2017 [20201 eKLR the Honourable Mr. Justice G. Odunga approved the following passage from the decision of Kenneth Nyaga Mwige -vs- Austin Kiguta & 2 Others (2015) eKLR:“23. In the instant case, we are of the view That the failure or omission by the Respondent to formally produce the documents marked for identification being MFI1, MFI2 & MFI3 is fatal to the Respondent's case. The documents did not become exhibits before the trial court, they were simply being marked for identification and they have no evidential weight. The record shows That the trial court relied on the document MFI2 That was marked for identification in its analysis of the evidence and determination before the court. We are persuaded by the dicta in the Nigerian case of Michael Hausa -vs- The State (1994) 7 – 8 SCJN 144 That a document marked for identification is not part of evidence That a trial court can use in making its decision.24. In our view, the trial judgment in evaluation the evidence on record and basing his decision on MFI2 which was a document not formally produced as an exhibit. It was a fatal error on the part of the Respondents not to call any witnesses to produce the documents marked for identification."

49. It argues That annexures marked 3, 7, 8 and 9 relied upon by the Tribunal in arriving at their decision were attached to the statement of facts but were not produced either through sworn evidence or through an affidavit as required by Section 49 of the Act. The Tribunal wholly based their determination and orders on the said documents. This reliance renders the proceedings and the Tribunal's judgment null and void. Further, in relying on the said documents, the Tribunal acted ultra vires its powers under Section 49 of the Act.

50. They have also referred the court to the English case of Council of Civil Service Union & Others vs. Minister for Civil Service [19841 3 ALL ER 935 the House of Lords, Lord Diplock had the following to state at page 951(a): -“have described the third head as procedural impropriety rather than failure to observe basic rules of natural justice of failure with procedural fairness towards a person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules That are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of justice." (Emphasis ours)

51. In this case, the Tribunal failed to observe the provisions of Section 49(1) and (2) of the Act thereby committing grave and irreversible procedural irregularity.

52. The 1st Respondent is a creature of statute and is established by Section 48 of the Act. As a creature of statute, it has to exercise its jurisdiction in accordance with Section 49 of the Act. To the extent That it has failed to comply with the provisions thereof and acted in excess of or outside the powers donated to it by statute, its actions and judgment are without jurisdiction and therefore a nullity.

53. In the result, the judgment of the Tribunal should be reviewed and set aside by this Honourable Court in exercise of its supervisory jurisdiction on grounds That it is ultra vires the Act and unlawful: -a.On the grounds That the impugned judgment was arrived at without evidence as required by section 49 of the Act, the proceedings having been conducted without sworn evidence given by witnesses or through affidavits. Further, the impugned judgment was predicated on documents of doubtful probative value which were in the event not produced before the Tribunal at the hearing; andb.the judgment was issued without jurisdiction, the Tribunal having failed to comply with the requirements of section 49(1) and (2) of the Act and therefore rendering the same null and void.

54. It is also the Applicants case That the tribunal is inconclusive and incapable of enforcement since in its judgment, the Tribunal ordered the Trustees to re-calculate and pay to the Appellants lumpsum benefits (commuted lumpsums and pension) taking into account the 16th July 1999 Trust Deed and Rules.

55. Having so ordered the Tribunal further ordered the Trustees to re-calculate and pay to the Appellants lumpsum benefits (commuted lumpsum and pension) taking into account the actuarial factors as contained in annexures 3 and 8 of the Memorandum of Appeal (sic), being part of the documents filed before the Tribunal, and additionally pay the cost of living adjustments, housing allowance, and future increases and payments. Further, the Tribunal ordered the Bank to supervise and file in the Tribunal, compliance therewith within 60 days.

56. The said orders did not emanate from the pleadings either by way of Memorandum of Appeal or Statement of Facts.

57. Whereas the Regulations make no provision for what ought to be contained in a judgment by the Tribunal, the Rules, and more precisely Rule 12, adopt the Civil Procedure Rules, 2010 on matters not governed by the said Rules. Order 21(7) of the Civil Procedure Rules, 2010 requires a decree to agree with the judgment.

58. A "decree means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final."

59. The Applicants have also referred the court to the Court of Appeal judgment in the case of Kenya Airports Authority vs. Mitu-Bell Welfare Society & 2 Others Civil Appeal No. 218 of 2014 [20161 eKLR wherein it rendered itself thus:“We have stated That a judgment brings to an end the jurisdiction of the court That delivers the same. In our considered view, the concept of partial judgment or interim judgment after hearing of the parties is unknown to the Kenyan law.A court of law in delivering its judgment must determine the rights and liabilities of parties. Save for the limited exceptions provided for in law, delivery of judgment marks the end of litigation and marks the end of jurisdictional competence of the court. If a court is inclined to grant or make interim orders, it is within its powers to do so. However, a court cannot deliver judgment and invite further pleadings to be filed or reserve contested matters for its consideration and determination."

60. In the case of Anthony Francis Wareham t/a Wareham & 2 Others vs. Kenya Post Office Savings Bank Civil Appeal Nos. 5 & 48 of 2002 (Consolidated) [20041 eKLR, the Court of Appeal stated That a court should not make findings on unpleaded matters or grant relief which is not sought by a party in the pleadings.

61. According to the Applicants it is clear That while rendering itself in its impugned judgment, it has what the Court of Appeal referred to as a 'partial judgment, a clear manifestation That it failed to render a final decision on the dispute between the parties. The judgment instead required the parties to recalculate the lumpsum payment and for the Bank to file a compliance report with the Tribunal within 60 days of the judgment, relief That was not sought by the Appellants.

62. The Appellants had in their Appeal sought a defined sum as judgment against the Bank and Trustees. In an adversarial system as existing in Kenya, no Tribunal has the powers to depart from the pleadings and reliefs sought by the parties and fashion its own relief and therefrom require the parties further to exercise the adjudicative function and process of determining an entitlement by a litigant.

63. The Ex-parte Applicants argue That the 1st Respondent was duty-bound to render a decision effectively and conclusively on the dispute before it. To require the Trustees to compute the benefits the Tribunal in its judgment found were owed to the Appellants and have them paid, the Tribunal abdicated its adjudicative role and delegated it to the Trustees and the Bank who were parties in the proceedings. By so doing, the 1st Respondent acted unlawfully and without jurisdiction and thus rendered its judgment a nullity.

64. Reliance is placed in the case of Telkom Kenya Limited vs. John Ochanda (suing on his own behalf and on behalf of 1996 Former Employees of Telkom Kenya Ltd) [20141 eKLR, the Court of Appeal pronounced itself thus:“There is also the obvious misdirection on the part of the learned Judge in imposing upon the appellant the very obligation That by law resides in the courts to conduct computations and declare the entitlement of claimants before them.It is not a task That can, without a species of violence to the judicial tradition, be placed upon defendants. The assessment of damages is purely a judicial function That cannot be delegated. The Court so held in Kenya Revenue Authority Vs Menginya Salim Murgani (20101 eKLR stating, inter alia:"Both the award and level or quantum of damages is in our view, judicial functions which the superior court cannot rightfully delegate...a judgment must be complete and conclusive when pronounced and therefore it cannot be left to the deputy registrar to perfect it. Assessment of damages is not a ministerial act as envisaged by Order 48 (Currently Order 49) of the Civil Procedure Rules and a direction to "assess" or "calculate" damages would be contrary to the requirements of Order 20 (currently Order 21) of the Civil Procedure Rules because it would be incomplete without assessment and would patently be a nullity."The Court went further to hold That;"We respectfully reject the notion That Article 159(2)(d) of the Constitution and the overriding objectives of Civil Procedure Act and Rules could be invoked to justify a departure from well-used procedure for perfecting declaratory judgments by inviting parties to compute entitlements and the filing of affidavits as happened in this case. We reiterate That it would be a serious abdication of the judicial function were the same to be delegated to the parties who come to the courts for That very determination. Such delegation is a nullity for all purposes and the challenge to the learned Judge's ruling on That score is well-founded and upheld." (Emphasis ours)

65. Over and in addition to the said transgression, the impugned judgment would also require further proceedings and orders for the process to be implemented by the Tribunal as any dispute or disagreements between the parties which may arise as to the computation of benefits would still be for adjudication by the Tribunal after it had rendered the impugned judgment and had become functus officio without any other residual power. Such an action would result in grave procedural impropriety and lead to illegality by the Tribunal's further assumption of appellate power without jurisdiction.

66. To buttress this point, heavy reliance is placed on the Court of Appeal judgment in the case of Mitu-Bell Case (Supra), the Supreme Court rendered itself thus:“….... post-judgment supervision of implementation of judgments is not a function of the trial court. Implementation and execution of judgments is governed by specific rules and it is to these rules That resort must be made."

67. The Applicants want his Honourable Court to quash the judgment of the 1st Respondent as it did not only fail to determine the appeal before it, but also abdicated its statutory function to the litigants to the Bank and the Trustees. The judgment is, accordingly, inconclusive and incapable of performance. In another front, it is the Applicants case That the judgment of the Tribunal is unlawful, arbitrary, unreasonable and/or irrational

68. By its judgment, the Tribunal required the lumpsum payment to be made to the Appellants to be re-calculated by the Trustees in accordance with the judgment under the supervision of the Bank which had to report back to the Tribunal. The Act defines a sponsor as the person who sets up the Scheme. However, by section 40, it places the obligation on the Trustees to ensure That the funds are at all times managed in accordance with the Act, any regulations made thereunder, the Scheme rules and any directions given by the Chief Executive of the Authority.

69. It would be contrary to the Act for the Tribunal to order the Trustees to re calculate the lumpsum benefits on the basis of actuarial factors contained in annexures 3 and 8 filed by the Appellants as well as direct the Bank to supervise the process and file a compliance report as it did in this case.

70. Annexure 3 of the Record was a booklet of unknown date providing for separate actuarial factors between the age of 50 and 55 for male and female (see page 88 of the Record). Among the documents relied upon was Annexure 8 which was an unsubstantiated document entitled the Standard Chartered Bank Kenya Limited lumpsum conversion factors on 9% interest Rate and 4% CPI rate to which the Tribunal added the cost of living adjustment, housing allowance and future increases and payments.

71. The Rules provided for accrued pension at Rule 23, normal retirement at Rule 24, early retirement at Rule 25, deferred pension at Rule 27 and commutation and pension at rule 28. It would not be of assistance to quote the said rules in extenso. The Rules further provided for discretionary lumpsum payment at Rule 29 on the following terms“In their absolute discretion and after consultation with the Employer, the Trustees may where the Pension payable to an employed member on Retirement would be less than an annual amount determined by the Trustees in consultation with the Employer pay to such member in lieu of such pension a lumpsum payment of an amount equal to actuarial value of such pension provided That the lumpsum payment is not greater than the maximum permitted by the Act and the Income Tax Rules. The Trustees may in their absolute discreuum apply une orovision on uns nure to deferred Pensioners"

72. To require the Ex-parte Applicants to compute the benefits of the Appellants both in accordance with the Act, the Regulations and at the same time direct That the same be re-calculated on the basis of the two unsubstantiated documents produced before the Tribunal is unlawful, inherently inconsistent and contradictory.

73. They rely on the case of Associated Provincial Picture House Ltd vs. Wednesbury Corporation [19471 2 AlI ER 680 Lord Greene rendered himself thus:“It is true the discretion must be exercised reasonably. Now what does That mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description for the things That must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd That no sensible person could ever dream That it lay within the powers of the authority." (Emphasis ours)

74. It refers the court to the case of Bukoba Gymkhana Club [19631 EA 478, wherein the court rendered itself thus: -“Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions 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

75. They argue That the 1st Respondent's judgment and consequent directions are neither in line with the provisions of the Act nor its purpose. It violated the principles of reasonableness. The decision was arbitrary and neglected the express provisions of the Act, the Supplemental Trust Deed and the Rules relating to the vesting and computation of benefits with respect to the various categories of former and current employees, who joined in the Appeal.

76. In this case, the Tribunal had to consider the different categories of the employees who include:a.Those who retired under the Voluntary Early Retirement Scheme (VER) and were entitled to benefits under the VER Circular September 1994 and October 1996. b.Members who transferred to the Defined Contribution Scheme.c.Those who were dismissed and had their dispute determined by the Industrial Court in Cause No. 1 - 77 of 1999. d.Those who were not entitled to any benefit under the Trust Deed and the Rules ande.Those who were members of Defined Contribution Scheme and had, pursuant to the Rules of That Scheme, already withdrawn their contribution.

77. Under the Rules of the Supplementary Trust Deed, different categories of members have distinct accrued benefits predicated on whether they have reached normal retirement age, taken early retirement, are deferred pensioners or have received discretionary lumpsum payments.

78. In the event, some of the Appellants were members of the Defined Benefit Scheme or had opted out from the said Scheme under these rules. These considerations anchored the basis for the relief claimed by the said Appellants as pleaded in their Appeal. Despite the said issue having been raised by the Ex-parte Applicants both in pleading and in submissions, the 1st Respondent did not find it necessary to advert to the said issue or make a determination thereon.

79. By its orders, the Tribunal directed That the Appellants be paid lumpsum benefits taking into account the actuarial factors contained in annexure 3 and 8, irrespective of the category to which they fell. Annexure 3 is an undated booklet entitled "copy of SCKAF Pension fund - All you need to know booklet" it provides actuarial factors between the age of 50-55 based on gender.

80. According to the Applicants this is contrary to the provision of Article 27 of the Constitution. It is further a violation of the Act and the Regulations made thereunder. More specifically, the Retirement Benefits (Occupational Retirement Benefits Scheme) Regulations 2002 provides thus under Rule 19: -“(3)the scheme rules shall not provide different pension factors for members employed by the same sponsor unless(a)The difference is based on actuarial considerations(b)The difference is designed to favour members engaged in hazardous occupations, in which event the same pension factors shall apply equally to all members engaged in such occupation and(c)The Authority has approved the difference provided That the Authority shall not approve different factors where the differentiation is based on difference in employees, salaries, wages, gender, rank, seniority at work or any discriminatory factor".The Booklet was not, but even if it had been, it would have failed the illegality test because of its inherently discriminatory basis.

81. The Applicants remind the court That in any event annexure 8 was not admitted in evidence, and even if it had been, it would have had no evidential value having failed to identify its author and the basis upon which lumpsum conversion factor based on 9% Interest rate and 4% CPI rate should apply to any actuarial evaluation and it was not subjected to interrogated by cross-examination.

82. Additionally, the 1st Respondent erred in imposing the obligation on the 1st Ex-parte Applicant to supervise the implementation of its judgment which involved the re-computation of the lumpsum benefits by the Trustees contrary to the autonomy and independence principle conferred by Section 40 of the Act on the Trustees.

83. On the issue of refund of the surplus authorized by the Commissioner of Income Tax, the 1st Respondent merely relied on the statement of facts as filed by the Interested Parties.

84. It is unlawful, irrational and unreasonable for a Tribunal to arrive at a decision without evidence, fail to consider relevant issues in the proceedings and to rely on unlawful or inadmissible facts and documents to arrive at a judgment as the Tribunal did in this case. On That ground, the decision of the Tribunal should be set aside

Whether The Bank And The Trustees Are Entitled To The Reliefs Sought In The Application 85. From the foregoing, the Ex-parte Applicants submit That the 1st Respondent's decision is ultra vires the Act as it entertained an appeal That was not properly before it, having been filed, heard and determined without the production of any evidence in support of the appeal by a Tribunal That exceeded its jurisdiction as an appellate body by providing reliefs not sought in the appeal and against the objectives of The Act by breaching principles of rationality and lawfulness contrary to the provisions of the Act, the Regulation Trust Deed and Rules.

86. The Applicants rely on the case of Esther Victoria Wanjiku Mahoro v Mary Wambui Githini & 3 Others Judicial Review Case No. 6 of 2020 [20211 eKLR, to demonstrate That The Ex-parte Applicants are entitled to the reliefs sought in the Substantive Notice of Motion where in the court observed as follows: -“An order of Certiorari can be made if the Court is satisfied That a tribunal made a decision in excess of its jurisdiction, and further the Court can also issue an order of prohibition prohibiting the said tribunal from proceeding with the said proceedings."

87. Reliance is also placed on the decision of the Court in Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, wherein the Court rendered itself thus:“The Order of "Prohibition" issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi's Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.""Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of That power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."

88. They argue That the Tribunal offended Article 47(1) of the Constitution which grants a fundamental right to every person to have a fair administrative action That is expeditious efficient, lawful reasonable and procedurally fair.

89. In the Supreme Court case of Mitubell Welfare Society -Vs- The Kenya Airports Authority Petition No. 3 of 2018 [20211 KESC 34 KLR11 the Court had the following to state:“122. ..we hasten to add That, interim reliefs, structural interdicts, supervisory orders or any other orders That may be issued by the courts have to be specific, appropriate clear, effective and directed at the parties to the suit or any other state agency with a Constitution or Statutory mandate to enforce the order."

90. They are inviting the court to be guided by Section 11 of the said Act, in granting the reliefs sought which are amenable to judicial review.

91. The Applicants are in the alternative praying That the appeal then be remitted for reconsideration by the Tribunal with directions That the Tribunal observe the provisions of the Act, the Regulations, the Trust Deed and the Rules made thereunder in the event the prayer for the order of prohibition as prayed is not allowed.

On The Issue Of Costs 92. The applicants invite the court to be guided by Section 27 of the Civil Procedure Act, Cap 21, Laws of Kenya which provides That costs should follow the event. That is to say, the successful party should be awarded its costs and by the guidance by Justice Kuloba in his book, Judicial Hints on Civil Procedure, Vol. 1 at p. 99 as follows:“The first question is what is meant by "the event" in the proviso to subsection (1) of this section? The words "the event" mean the result of all the proceedings incidental to the litigation. The event is the result of the entire litigation. .... Thus the expression "the costs shall follow the event" means That the party who on the whole succeeds in the action gets the general costs of the action. (Emphasis provided)

93. They argue That the costs continue to be met by the members of the Fund to the prejudice of the majority who a not parties to these proceedings.

The Respondents’ case 94. In opposing the Application, the Respondents filed a Replying Affidavit sworn by one Fred Gekonde on 16th November, 2022. According to the Respondents are seeking to challenge the merits of the decision by the 1st Respondent. Challenging the merits of the said decision does not fall within the ambit of the judicial review Court.

95. It is their case That the mode of hearing adopted during the appeal before the Retirement Benefits Appeal Tribunal (1st Respondent) was consented to by all the parties, and the ex-parte Applicants are therefore barred both by Deed (their written submissions) and their conduct (their oral submissions) from assuming inconsistent positions on the same, and/or alleging any violation when they consented to the process and fully participated in the same.

96. Section 49 of the Retirement Benefits Act provides That: -1. On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.2. Where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason so to do, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories are administered to make a full and true reply to the interrogatories within the time specified by the Tribunal.3. In its determination of any matter, the Tribunal may take into consideration any evidence which it considers relevant to the subject of an appeal before it, notwithstanding That the evidence would not otherwise be admissible under the law relating to admissibility of evidence.4. The Tribunal shall have power to award the costs of any proceedings before it and to direct That costs shall be paid in accordance with any scale prescribed for suits in the High Court or to award a specific sum as costs.5. All summons, notices or other documents issued under the hand of the chairman of the Tribunal shall be deemed to be issued by the Tribunal.6. Any interested party may be represented before the Tribunal by an advocate or by any other person whom the Tribunal may, in its discretion, admit to be heard on behalf of the party.

97. It is their case That after examining the said section, the Tribunal was of the view That it is not strictly bound by the provisions of Section 107 of the Evidence Act and That the consideration on whether or not to rely on any evidence tabled before it is the relevance and probative value of the evidence in question.

98. The Tribunal was of the view That the information made available to the Appellants was misleading since the 2nd – 12th Respondents allowed them to believe That the only factors That would determine the cash equivalent values of their accrued pensions were those published in the booklet of January 1996. The Tribunal therefore found That there was misrepresentation, concealment and non-disclosure of the actual actuarial factors the 2nd – 12th Respondents intended to use in calculation of the Appellants benefits from those they provided to the Appellants at the time material to the dispute.

99. They argue That a court/tribunal/ Board has a wide discretion when it comes to framing issues for determination. Order 15 Rule 2 of the Civil Procedure Rules 2010 provides That,“the court may frame the issues from all or any of the following materials:a.Allegations made on oath by the parties or by any persons present on their behalf, or made by the advocates of such parties.b.Allegations made in the pleadings or in answers to interrogatories delivered in the suit.c.The contents of the documents produced by either party.

100. They argue Order 15 Rule 2 allows a court, tribunal or Board to consider any issue That may not have been raised by either of the parties in the case. It relies on the case of Veronica Gathoni Mwangi & Another Vs Samuel Kagwi Ngure& Another [2020] eKLR. The Appellant had raised the following grounds of Appeal: -a.That the Learned magistrate erred in law in dismissing the Plaintiff’s case on issues not pleaded by the parties.b.That the Learned magistrate erred in law in dismissing the Plaintiff’s case on a technicalityc.That the Learned Magistrate erred in law in framing his own issues.d.That the Learned Magistrate erred in law in dismissing the Plaintiff’s case while the issue of liability had been agreed and recorded by consent of the parties.e.That the Learned Magistrate erred in law in failing to award the estate of the deceased.

101. The court on the other hand analyzed the issues for determination as follows: -a.Whether the trial Court had the jurisdiction to frame and determine its own issues.On the issue as to whether the trial court had the jurisdiction to frame and determine its own issues, the court held That:“10. I have considered the appeal fully by reading through the memorandum of appeal herein, the proceedings and judgment of the lower court together with the cited statute and case law. On the outset I agree with the appellant on the objective of pleadings in an adversarial system That the court can only lawfully determine issues That are specifically pleaded and proved before it and That the court cannot base its decision on an unpleaded issue. This has been restated times without number but we take it from the case of Gandy v. Caspair Air Charters Ltd. (1956) 23 EACA 139 where Sir Sinclair, V-P, said:-“The object of pleadings is, of course, to secure That both parties shall know what are the points in issue between them, so That each may have full information on the case he has to meet and prepare his evidence to support his own case or to meet That of his opponent. As a rule relief not founded on the pleadings will not be given.”11. However, there are exceptions to That rule even under the strict adversarial system. The exception was noted in the Court of Appeal case of Nyaga Cottolengo Francis v Pius Mwaniki Karani [2017] eKLR where the Court stated as follows:“ the notion That the courts are mere bystanders in adversarial litigation process has been rendered blurry by amendments to the Civil Procedure Act in Sections 1A and 1B as well as the Appellate Jurisdiction Act in Sections 3A and 3B which give the courts considerable latitude to intervene with a view to achieving the overriding objective of civil litigation, That is to say, the just, expeditious, proportionate and affordable resolution of civil disputes in Kenya. Thus, the courts have a duty and will play their part in the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of the available judicial and administrative resources, the timely disposal of all the proceedings before the Court, at a cost affordable by the respective parties, and with the use of suitable technology”12. Under Order 15 Rule 1 of the Civil Procedure Rules, an issue arises when one party makes a material proposition of fact or law which is denied by the other party. Order 15 Rule 2 which deals with the framing of issues provides as follows;2)The court may frame the issues from all or any of any of the following materials-a)Allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates of such parties;b)Allegations made in the pleadings or in answer to interrogatories delivered in the suit;c)The contents of documents produced by either party.” (Emphasis added)13. From the foregoing, it is clear That the trial Court had the right to exercise its discretion as provided under order 15 rule 2 of the Civil Procedure Rules to frame its own issues as derived from the contents of the documents produced by either party as was the case herein.”

102. They rely on the authority to sort out the issue as to whether he 1st Respondent had the power to frame its own issues. Based on the Retirement Benefits Act No. 3 of 1997, the decision of the Retirement Benefits Appeal Tribunal is final and not open to challenge by way of Judicial Review. In the premises, this Honourable Court lacks jurisdiction to sit on appeal against the said decision of the Tribunal. This Honourable Court is barred from assuming jurisdiction by craft when the empowering statute is very clear in its provisions. The Applicant ought to have filed a Civil Appeal before the High Court as opposed to filling the present judicial review application.

103. They argue That judicial review is concerned with the decision-making process and not the merits of the decision itself as was held by this Honourable Court’s decision in the case of Republic vs Public Procurement Administrative Review Board & Another Ex-Parte Express Ddb Kenya Limited [2018] eKLR where it was held thus;12. Judicial review is about the decision making process, not the decision itself. The role of the court in judicial review is supervisory. It is not an appeal and should not attempt to adopt the 'forbidden appellate approach' Judicial review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether That decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure That it has been lawfully exercised.13. Judicial review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere. As was held in Republic vs Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji:“Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows That where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore, judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant. "

104. The Respondents rely on the case of Pastoli Vs. Kabale District Local Government Council and Others [2008] 2 EA 300 where it was held:“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 or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...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 a 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 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 legislative Instrument by which such authority exercises jurisdiction to make a decision.”

105. In Republic Vs. Kenya Revenue Authority Ex Parte Yaya Towers Limited [2008] eKLR it was held That;“the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case That the purpose of the remedy of Judicial Review is to ensure That the individual is given fair treatment by the authority to which he has been subjected and That it is no part of That purpose to substitute the opinion of the judiciary or of the individual judges for That of the authority constituted by law to decide the matter in question. Unless That restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power.”

106. Reliance is also placed on the case of Republic V Kenya Revenue Authority & Another Ex-Parte Bear Africa (K) Limited where Majanja J. quoting with approval the decision of Githua J in Republic V Commissioner of Customs Services Ex-Parte Africa K-Link International Limited Nairobi HC MISC. JR NO. 157 OF 2012] eKLR held as follows;“It must always be remembered That judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself. once it has been established That a statutory body has made its decision within its jurisdiction following all the statutory procedures, unless the said decision is shown to be so unreasonable That it defies logic, the court cannot intervene to quash such a decision or to issue an order prohibiting its implementation since a judicial review court does not function as an appellate court. The court cannot substitute its own decision with That of the Respondent. Besides, the purpose of judicial review is to prevent statutory bodies from injuring the rights of citizens by either abusing their powers in the execution of their statutory duties and function or acting outside of their jurisdiction. Judicial review cannot be used to curtail or stop statutory bodies or public officers from the lawful exercise of power within their statutory mandates.”

107. The Respondents argue That the Applicants have failed to prove how the 1st Respondent acted beyond its jurisdiction, in an unfair manner, or in an illegal manner and as such its claim must fail and the Court cannot be called to disturb a decision which has been arrived at in due exercise of the powers of the Tribunal conferred by statute as set out in The Halsbury‟s Laws of England Vol. 1(1) at Para. 74 as follows:“If a body arrives at a decision which is within its jurisdiction in the narrow sense and does not commit any of the errors which go to jurisdiction in the wide sense, the court will not quash its decision on an application for judicial review even if it considers the decision to be wrong.”

108. They refer the court to the Halsbury‟s Laws of England treatise, 4th Edition Vol 1(1), para. 86 as follows:“A decision of a tribunal or other body exercising a statutory discretion will be for irrationality, or as often said, Wednesbury unreasonableness… However, it is well established as a distinct ground of review That a decision which is so perverse That no reasonable body, properly directing itself as to the law to be applied could have reached such a decision will be quashed. Ordinarily, the circumstances in which the courts will intervene to quash decisions on this ground are very limited. The Courts will not quash a decision merely because they disagree with it or consider That it was founded on a grave error of judgment, or where there was some material upon which the decision maker could have formed the view he did.”

109. Additionally, the Halsbury‟s Laws of England treatise, 4th Edition Vol 1(1), para. 84 states as follows:“A discretionary power must be exercised for proper purposes which are consistent with the conferring statute. The exercise of such a power will be quashed where, on a proper construction of the relevant statute, the decision maker has failed to take account of relevant considerations or has taken into account irrelevant considerations. In some statutes, some or all of the relevant considerations may be express; where the statute is silent or the express considerations are not exhaustive, the courts will determine whether any particular consideration is relevant or irrelevant to the exercise of the discretion by reference to the implied objects of the statute.The exercise of discretion will not be quashed for failure to have regard to a relevant matter or for taking account of an irrelevant matter where the court is satisfied That the relevant decision would have been the same had there been no error in the decision-making process.”

110. Based om the foregoing, the Respondents argue That, the Applicants have failed to demonstrate That the decision by the 1st Respondent was so irrational That no reasonable body properly directing itself as to law to be applied could have reached such a decision.

111. It is the Respondents case That the order to prohibit the 1st Respondent from conducting any further proceedings or any further dealing with respect to Civil Appeal No. 8 of 2021: Abdalla Osman & 628 others –Vs- the Retirement Benefits Authority & 11 Others pursuant to the judgement dated 28th April, 2022 will be punitive and would bar any aggrieved party from approaching the Tribunal.

The 1-629th Interested parties case 112. NJERI NDIRANGO in her affidavit on behalf of the 1st -629th Interested party opposes the Application.

113. By a letter dated 7th July 2020 The Applicants expressly and unequivocally admit That the Interested Parties complaint related to the computation of the pension benefits payable to them after the scheme metamorphosed in 1999.

114. It is the interested parties case That the Retirement Benefits Act merely requires an appeal to the Chief Executive Officer of the Retirement Benefits Authority on any dispute, elating to pension benefits to be in writing, but does not provide any mandatory forms for lodging the appeals.

115. It is their case That the Chief Executive Officer of the Retirement Benefits Authority confirmed That the Interested Parties appeal was in writing and That from the documents presented to him by the Interested Parties he was able to Crystalize the complaint into five issues That related to the factors to be considered in the computation of the pension benefits payable to the Interested Parties.

116. That under the cover of the aforesaid letter dated 22nd April 2020 the Chief Executive Officer of the Retirement Benefits Authority ruled That the Interested Parties; complaint lacked merit and proceeded to dismiss the same.

117. The Interested Parties being aggrieved with the ruling delivered by the Chief Executive Officer of the Retirement Benefits Authority on their complaint opted to exercise the right of appeal conferred upon them under Section 48 of the Retirement Benefits Act No 3 of 1997, when they lodged Retirement Benefits Appeal Tribunal Civil Appeal No. 8 of 2021 - Abdalla Osman & 628 others vs. Retirement Benefits Authority & 11 others.

118. According to her Rules 5 and 6 of the Retirement Benefits (Tribunal) Rules 2000 prescribe the form to be adopted when preparing a Memorandum of Appeal, the Interpretation & General Provisions Act (Cap 2) Laws of Kenya expressly stipulates That a Memorandum of Appeal shall not be rendered void on account of any deviation from a prescribed form which does not affect the substance of the instrument or document, or which is not calculated to mislead.

119. On 20th January 2022 the Applicants, the Interested Parties and Retirement Benefits Authority agreed to proceed with the hearing of the appeal before the Tribunal based on the filed documents and by way of written submissions, whereupon the Tribunal granted the parties leave to file their written submissions.

120. It is their case That the Retirement Benefits Act has granted the Tribunal wide unfettered discretion on how to conduct hearings and take evidence when dealing with appeals in order to enhance its expeditious and cost-effective determination of matters.

121. They argue That the Tribunal acted intra vires when it proceeded with the hearing of the appeal in compliance with the consent recorded on 20th January 2022 by all the Parties and the Applicants are estopped and precluded by conduct and deed from denying the procedural propriety of the conduct of the hearing of the appeal by the Tribunal, and the merits and legality of the resultant judgment of the Tribunal dated 28th April 2022 and the Applicants have failed to demonstrate That the Tribunal exercised wrongly the wide unfettered discretion conferred upon it by both Retirement Benefits Act and the “Oxygen provisions”.

122. The Applicants and the Interested Parties filed written submissions pursuant to the directions given by the Tribunal on 20th January 2022 and the Applicants did not take issue with the directions given by the Tribunal with regard to how the appeal proceeded by way of submissions.

123. Further on 7th April 2022 the Applicants highlighted their submissions.

124. The Applicants rights under Articles 47 and 50 of the Constitution were duly upheld by the Tribunal at all stages during the hearing and determination of the Interested Parties appeal when:a.They were served with the Interested Parties· appeal and given opportunity to answer to it;b.They were given adequate time and facilities to prepare, file and prosecute their defence:c.They were given opportunity to be present during the hearing and determination of the appeal:d.They were allowed to choose and be represented by an Advocate during the hearing and determination of the appeal:e.They were served in advance with and given access to the documents That the Interested Parties intended to rely in the appeal:f.They were given opportunities to challenge the evidence relied on by the Interested Parties,g.They were given a fair hearing by an independent and impartial tribunal established under the law;h.The Interested Parties' appeal was subjected to a public trial;i.The appeal began and concluded without unreasonable delay;j.The appeal was conducted in an expeditious, efficient. lawful. reasonable and procedurally fair manner. Andk.The Tribunal gave written reasons for the decision it made on the Interested Parties’ appeal.

125. They argue That the Applicants are estopped and precluded by conduct and deed from denying the procedural propriety of the conduct of the hearing of the appeal by the Tribunal, and the merits and legality of the resultant judgement of the Tribunal dated 28th April 2022.

126. They believe the Tribunal acted in full compliance with the provisions of Section 7 (2) (b) of the Fair Administrative Actions Act No. 4 of 2015 and also within the unfettered discretion granted to it by Section 49 (3) or the Retirement Benefits Act No 3 of 1997,

127. On 28th April 2022 the Tribunal delivered its judgment on the Interested Parties’ appeal after considering on merit all the documents relied on by the parties and their respective submissions.

128. They further argue That the Court will not permit a litigant to assume inconsistent positions with the sole aim of stealing a match against their opponent. as is the case with the Applicants who are attempting to renege on a consent they entered into of their own free volition.

129. They believe That the Judgment delivered on 28th April 2022 is reasonable, rational and enforceable and in compliance with the law and constitution and That the tribunal acted intra vires, That the decision of the of the Tribunal is limited to the narrow issue of the correct actuarial factors, housing allowances and cost of living adjustments lo be considered when computing the pension benefits payable to the Interested Parties and the ruling dated 22nd April 2020 by the Chief Executive Officer of the Retirement Benefits Authority.

130. They argue That the Applicants have failed to discharge their duty of demonstrating That the Tribunal in the exercise of its wide unfettered discretion:a.Acted contrary to the Law;b.Failed to take into account a relevant factor or took into account an irrelevant one:c.Made a decision That is plainly wrong, when applying the facts and the law in the particular matter; andd.Made a decision That is incorrect based on the material placed before the Tribunal.e.Made a decision That is unreasonable, irrational or absurd

131. They strongly believe That the decision is limited to resolving the dispute on the aforesaid narrow issues of the correct factors to be considered when computing the pension benefits payable to the Interested Parties.

132. According to them, the judgment dated 28th April 2022 is complete and enforceable.

133. They argue That it is the role of the Applicants, (and not the Tribunal), under the Trust Deed and Rules and the Retirement Benefits Act to calculate the correct pension amounts due to the interested parties since the applicants have the requisite capacity, mandate and resources and full knowledge of the 629 interested parties and are therefore best placed to undertake the directives made by the Tribunal in the judgment.

134. The Applicant has all information relating to the 629 interested parties; the date of employment. date of exit from the bank. salaries. house allowance, applicable actuarial factors, cost of living adjustment for each of the interested parties and all other information relevant in re-calculating the pension dues is on the sole custody of the Applicants and NOT the Tribunal as is evidenced in the averments contained in the verifying affidavit of Fred Waswa and therefore the Tribunal cannot be held to have given an incomplete judgment in directing the Applicants to re-calculate the pension dues.

135. Under the Retirement Benefits Act, one of the functions of the Retirement Benefits Authority is to supervise the management of retirement benefit schemes and she believes That the Tribunal acted Intra vires when it ordered the Retirement Benefits Authority to supervise the enforcement of the orders made against the Applicants’ scheme contained in its judgment dated 28th April 2022 and to file a compliance report before it within a period of Sixty days from the date of Judgment.

136. They also believe That the Tribunal upheld the 629 Interested Parties constitutional rights to information. to consumer protection and to protection of property, when it compelled the Applicants to disclose to them all the actuarial and other factors to be used in re-calculating their retirement benefits and That the Tribunal protected the legitimate expectations of the 629 Interested Parties by affirming the correct factors to be considered when computing the pension benefits payable to them based on applicable binding covenants with the Applicants.

137. They also argue and believe to be true That the covenants between the Applicants and the Interested Parties in the Pension Scheme which is the subject of this matter are contractual m nature. and That it, is a trite principle of law That parties are bound by their contracts and That this Honourable Court will not re-write the contracts made by parties but will merely seek to enforce the intentions of the parties as enshrined in those contracts which no party can avoid accrued contractual obligations entered into knowingly and out of one's own free volition, and That it is against public policy for the Applicants to benefit from an illegality as in the present case by virtue of the fact That it is in breach of the binding covenants for the schemes. The Applicants cannot purport to delegate to the Tribunal their legal duty, obligation and mandate vested on them to re-calculate and compute the correct pensions due to the 629 interested parties.

138. They argue That the Tribunal when sitting on appeal against the decision or the Chief Executive Officer of the Retirement Benefits Authority has a right to re-evaluate the findings arid conclusions of the latter based on the evidence adduced and the applicable law, and the Tribunal acted intra vires when 11 re-assessed the findings of the Chief Executive Officer of the Retirement Benefits Authority on the five issues 1t had crystallized based on the correct legislative context factual background andad1udica11on approach

139. She believes That if the orders sought by the Applicants are granted, they would violate the rights of the Interested Parties under Articles 40 and 43 of the Constitution.

140. The Interested parties have legitimate rights both under Law and Contract That have been violated and/or That are at risk of being violated by the Applicants and That merit the intervention of this Honourable Court vide the dismissal with costs of the Application and this Honourable Court upholding the decision of the Tribunal da1ed 28th April 2022.

630th Interested Party’s Case 141. The Ex-parte Applicants have not alleged That there was any illegality, irrationality or procedural impropriety on the part of the Authority and no orders have been sought against the 630th Interested Party.

142. That said for abundance of caution, The Authority filed a Replying Affidavit of John Felix Munene Kimathi Gakunu the legal Officer of the Retirement Benefits Authority ("RBA").

143. According to him on 21st February 2020, the firm of Oseko & Ouma Advocates wrote to the then Chief Executive Officer of RBA, Mr. Nzomo Mutuku, MBS, (the "CEO") indicating That the present dispute was being referred to the RBA in compliance with an order given by Employment and Labor Relation Court ("ELRC") on 10th February 2020.

144. The 1st - 629th Interested Parties were notified of the complaints procedure by an email dated 30th November 2020 after which they filed a complaint form dated 14th May 2020. The Complaint was based on the following grounds:a.the Ex parte Applicants used incorrect actuarial factors in computing the cash values for both deferred pensioners and the commuted values for immediate pensioners. The 1st - 629th Interested Parties also alleged That the Standard Charted Bank reduced lump sum equivalent amounts due to them as a result of fraudulent misrepresentation, concealment and/or non-disclosure of material facts thereby resulting to reduced amounts contrary to the Trust Deed and Scheme Rules.b.the Bank and the Trustees act in not taking into account the cost of living adjustments when calculating the cost values for deferred pensioners was in breach of the Trust Deed and rules and was otherwise illegal, null and void.c.the Bank and the Trustees did not and/or failed to take into account the 1st - 629th Interested Parties' Housing Allowance, an act which was in breach of the Trust Deed and Rules dated 16th July, 1999 and otherwise illegal and, null and void. In alleging this, the 1st - 629th Interested Parties sought to rely on the Supplemental Trust Deed dated 16th July, 1999 and the Memorandum dated 15th January, 1997. d.the Bank and the Trustees did not take into account the 1st - 629th Interested Parties expectation of future increases to their pensions and this led to the payments to the members of reduced Pensions. The 1st - 629th Interested.e.Parties relied on a Valuation Report dated 31st December, 1994; Valuation Report dated 31st December, 1997 stating automatic or mandatory increase and an interim valuation of the Fund.f.the Trustees carried out an actuarial valuation dated 31st December, 1997That revealed a surplus of Kshs. 1. 536 billion. The 1st - 629th Interested Parties alleged That the surplus was paid back to the bank. They sought to rely on the letter by the bank written to the Commissioner of Income Tax dated 17th December, 1999 and the letter by the Commissioner of Income tax to the bank dated 18th January, 2000. To support their Complaint, the 1st - 629th Interested Parties relied on the Supplementary Trust Deed dated 16th July, 1999. The 1st - 629th Interested Parties also alleged That the Bank and Trustees failed to utilize part of the surplus to improve the Scheme Members' benefits which was a condition attached to the purported approval by the Commissioner of Income Tax.g.the conversion to a defined contributory scheme on 1st January, 1999 resulted in a reduction of future accrual of benefits. The 1st - 629th Interested Parties further claimed That the Trustees failed and/or neglected to distribute the surplus to the members who transferred to the new Contributory Section of the Fund and specifically to correctly calculate their entitlements and/or interest in the Fund to the said conversion of a section of the Fund to the Contributory Section and That it resulted into substantial loss and damage to the said members.

145. I am aware That by letter dated 7th May 2020, the RBA informed the Chairman of the Board of Trustees of the Standard Chartered Bank Kenya Pension Fund That a complaint has been filed and further requested for a detailed response to the said complaint within 30 days.

146. The Board of Trustees tendered their response hinged on the grounds summarized as below:a)The dispute which are the subject matter under reply were previously referred to and determined pursuant to the provisions of the Act by the RBA in 2004 and the decision of the CEO was not appealed to the Tribunal.b)The letter from the 1st - 629th Interested Parties dated 21st February 2020 and the copy of the Ruling of 12th October 2018 cannot be an appeal to the CEO as contemplated under section 46 of the Act because:i.Section 46 of the Act contemplates a written appeal by a member of a scheme.ii.The letter dated 21st February 2020 is " merely a cover letter" forwarding a ruling by a Court and not an appeal as contemplated by section 46. iii.The dissatisfied member of the scheme was required by the express provision of section 46 to address an appeal in writing to the CEO, which was not done.iv.The claim documents were not availed to the Board of Trustees to enable them respond adequately.v.The complaint had previously been a subject of consideration and determination by the RBA and the Tribunal as the CEO made a decision on 3rd October 2012 on a similar appeal by Hezekiah Isambo Sakwa and others. The said decision was appealed to the Tribunal.

147. On 24th July 2020, the 1st - 629th Interested Parties presented their rejoinder to the response filed by the Board of Trustees summarized as follows:a)The 1st - 629th Interested Parties complied with the filing procedures of section 46. b)The Complaint is not res judicata as the 1st - 629th Interested Parties were not privy to the cases cited by the Board of Trustees. (Annexed and marked]FMKG - 5 is a copy of the letter dated 24th July 2020)

148. I am aware That on 1st October 2020, and pursuant to the CEO's letter dated 22nd September 2020 requesting for information, the 1st - 629th Interested Parties presented additional documents in support of their Complaint and thereafter the CEO considered the Complaint, the responses and the documents supplied by the parties and held as follows:a.All the 1st - 629th Interested Parties therein at the time of leaving service had not attained the Normal Retirement Age of the prevailing Trust Deed Rules and thus found That the actuarial factor stated in the booklet (11. 10 for males and 12. 20 for females) was not applicable to the 1st - 629th Interested Parties.b.the actuarial factors applied to the deferred pensions of the 1st - 629th Interested Parties were used to determine the cash lump sum in lieu of the deferred pensions.c.The provisions to be applied to the 1st - 629th Interested Parties is Schedule I and II of the TDR dated 3rd June, 1975 which was the prevailing TDR when a majority of the 1st - 629th Interested Parties' services were terminated and That it was clear from Schedule I of the said TDR That a member is not eligible to pension before NRA save for incapacity and ill health.d.Since the actuarial factor used in the determination of benefits was provided TDR, the 1st - 629th Interested Parties were paid under the Scheme Rules and the correct actuarial factors were used in the computation.e.The 1st - 629th Interested Parties did not provide the actuarial valuation of 1997 and 2000 to justify their claim That the trustees failed to take into account the cost of living adjustments to pensions in payment.f.The provision for housing allowance did not feature in the 1975 TDR, the applicable TDR when most complainant's services were terminated. The 1st - 629th Interested Parties had not tendered any evidence on the computation of those whose services were terminated after 16th July, 1999 to show That housing allowance was not factored.g.The 1st - 629th Interested Parties did not adduce the following documents: actuarial valuation dated 31st December, 1994, increased pension payment by 4. 14% per year from the Trustees and Bank, actuarial valuation of 1997 and an interim valuation of the fund to enable the CEO make conclusive determination on whether the trustees failed to take into account expectations of future increases in payment.h.The 1st - 629th Interested Parties did not adduce evidence to support the claim That the trustees carried out an actuarial valuation dated 31st December, 1997 That revealed a surplus of Kshs. 1. 536 billion which was paid back to the bank.i.Majority of the 1st - 629th Interested Parties' services were terminated before the conversion on 1st January, 1999 and paid a lump sum or had their benefits transferred to an insurance company and were therefore not affected by the conversion to a defined contributory scheme which the 1st - 629th Interested Parties alleged reduced benefits and resulted in a reduction of future accrual benefits.j.The Scheme established by the bank was a defined scheme which did not consider member's contribution in payment but rather, the formula and promise provided under the rules.

149. Being dissatisfied with the decision of the CEO, the 1st - 629th Interested Parties lodged an Appeal to the Tribunal vide a Memorandum of Appeal dated 19th May 2021 seeking orders That the Appeal be allowed and the decision of the CEO be set aside. By a Judgment dated 28th April 2022, the Tribunal rendered its decision and concluded, inter alia That:a.the TDR That ought to have been applied in computing the benefits was the one dated 16th July 1999 TDR and not the 3rd June 1975 TDR.b.The information made available to the 1st - 629th Interested Parties was misleading considering the Ex parte Applicants believed That the only factors That would determine the cash equivalent values of their accrued pensions were those published in the booklet in the booklet of January 1996. However, the Ex parte Applicants used new factors (Annexure 7) That led to a reduction of their benefits.c.The Ex parte Applicants used incorrect actuarial factors in computing cash values for both deferred pensioners and the commuted values for immediate pensioners.d.The 1st - 629th Interested Parties were entitled to cost of living adjustments under the Voluntary Early Retirement Scheme, housing allowance as provided under Rule 4 of the 16th July 1999 TDR and future increase in their pension payments in accordance with Rule 62 of the Rules of General Application of the 16th July 1999 TDR.e.The Commissioner of Income Tax had no authority to bypass the express provisions of Rule 22(2)(c) of the TDRs and allow the Bank to recover the surplus. Therefore, the transfer of the surplus to the Bank was not done within the confines of the governing laws and TDR.

150. The Tribunal allowed the Appeal and inter alia, ordered the Ex parte Applicants to re-calculate and pay the 1st - 629th Interested Parties lump sum benefits commuted lump sum and pension) taking into account actuarial factors contained in Annexures 3 and 8 of the memorandum of appeal, cost of living adjustments, housing allowance and future increases and payment.

151. From the foregoing background, it is clear That the Ex parte Applicants did exercise their right of appeal pursuant to section 48 of the Retirement Benefits Act when they challenged the decision of the CEO before the Tribunal and it is the decision of the Tribunal and not That of the CEO That is the subject of the instant Application.

152. He believes That the CEO made his decision in accordance with the Retirement Benefits Act and the provisions of the 1975 TDR which the CEO found to be the prevailing TDR when 1st - 629th Interested Parties were terminated. I further believe That the Ex Parte Applicants and the 1st - 629 Interested Parties were accorded a fair opportunity to be heard pursuant to the rules of Natural justice when they appeared before the CEO.

Analysis And Determination: 153. Having considered the respective cases by the parties and attendant submissions in support thereof, we have concluded That the following issues commend themselves to my attention in order to dispose of this case:1. Whether this Honourable Court has the jurisdiction to hear and determine these proceedings?2. Whether the proceedings and Judgment of the Tribunal are ultra vires the Act and/or unlawful?3. Whether the Judgment of the Tribunal is inconclusive and incapable of performance.4. Whether the Judgment of the Tribunal is unlawful, arbitrary, unreasonable and/or irrational?5. Whether the Ex-parte Applicants are entitled to the reliefs sought in the Application.6. Who should bear the costs of the Application.

Whether This Honourable Court Has The Jurisdiction To Hear And Determine These Proceedings? 154. Section 7(2) (d) of The Fair Administrative Action Act, provides That a court or tribunal under subsection (1) may review an administrative action or decision, if the action or decision was materially influenced by an error of law.

155. The jurisdiction of the tribunal is donated by Section 48 of the Retirement Benefit Act which provides 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 there-under 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."Section 49 of the Retirement Benefits Act provides for powers of appeals tribunal; "(1) On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents. [Emphasis ours]. (2) where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason so to do, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories are administered to make full and true reply to the interrogatories within the time specified by the Tribunal (3) In its determination of any matter, the Tribunal may take into consideration any evidence which it considers relevant to the subject of an appeal before it, notwithstanding That the evidence would not otherwise be admissible under the law relating to admissibility of evidence." 1113) By dint of sections 46, 47 and 48 of the RBA Act, the jurisdiction of the Retirement Benefits Appeals Tribunal arises only after a matter has been acted on by the Authority or its CEO in the first instance. The tribunal exercises appellate jurisdiction. [1201 On the foregoing basis, we are in agreement with the submissions of the learned counsel for the appellants, and further fault the learned Judges of Appeal and hold That the in-built review and appellate mechanisms established under sections 46 and 48 respectively of the RBA Act should have been exhausted first by the respondents before any other recourse is taken to the superior courts.Section 46 of the RBA Act therefore vests original jurisdiction upon the CEO; thus, the proper forum for the respondents to launch their case was to first write to the CEO then if dissatisfied with the decision of the CBO appeal to the Retirement Benefits Appeals Tribunal.”Article 165 (6) of the Constitution provides That The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. I have no doubt in my mind That this court has jurisdiction over the Retirement Benefits Appeals Tribunal and I so hold.

156. In the case of Republic -vs- The Secretary County Public Board & Another Ex parte Hulbai Gedi Abdille Judicial Review Application No. 271 of 2014 [2015] eKLR the court observed as follows: -“34. At this stage, it is important to revisit the parameters of judicial review jurisdiction. The said parameters were set out by the Court of Appeal in Municipal Council of Mombasa -vs- Umoja Consultants Limited, Civil Appeal No. 185 of 2001 in which it was held That:"Judicial Review is concerned with the decision-making process, not with the merits of the decision itself; the Court would concern itself with such issues as to whether the decision makers had jurisdiction whether the personal affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. The court should not act as a Court of Appeal over the decider which would involve going onto the merits of the decision itself such as whether there was or there was not sufficient evidence to support the decision making".At para 36, His Lordship went further and stated thus;"It must be remembered That judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process. It purpose is to ensure That the individual is given fair treatment by the authority to which he has been subjected".

157. In the case of Timotheo Makenge vs. Manunga Ngochi Civil Appeal No. 25 of 1978 [1978)1 eKLR, the Court of Appeal stated the following:“The High Court has supervisory jurisdiction to review the decision of a quasi-tribunal even if the decision is expressed to be final."It is my finding That this court has jurisdiction.

Whether the judgment made by the tribunal is inconclusive and incapable of enforcement 158. It is the Ex-parte Applicants’ case That the 1st Respondent was duty-bound to render a decision effectively and conclusively on the dispute before it which it failed to do. The Applicants argue That the 1st Respondent acted unlawfully and without jurisdiction and thus rendered its judgment a nullity when it directed the Trustees as follows:a.The 2nd - 12th Ex parte Applicants (hereinafter referred to as "the Trustees") would disclose actuarial and other factors to be used in the re-calculation of the Appellants' retirement benefits.b.The Trustees would re-calculate and pay to the Appellants lumpsum benefits (commuted lumpsum and pension) taking into account the 16th July 1999 Trust Deed and Rulesc.The Trustees would re-calculate and pay to the Appellants lumpsum benefits (commuted lumpsum and pension) taking into account the actuarial factors contained in Annexures 3 and 8 of the Memorandum of Appeal, cost of living adjustment, housing allowance and future increased and payments.d.The 2nd Respondent would refund to the Fund a sum of Kshs 1. 1 billion together with interest from 28th February 2000. e.Compliance report to be filed by the Authority within 60days.f.to compute the benefits the Tribunal in its judgment to find out what they were owed and to have them paid.

159. The Applicants argue That in so doing, the Tribunal abdicated its adjudicative role and delegated it to the Trustees and the Bank who were parties in the proceedings. They rely on the finding of the Court of Appeal’s decision in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016] Eklr.

160. In the judgement in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) The Supreme Court overturned the Court of Appeal’s decision in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016] eKLR which the Applicant is relying on to front its arguments under this limb.

161. It is my finding, and I so hold That the Tribunal did not abdicate nor delegate its statutory power when it issued the structural interdicts which are in keeping with the principles of structural interdicts as enunciated in the judgment in the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae).

162. In any event, The Exparte Applicants are not strangers to the parties herein and to the matters That were before the Tribunal. I am satisfied That they fall within the framework of the kind of outfit That the Supreme Court contemplated in the Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) judgment when it issued the aforementioned guidelines-"122. ..we hasten to add That, interim reliefs, structural interdicts, supervisory orders or any other orders That may be issued by the courts have to be specific, appropriate clear, effective and directed at the parties to the suit or any other state agency with a Constitution or Statutory mandate to enforce the order."

163. Section 45 of The Retirement Benefits Act No. 3 of 1997and provides That the Trustee, Manager Custodian or Administrator of a Scheme shall:“Ensure That the scheme funds are at all times managed in accordance with the Act, any regulations made thereunder, the scheme rules and any directions given by the Chief Executive Officer."

164. I am in agreement with Grace Njeri Ndirango who swore the replying Affidavit for an on behalf of the interested parties:Para 49. That I know from my own knowledge having worked for over 30 years with the applicants That they have the requisite capacity, mandate and resources and full knowledge of the 629 interested parties and are therefore best placed to undertake the directives made by the Tribunal in the judgment.Para 50. That I know of my own knowledge That all information relating to the 629 interested parties; the date of employment. date of exit from the bank. salaries. house allowance, applicable actuarial factors, cost of living adjustment for each of the interested parties and all other information relevant in re-calculating the pension dues is on the sole custody of the Applicants and NOT the Tribunal as is evidenced in the averments contained in the verifying affidavit of Fred Waswa and therefore the Tribunal cannot be held to have given an incomplete judgment in directing the Applicants to re-calculate the pension duesPara 51. That I am informed by my Advocates on record. which information I verily believe to be true, That based on the Retirement Benefits Act, one of the functions of the Retirement Benefits Authority is to supervise the management of retirement benefit schemes.Para 53. In issuing the structural interdicts, the Tribunal upheld the 629 Interested Parties constitutional rights to information, to consumer protection and to protection of property and in particular when it compelled the Applicants to disclose to the 629 Interested Parties all the actuarial and other factors to be used in re-calculating their retirement benefits.Para 52. There is nothing illegal in the Tribunals directions and the Tribunal did not act ultra vires when it ordered the Retirement Benefits Authority to supervise the enforcement of the orders made against the Applicants' scheme contained in its judgment dated 28th April 2022 and to file a compliance report before it within a period of Sixty days from the date of Judgment.”

165. It is my finding That the Exparte Applicant is the best placed organ when it comes to implementing the judgment as directed by the Tribunal.

166. The Ex parte Applicants' Written Submissions in reply to the submissions by the 1st - 629th Interested Parties ("the Interested Parties") dated 1st February 2023 and the Respondents Written Submissions dated 6th March 2023 advance the fact That it is not a contested fact That the 1st Respondent, in its judgment, directed the Ex-parte Applicants to compute the pension benefits payable to the Interested Parties which is well beyond the scope of its mandate as it became functus officio upon delivering its decision.

167. They referred the court to the case of Kenya Revenue Authority vs. Menginya Salim Murgane Civil Appeal No. 108 of 2010 (2010) eKLR the Court of Appeal held thus regarding computations in a judgment;“On the issue of the superior court's delegation of judicial powers to the Deputy Registrar at page 814 of the judgment under the heading - Grant of Remedies, although the Court expressed itself as having awarded one head of damages namely exemplary damages, in the sum of 1 million and as regards the other heads of damages, the court went on to state - "the Court's award of damages is as follows: 1,2,3,4,5 and 6. " According to the superior court what it had delegated to the Deputy was the "calculation" of those other heads, a task the court considered purely ministerial and within the mandate of the Deputy Registrar. With respect, it was erroneous to convert a judicial function into a ministerial function. Both the award and the level or quantum of damages is in our view, judicial functions which the superior court cannot rightfully delegate to a Deputy Registrar. Indeed, both aspects are appealable to this Court and not to the superior court whereas orders of the Deputy Registrar under Order 48 are appealable to the superior court. The Deputy Registrar's ministerial powers are set out in Order 48. There is no provision in law for delegating any judicial functions to the Deputy Registrar. Any such delegation would be a nullity. A judgment must be complete and conclusive when pronounced and therefore it cannot be left to the Deputy Registrar to perfect it.The Applicants submit That in its decision, the 1st Respondent bestowed upon the 630t Interested Party, who were parties to the proceedings herein, the duty to supervise the compliance with its judgment. As already submitted above, the 1st Respondent draws its jurisdiction and powers from the provisions of section 49 as read together with the Rules. Nowhere in those provisions is it provided That upon determination, the 1st Respondent can direct the 630th Interested Party to supervise the perfection of its (1st Respondent's) judgment. To do so would be to delegate a judicial function to a party in the proceedings which is not permissible in law.Further, it should be noted That it is the decision of the 630th Interested Party That triggered the proceedings and it is pursuant to the provisions of section 48 of the Act That a party dissatisfied with the decision of the 630th Interested Party appeals to the 1st Respondent.I am satisfied That the judgment made by the tribunal is conclusive and legal and enforceable and That the finding of the Tribunal was within the principles as enunciated by the Supreme Court in the Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) judgment -"122. ..we hasten to add That, interim reliefs, structural interdicts, supervisory orders or any other orders That may be issued by the courts have to be specific, appropriate clear, effective and directed at the parties to the suit or any other state agency with a Constitution or Statutory mandate to enforce the order."

Whether The Judgment Of The Retirement Benefits Tribunal Is Ultra Vires The Act And/or Unlawful 168. The proceedings before the Tribunal commenced by way of an Appeal from the decision of the Authority dated 22nd April 2021. The Appellants filed a Memorandum of Appeal dated 19th May 2021 accompanied by a Statement of Facts of the same date together with annexures. The said pleadings were signed by the Appellants' Advocates then on record Ms. Salome M. Beacco of Wanyonyi Muhia & Company Advocates.

169. The Appeal proceeded by way of written submissions, and on the date fixed for hearing, the Tribunal granted 30 minutes to each of the parties' advocates for highlighting submissions.

170. It is the Applicants case That notwithstanding That, the Ex-parte Applicants' Counsel raised the issue of the probative value of the documents which had been filed through the statement in support of the Appeal and signed by the Advocates for the Appellants on the following terms:-“The first issue is about the wrong actuarial factors we have seen, and it is before you in annexure 4 actuarial factor. We have seen and it is before you Annexure 4 of the Appeal, at page 96 this is a report we have been told That it has been prepared by Leslie Okudo. Leslie does not identify who he is, is he a registered actuary?This Tribunal will be faced with problem That the documents annexed, and their source are not indicated, for example annexure 8. The least we would expect is at least it should have a logo the same thing applies to annexure 7".

171. The Tribunal nevertheless disregarded the issue and failed to address the concerns raised by the said counsel with respect to the probative value of the documents.

172. The powers of the Tribunal are expressly granted by Section 49 of the Act which provide as follows: -“Section 49 Powers of Appeals Tribunal(1)On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath and affirmation and to call for the production of books and other documents.(2)Where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason so to do, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories and administered to make a full and true reply to the interrogatories within the time specified by the Tribunal.(3)In its determination of any matter, the Tribunal may take into consideration any evidence which it considers relevant to the subject of an appeal before it, notwithstanding That the evidence would not otherwise be admissible under the law relating to admissibility of evidence".The imperative under the said provision is to require evidence to be adduced only through witnesses under oath.

173. The alternative avenue available to the Tribunal is to receive evidence by affidavit where the Tribunal considers it desirable to avoid expense or delay or any other special reason so to do. Affidavit evidence can only be reverted to after judicious consideration and in That event, interrogatories have to be administered. Neither was applied in this case according to the Applicant.

174. At the heart of the provision of Section 49 is the requirement for the evidence to be considered by the Tribunal to be given only under oath through a witness or affidavit with interrogatories. Either way, the evidence is subjected to cross examination or interrogatories as applicable, neither of which was applied or considered in this case and in so doing, the Tribunal in rendering a decision in the absence of either sworn evidence or affidavit evidence acted in excess of the powers granted to it by section 49 of the Act.

175. The Ex-parte Applicants argued That it is trite law That statements and pleadings are not evidence. They are mere statements without probative value and can only acquire the status of evidence when adopted by a witness upon being sworn, adduced and cross examined. That is what is contemplated under section 49(1) and (2) of the Act.

176. To buttress their case, the Applicants rely on the case of Musikari Kombo vs. Royal Media Services Ltd. Civil Case No. 89 of 2011 [20141 eKLR Justice G.V. Odunga adopted the dicta in Consolata Hospital Mathari vs. Dr. Bianka Matens Nyeri HCCA No. 17 of 2004 where it was held That there was no probative value in a witness statement That had been produced by an unsworn witness and as such was a mere statement. It was held inter alia That: -“From the record there is no indication That witnesses testified on oath. It is possible they may have testified on oath but the learned magistrate inadvertently failed to record. However, this is a court of record and there is no room for speculation and or conjecture. Going by the record it can be held That perhaps the witnesses testified without being sworn. The effect of the evidence not given on oath is That it amounts to no more than a mere statement of no probative value to the case... The fact That this was not an issue canvassed before the court did not occasion any injustice and prejudice to any of the parties since the law is settled That evidence must be taken on oath unless for children of tender years as well as those who choose to be affirmed.Submissions on this issue by counsel would not have made any difference. In any event the issue in focus goes to the jurisdiction and the court has jurisdiction to address the same suo moto. On this issue alone the appeal ought to succeed."

177. It is the applicants case That the documents filed by the Appellants were not produced in evidence by either a witness testifying under oath or by affidavit evidence and as such do not have any probative value. Whereas a document speaks for itself, those filed by the Appellants lacked identification of the source of the said document, its authors and the dates when they were made. This applied to all the annexures relied upon by the Appellants in their appeal before the Tribunal. In spite of the authenticity and veracity of the documents having been challenged by the Ex-parte Applicants, the Tribunal proceeded to find as follows:-“152. It is therefore curious That 2nd - 12th Respondents now seek to persuade this Tribunal That no evidence was availed to support the Appellants assertions of what they had to be the correct computation of their respective rights.153. This Tribunal has perused the record and examined all the evidence and in so doing noted That indeed, the Appellants produced a booklet dated January 1996 (Annexure 3 in the Appellant's Bundle of Documents) and a copy of the Standard Chartered Bank Kenya Limited lumpsum conversion Factors (annexure 8 in the Appellants bundle of documents) and an illustration of one of the appellants computations on whom those conversions facts were applied (annexure 9).154. The appellant produced a table of conversion factors (annexure 7) which they allege are new reduced conversion".The Applicants argue That all the documents the Tribunal referred to were not produced either through evidence or through an affidavit as required by Section 49 of the Act.

178. The Tribunal proceeded to find That the 2nd Respondent had used wrong actuarial factors based on the contents of the annexure marked 7. It further found That the lumpsum conversion factors ought to have been 9% interest rate and 4% CPI as contained in the annexure marked 8 and without sworn evidence or affidavit (see page 1248 of the Record).

179. As a result, the determination of the Tribunal was predicated on the Memorandum of Appeal, the statement and documents filed pursuant thereto. It should be noted That the filing of the said documents was as provided by the Retirement Benefits (Tribunal) Rules 2000 (hereinafter "the Rules* which by the provisions of Rules 5 and 6, provide the documents required for an appeal before the Tribunal and goes to state That the appeal shall be entered by presentation of a Memorandum of Appeal accompanied by a statement. The Statement is, therefore, intended to be a pleading and not evidence as contemplated under section 49 of the Act.

180. The Applicants also rely on the case of CMC Aviation Limited -vs- Cruisair Limited (No. 1) [1976 – 8011 KLR 835, Madan J (as he then was) expressed himself thus: -“Pleadings contain the averments of the parties concerned or anything until they are proved or disapproved or there is an admission of them or any of them by the parties they are not evidence and no decision could be founded upon them.Proof is the foundation of evidence. Evidence denotes the means by which and alleged matter of fact the truth of which is submitted for investigation until the truth has been established or otherwise they remain unproven. Averments in no way satisfy for example, the definition of "evidence" as anything That makes clear or obvious; ground for knowledge indication or testimony in That which makes truth evident or renders evidence to mind That it is truth."

181. They also refer the court to the case of Robert Ngande KaThathi vs. Francia Kiruwa Kitonde High Court Civil Appeal No. 57 of 2017 (2020) eKLR the Honourable Mr. Justice G. Odunga approved the following passage from the decision of Kenneth Nyaga Mwige -vs- Austin Kiguta & 2 Others (2015) eKLR: -“23. In the instant case, we are of the view That the failure or omission by the Respondent to formally produce the documents marked for identification being MFI1, MFI2 & MFI3 is fatal to the Respondent's case. The documents did not become exhibits before the trial court, they were simply being marked for identification and they have no evidential weight. The record shows That the trial court relied on the document MFI2 That was marked for identification in its analysis of the evidence and determination before the court. We are persuaded by the dicta in the Nigerian case of Michael Hausa -vs- The State (1994) 7 – 8 SCJN 144 That a document marked for identification is not part of evidence That a trial court can use in making its decision.24. In our view, the trial judgment in evaluation the evidence on record and basing his decision on MFI2 which was a document not formally produced as an exhibit. It was a fatal error on the part of the Respondents not to call any witnesses to produce the documents marked for identification."

182. According to the Applicants argue That in the present case, the annexures marked 3, 7, 8 and 9 relied upon by the Tribunal in arriving at their decision were attached to the statement of facts but were not produced either through sworn evidence or through an affidavit as required by Section 49 of the Act. The Tribunal wholly based their determination and orders on the said documents. This reliance renders the proceedings and the Tribunal's judgment null and void. Further, in relying on the said documents, the Tribunal acted ultra vires its powers under Section 49 of the Act.

183. They refer the court to the English case of Council of Civil Service Union & Others vs. Minister for Civil Service [19841 3 ALL ER 935 the House of Lords, Lord Diplock had the following to state at page 951(a): -“have described the third head as procedural impropriety rather than failure to observe basic rules of natural justice of failure with procedural fairness towards a person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules That are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of justice." (Emphasis ours)

184. They strongly believe That in this case, the Tribunal failed to observe the provisions of Section 49(1) and (2) of the Act thereby committing grave and irreversible procedural irregularity.

185. The 1st Respondent is a creature of statute and is established by Section 48 of the Act. As a creature of statute, it has to exercise its jurisdiction in accordance with Section 49 of the Act. To the extent That it has failed to comply with the provisions thereof and acted in excess of or outside the powers donated to it by statute, its actions and judgment are without jurisdiction and therefore a nullity.

186. They strongly believe That the judgment of the Tribunal should be reviewed and set aside by this Honourable Court in exercise of its supervisory jurisdiction on grounds That it is ultra vires the Act and unlawful: -a.On the grounds That the impugned judgment was arrived at without evidence as required by section 49 of the Act, the proceedings having been conducted without sworn evidence given by witnesses or through affidavits. Further, the impugned judgment was predicated on documents of doubtful probative value which were in the event not produced before the Tribunal at the hearing; andb.the judgment was issued without jurisdiction, the Tribunal having failed to comply with the requirements of section 49(1) and (2) of the Act and therefore rendering the same null and void.

187. The 1st Respondent’s case is That The Appellants in the Appeal (before the RBAT) brought a complaint under section 46 of the Retirement Benefits Authority Act, 1997. The Appellants in lodging their complaint did not file it in the conventional manner rather, they filed their complaint in the form of a cover letter addressed to the Chief Executive Officer, Retirement Benefits Authority (hereinafter the 630th Interested Party) and attached a copy of the ruling dated 12th October 2020.

188. It argues That when the 1st Respondent (630th Interested Party herein) notified the Appellants of the correct procedure of filing a complaint, they filed the requisite complaint which also lacked any content or summary of issues and was merely referring the Retirement Benefits Authority herein to a Plaint filed before the High Court, HCCC No. 334 of 2009: Abdalla Osman and 628 others vs. Standard Chartered Bank Kenya Limited & Other.

189. The Retirement Benefits Authority (RBA) being guided with principles of the Constitution of Kenya, 2010 Article 159 (2)(d) decided to administer justice without undue regard to procedural technicalities as the form in which a complaint is lodged with does not go into the root of the case.

190. The Tribunal in determining the issues before it relied on various legal framework including the Constitution of Kenya, 2010, Retirement Benefits Act, 1997 and Regulations thereunder, the Income Tax (Retirement Benefits) Rules 1994, the Income the Evidence Act CAP 80 Laws of Kenya, Judicial Precedents and the Applicable Trust Deed and Rules. This court has no business delving into the merits That led to the findings of the tribunal.

191. The interested parties further submit That The Ex-parte Applicants submit That the 1st Respondent is bestowed with the jurisdiction to determine the manner in which the proceeding before it is to be conducted. Whereas the parties proceeded with the matter, the parties, cannot by their conduct bestow upon the 1st Respondent jurisdiction That is not bestowed by law.

192. The Court of Appeal in the case of Adero vs. Ulinzi Sacco Society Limited Civil Suit No. 1879 of 1999 [2002] eKLR summarized jurisdiction as follows;“2. The jurisdiction either exists or does not a initio and the non-constitution of the forum created by statute to adjudicate on specified disputes could not of itself have the effect of conferring jurisdiction on another forum which otherwise lacked jurisdiction.Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds That parties have acquiesced in actions which presume the existence of such jurisdiction.Jurisdiction is such an important matter That it can be raised at any stage of the proceedings even on appeal.Where a cause is filed in court without jurisdiction, there is no power on That court to transfer it to a court of competent jurisdiction.

193. It is well settled That parties cannot acquiesce to the conferment of jurisdiction. The Ex-parte Applicants submit That the 1st Respondent was under obligation to give directions on the manner in which the appeal before it was to be disposed. Failing to give directions, and the parties proceeding in the manner they did, cannot be construed as to waive or override the mandatory provisions of section 49 of the Act.

194. I am in agreement with the interested parties That on 20th January 2022 the Applicants, the Interested Parties and Retirement Benefits Authority agreed to proceed with the hearing of the appeal before the Tribunal based on the filed documents and by way of written submissions, whereupon the Tribunal granted the parties leave to file their written submissions. The Applicants cannot attack nor undermine the same process That they accepted to conform with and be bound by after the judgment.

195. Allowing That would open up an avenue for procedural convenience on the part of litigants at the expense of procedural fairness at the expense the Right to Fair Hearing as guaranteed under Article 47 of The Constitution. I decline to be drawn into That pendulum.

196. Without delving into the merit of what was before the Tribunal, this court does not see any procedural impropriety in the manner in which the hearing of the appeal by the Tribunal was conducted.

197. Parties who were represented by able counsel filed their documents, submissions, exchanged documents, proceeded into highlighting and it is clear That the Applicants were active and present during the prosecution of the appeal in line with the consent and all the directions of the Tribunal. It is my finding That the procedure followed by the Tribunal in hearing the appeal has no impact on the judgment in the Tribunals’ judgment.

198. In any event this form of hearing of suits and appeals has become the practice in most of the courts today where the rules of procedure even make provision for the hearing of cases in the form of affidavits and submissions without calling witnesses. In many cases witness statements are being adopted in place of Chief examination. There is absolutely nothing wrong with a court or a tribunal adopting a flexible way of hearing cases before it so long as it is not prejudicial to the parties. In many cases today, parties even admit documents by consent without having to call the maker of the documents. A lot of the procedural matters around how the cases are heard is determined during the pretrial phase.

199. In order to buttressed this line of argument the ex-parte applicants filed a replying submissions the Applicants.

Whether The Evidence Before The 1St Respondent Was Given Under Oath 200. They submit That the 1st Respondent draws its powers from section 49 of the Retirement Benefits Act ("the Act"). Pursuant to section 49(1) of the Act, the 1st Respondent is bestowed with powers akin to those of a subordinate court to summon witnesses and take evidence under oath. It reads thus;i.On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses. to take evidence upon oath or affirmation and to call for the production of books and other documents.ii.Where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason so to do, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories are administered to make a full and true reply to the interrogatories within the time specified by the Tribunal."

201. The Ex-parte Applicants submit That in the first instance, the 1st Respondent is required, mandatorily, to conduct its trial like a subordinate court and take evidence under oath. This is informed by the application of the phrase 'shall' at section 49(1) of the Act.

202. Reliance is placed in the case of Republic vs. Council of Legal Education & Another Ex-parte Sabiha Kassmia & Another JR No. 703 of 2017 [20181 eKLR where it was held thus;“20. The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. [23] The Longman Dictionary of the English Language states That "shall" is used to express a command or exhortation or what is legally mandatory.

203. Regard must be had to the long-established principles of statutory interpretation. At common law, there is a vast body of case law which deals with the distinction between statutory requirements That are peremptory or directory and, if peremptory, the consequences of non-compliance.

204. Discussing the use of the word shall in statutory provision, Wessels JA laid down certain guidelines: -Without pretending to make an exhaustive list I would suggest the following tests, not as comprehensive but as useful guides. The word 'shall when used in a statute is rather to be construed as peremptory than as directory unless there are other circumstances which negative this construction... [25] - Standard Bank Ltd vs Van Rhyn (1925 AD 266).

205. They submit That it is for the said reason That under section 49(2) of the Act, an option is given to the 1st Respondent to proceed by way of affidavit evidence. Unlike the provision of section 49(1) above, section 49(2) is couched in a permissive manner, one That leaves it to the discretion of the Respondent.

206. In this case, neither party called witnesses to testify before the Respondent and it cannot be said That there was any evidence produced by the parties in the proceedings before the 1st Respondent as there was neither oral evidence adduced under oath nor affidavits filed as contemplated under section 49(2) of the Act.

207. They have also referred the court to the Retirement Benefits (Tribunal) Rules 2000 ("the Rules"), it is provided at Rule 10 therein the procedure for hearing of appeals before the 1st Respondent. A reading of this part shows That for a hearing to be conducted, witnesses must be called to give evidence. As a matter of fact, the evidence so produced must be done so under oath. This means That either the witnesses have to be sworn or in the alternative, affidavits have to be filed adducing the evidence in support of the appeal before the 1st Respondent.

208. The Ex-parte Applicants, therefore, submit That the proceedings before the 1st Respondent must be conducted in accordance with the provisions of Section 49 of the Act as read together with Rule 10 of the Rules. Under both, it is clear That evidence can only be adduced under oath or by way of affidavit, neither of which was done.

209. Where parties have opted to embrace a flexible form of hearing by way of documents and submissions as was the case before the Tribunal, a party who lost in the Appeal cannot then turn around a disown the process That they subscribed to and even participated in by way of filing documents, submissions and participated in highlighting.

210. The procedure That the parties consented to adopt as the form of hearing accords with the Fair Administrative Action Act. Under The Civil Procedure Rules, Order 11 creates such a window. I find That when the Tribunal sat and embraced the form of hearing That the Applicants are seeking to challenge, it was conducting a pretrial conference in the presence of counsel who consented to be bound by the procedure That they embraced during the hearing and I so hold.

211. Section 49 (3) of The Retirement Benefits Act provides That in its determination of any matter, the Tribunal may take into consideration any evidence which it considers relevant to the subject of an appeal before it, notwithstanding That the evidence would not otherwise be admissible under the law relating to admissibility of evidence.

212. This court is in agreement with the interested parties, to the extent That the Retirement Benefits Act merely requires an appeal to the Chief Executive Officer of the Retirement Benefits Authority on any dispute, relating to pension benefits to be in writing, but does not provide any mandatory forms for lodging the appeals. And That in any event Article 159 (2)(d) Constitution of Kenya (2010) for Justice to be administered based on substance and without undue regard to procedural technicalities.

213. Whereas Rules 5 and 6 of the Retirement Benefits (Tribunal) Rules 2000 prescribe the form to be adopted when preparing a Memorandum of Appeal, the Interpretation & General Provisions Act (Cap 2) Laws of Kenya expressly stipulates That a Memorandum of Appeal shall not be rendered void on account of any deviation from a prescribed form which does not affect the substance of the instrument or document and I so hold.

214. This accords with Article 159 of the Constitution of Kenya (2010) which calls for this court to administer justice based on substance and without undue regard to procedural technicalities.

215. It is my finding That the rules of admission of evidence before the Tribunal are more flexible than those under the Evidence Act as invoked in the regular court. In the circumstances, it is this court’s finding That Tribunal did not allow the Appellants to re-litigate the matter before the Tribunal. I dismiss the Applicants argument.

216. The Retirement Benefits Act has granted the Tribunal wide unfettered discretion on how to conduct hearings and take evidence when dealing with appeals in order to enhance its expeditious and cost-effective determination of matters. No doubt this is a legislation That is driven by the spirit of access to justice under Article 48 of the Constitution. The Act seeks to promote the much needed social justice appreciating That it deals with matters of the older members of the society in the name of pensioners and retirees like the interested parties.

217. The Ex-parte Applicants' Counsel also argues That it raised the issue of the probative value of the documents which had been filed through the statement in support of the Appeal and signed by the Advocates for the Appellants on the following terms:-“The first issue is about the wrong actuarial factors we have seen, and it is before you in annexure 4 actuarial factor. We have seen and it is before you Annexure 4 of the Appeal, at page 96 this is a report we have been told That it has been prepared by Leslie Okudo. Leslie does not identify who he is, is he a registered actuary?This Tribunal will be faced with problem That the documents annexed, and their source are not indicated, for example annexure 8. The least we would expect is at least it should have a logo the same thing applies to annexure 7".

218. The Applicants are aggrieved That The Tribunal nevertheless disregarded the issue and failed to address the concerns raised by the said counsel with respect to the probative value of the documents. This court cannot delve into the reasoning of the Tribunal.

219. It is my finding That the fact That the Tribunal accepted these documents very early in the proceedings. The Applicants knew and accepted this state of affairs. The Applicants thereafter proceeded into the arena of prosecuting the Appeal this challenge notwithstanding.

220. By so doing, it is this court’s finding That the Tribunal exercised its discretion judiciously so as to pave way for the substantive hearing of the appeal.

221. This court finds That the applicant has failed to show That the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.

222. In the Ugandan case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 in which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held That:“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 or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions 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 a 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 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 legislative Instrument by which such authority exercises jurisdiction to make a decision.”

Whether The Bank And The Trustees Are Entitled To The Reliefs Sought In The Application 223. The exparte Applicants argues That The Tribunal exceeded its jurisdiction as an appellate body by providing reliefs not sought in the appeal. Without getting into the merits of the case, I find That in excising its discretion, the 1st Respondent acted within the principles and the framework of the structural interdicts That the Supreme Court enunciated in the in the Supreme Court case of Mitubell Welfare Society -Vs- The Kenya Airports Authority Petition No. 3 of 2018 [20211 KESC 34 KLR11 the Court issued the following:“122. ..we hasten to add That, interim reliefs, structural interdicts, supervisory orders or any other orders That may be issued by the courts have to be specific, appropriate clear, effective and directed at the parties to the suit or any other state agency with a Constitution or Statutory mandate to enforce the order."

224. The 1st Respondent's decision to issue structural interdicts cannot be said to be one That frustrated the purposes of Act by breaching principles of rationality and lawfulness contrary to the provisions of the Act, the Regulation Trust Deed and Rules when it issued directions to the Bank and the Trustees. Such orders cannot be equated to a breach of the cardinal principle of autonomy set out at Section 40 of the Act and I so hold.

225. The Applicants have not demonstrated how the Tribunal violated all the tenets of a fair administrative action as guaranteed under Article 47(1) of the Constitution. The Applicants also advanced an argument That the 1st Respondent developed and dealt with issues That were not agreed upon by the parties. In arriving at the decision, the RBAT framed the following 7 issues for determination:a.Which is the Applicable Trust Deed and Rules to the Appellants in the present Appeal.b.Whether the 1st Respondent erred in finding That there was no fraudulent misrepresentation, concealment, and non-disclosure on the part of the 2nd – 12th Respondents by using new actuarial factors instead of those provided in the computation sheets and booklets sent to the Complainants (the Appellants)c.Whether the 1st Respondent erred in finding That the 2nd - 12th Respondents used correct actuarial factors in computing the cash values for both the deferred pensioners and the commuted values for immediate pensioners?d.Whether the 1st Respondent erred in finding That the 2nd -12th Respondents were justified in failing to take into account the cost-of-living adjustment?e.Whether the 1st Respondent erred in finding That the 2nd -12th Respondents were correct in failing to take into account the housing allowance as per the 1999 Trust Deed and Rules (TDR) in payment of benefits to the Complainants?f.Whether the 1st Respondent erred in finding That 2nd -12th Respondents were correct in failing to take into account expectations of future increases and payments?g.Whether the 1st Respondent erred in in finding That the 2nd -12th Respondents were correct in paying back the scheme surplus to the sponsor which reduced the Complainants’ benefits?

226. According to the 1st Respondent, the RBAT framed the issues for determination were based upon the documents That were presented before it in compliance with Order 15 Rule 2 (c). The said provision allows, a Court, Tribunal or Board to consider any issue That may not have been raised by either of the parties in the case.

227. In case of Veronica Gathoni Mwangi & Another vs. Samuel Kagwi Ngure & Another [2020] eKLR the court held thus:“12. Under Order 15 Rule 1 of the Civil Procedure Rules, an issue arises when one party makes a material proposition of fact or law which is denied by the other party. Order 15 Rule 2 which deals with the framing of issues provides as follows;2)The court may frame the issues from all or any of any of the following materials –a.Allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates of such parties;b.Allegations made in the pleadings or in answer to interrogatories delivered in the suit;c.The contents of documents produced by either party.The trial Tribunal had the right to exercise its discretion as provided under Order 15 rule 2 of the Civil Procedure Rules to frame its own issues as derived from the contents of the documents produced by either party as was the case herein.”

228. It is my finding That the Tribunal did not act illegally in developing the aforementioned issues for determination in the manner That it did and I so hold.

229. In their written Submissions in reply to the submissions by the 1st - 629th Interested Parties ("the Interested Parties") dated 1st February 2023 and the Respondents Written Submissions dated 6th March 2023, The Applicants have raised the issue whether the Judicial Review Application is on facts not process.

230. In countering the interested parties submissions, the Ex parte Applicants submit That it must be noted That these proceedings have been brought pursuant to, among others, the provisions of the Fair Administrative Actions Act and in facts set out in the Statement of Facts and in the affidavit verifying the facts are not to argue the factual merits of the proceedings filed before the 1st Respondent but rather to set out the basis upon which the Ex-parte Applicants argue That the 1s Respondent acted ultra vires, arbitrarily and unreasonably.

231. It is their case That following the promulgation of the constitution, and the codification of judicial review under Article 23 of the Constitution, this expanded the scope of the application of judicial review. Most importantly, the Ex parte Applicants submit That the court cannot shut its eyes entirely to the merits of the case.

232. For this argument, the Applicants rely on the holding of the Supreme Court in the case of Praxidis Namoni Saisi & 7 Others Vs. Director of Public Prosecutions & 2 Others Supreme Court Petition Nos. 39 & 40 of 2019 (Consolidated) [20231 KESC 6 (KLR) (Civ) (27 January 2023) (Judgment) wherein it held thus;“75. In order for the court to get through this extensive examination of section 7 of the FAAA, there must be some measure of merit analysis. That is not to say That the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly "in the circumstances of the case", without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion That the action taken was within or outside the range of reasonable responses. However, it is our considered opinion That it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge. To borrow the words of the Court of Appeal in Judicial Service Commission & another v Lucy Muthoni Niora, Civil Appeal 486 of 2019; [2021] eKLR there is nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception That judicial review is limited to a dry or formalistic examination of the process only leads to intolerable superficiality. This would certainly be against article 259 of the Constitution which requires us to interpret it in a manner That inter alia advances the rule of law, permits the development of the law and contributes to good governance." (Emphasis added}

233. The Applicant believe That it was the Supreme Court's finding That whereas the judicial review is concerned with the process, it can extend its scope to the examination of merits That led to the decision. This examination is, however, only limited to facts That are uncontroverted.

234. Based on this they submit That the court cannot shut its eyes to the fact That there was never a hearing conducted by the 1st Respondent within the meaning of section 49 of the Act.

235. They submit That the gravamen of the Ex-parte Applicant's submissions is That the 1st Respondent never complied with the provisions of section 49 of the Act when arriving at its finding.

236. In more recent judgment, the Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others the court addressed the issue of 'Whether the scope of judicial review has evolved to include determination of merit review of an administrative decision' [see page 29].The summary is as follows:Prior to the promulgation of the Constitution in 2010, judicial review was found in Sections 8 & 9 of the Law Reform Act and Order 53 of the CPR That addressed the procedural basis [see paragraph 77-page 30].(b)Judicial review was entrenched in the Constitution of 2010 to a substantive and justiciable right under Article 47 [see paragraph 78-page 301. The court concluded at paragraph 85 [see page 33]and held as follows:'It is clear from the above decisions That when party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation ofthe Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.

237. It is my finding and I so find That the Applicants in this suit moved the court under the provisions of Order 53 of the Civil Procedure Rules as a result of which this court did not delve into any merit analysis.

The Applicants Have An Issue That The Respondent Determined An Issue That Is In The Jurisdiction Of The Commissioner Of Taxes 238. Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others reaffirmed That: (a) Prior to the promulgation of the Constitution in 2010, judicial review was found in Sections 8 & 9 of the Law Reform Act and Order 53 of the CPR That addressed the procedural basis [see paragraph 77-page 30]. (b) Judicial review was entrenched in the Constitution of 2010 to a substantive and justiciable right under Article 47 [see paragraph 78-page 301. The court concluded at paragraph 85 [see page 33]and held as follows:'It is clear from the above decisions That when party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.

239. Guided by the merit analysis principles as enunciated by the Supreme Court, this court lacks the capacity to do a merit analysis of the Tribunals finding. To attempt to do so would amount to an illegality.

240. What the Applicant is raising in this argument is a questions That only the Court of Appeal can attend to if and when appropriately moved. In the circumstances it is my conclusion That the Applicants have not proven That the Tribunal’s decision was materially influenced by an error of law. The Applicant has failed to prove That it is entitled to an order of Certiorari to remove into this Honourable Court and quash the judgment and orders of the Retirement Benefits Appeals Tribunal.

Prohibition 241. In the case of Esther Victoria Wanjiku Mahoro v Mary Wambui Githini & 3 Others Judicial Review Case No. 6 of 2020 [20211 eKLR, the court observed as follows: -“An order of Certiorari can be made if the Court is satisfied That a tribunal made a decision in excess of its jurisdiction, and further the Court can also issue an order of prohibition prohibiting the said tribunal from proceeding with the said proceedings."

242. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:“The Order of "Prohibition" issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi's Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.""Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of That power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."

243. In seeking the prayer for an order of prohibition, the Ex parte Applicant relied on the case of Republic v Principal Kadhi, Mombasa & Another Ex-parte Alibhai Adamali Dar & 2 others [2022] which provided That:“The Order of "Prohibition" issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi's Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction." (... ..) "Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of That power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."

244. The Applicants prayer for an order prohibiting the 1st Respondent from enforcing its decision or entertaining any other proceedings in relation to the dispute between the parties herein cannot be granted once the court refuses to grant the order of certiorari.

245. Having found no fault in the impugned Tribunals decision, the application for an order to prohibit the 1st Respondent from any further dealing with the Tribunal Civil Appeal whether by way of any further order, enforcement or otherwise whatsoever will serve no useful purpose, and I decline to grant the prayer.

246. The Applicant has asked this Honourable Court That the appeal be remitted for reconsideration by the Tribunal with directions That the Tribunal observe the provisions of the Act, the Regulations, the Trust Deed and the Rules made thereunder should the court decline the prayer for an order of prohibition. Having declined to grant the order for certiorari, this court finds no relevance to refer the matter back to the Tribunal.

Whether The Bank And The Trustees Are Entitled To The Reliefs Sought In The Application 247. Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 in which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held That: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 or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions 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 a 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 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 legislative Instrument by which such authority exercises jurisdiction to make a decision.”

248. The case of Republic v. Public Procurement Administrative Review Board & Another Ex-Parte Express DDB Kenya Limited [2018] eKLR is cited where the Court reiterated That judicial review is about the decision-making process and not the decision itself and further That it also involves determining whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.

249. The Applicant advanced an argument That:“This Tribunal has perused the record and examined all the evidence and in so doing noted That indeed, the Appellants produced a booklet dated January 1996 (Annexure 3 in the Appellant's Bundle of Documents) and a copy of the Standard Chartered Bank Kenya Limited lumpsum conversion Factors (annexure 8 in the Appellants bundle of documents) and an illustration of one of the appellants’ computations on whom those conversions facts were applied (annexure 9).154. The appellant produced a table of conversion factors (annexure 7) which they allege are new reduced conversion".All the documents the Tribunal referred to were not produced either through evidence or through an affidavit as required by Section 49 of the Act.”

250. The Tribunal proceeded to find That the 2nd Respondent had used wrong actuarial factors based on the contents of the annexure marked 7. It further found That the lumpsum conversion factors ought to have been 9% interest rate and 4% CPI as contained in the annexure marked 8 and without sworn evidence or affidavit.

251. On its part the Tribunal through the Affidavit of the CEO deponded as follows:1. That in considering which was the applicable Trust Deed and Rules to the Appellants, the Tribunal noted That the journey started with the creation of the Standard Chartered Bank Limited Kenya Pension Fund (SCBKPF) as a Defined Benefit scheme vide a TDR dated 3rd June 1975 (herein after “the 1975 TDR”) but which provided That it “…shall have effect for all purposes from and as if it had been executed…” on 1st June 1975. ” The Trustees of SCBKPF made various amendments to the 1975 Trust Deed and Rules. The amendments were effected through deeds of amendment dated 2nd January 1976, 30th July 1979, 15th April 1987, 12th September 1987, 1st March 1996, 1st June 1998, 16th July 1999, and 23rd November 1999. On 1st July 2006, the Trustees created a completely new defined contribution scheme named Standard Chartered Kenya Staff Retirement Benefits Scheme (SCKSRBS).2. That both the appellants and the 2nd – 12th Respondents had different interpretation as to the effect of the 1st July, 1999 TDR on the 1975 Trust Deed. The Appellants in their Written Submissions dated 7th March, 2022 argued That the effect of the said amendments were to change the Pension fund from a Defined Benefit to a Defined Contribution Pension Fund. The 2nd – 12th Respondents on the other hand were of the view That all other members of the 1st Scheme (being pensioners and deferred pensioners) at the effective date did not transfer their pension or deferred pension to the new defined contribution section but remained in the defined benefit section of the 1st Scheme with their benefits on the same terms and conditions and without any loss.3. That the Tribunal relied on various definitions including the definition of a “member” from the 1975 TDR to the 16th July, 1999 amendment and what effect, if any, the overhaul contemplated in the 16th July 1999 amendment would have on members’ rights. After relying on the above definition, the Tribunal was of the view That the 1975 TDR segregated its members into two classes named “B” and “C”.4. That the Tribunal also noted That all the Appellants in the Appeal joined the service of the 2nd Respondent on diverse dates after 1st January, 1960 and were therefore all categorized as “C” Employed Members under the 1975 TDR. The Tribunal was also of the view That the amendment of the SCBKPF TDR between 2nd January, 1976 and 1st June, 1998 (both dates inclusive), none of the said amendments had an effect of changing the classification of the Appellants as “C” members as originally contemplated by the 1975 TDR.5. That the Tribunal also noted That the 16th July, 1999 TDR provided That the effective date for transition from the 1975 TDR to the TDR of 16th July, 1999 was 31st December, 1998. This therefore meant That at the effective date, the defined benefit section of 16th July, 1999 TDR took effect retrospectively to 1st June, 1975. In determining whether such retrospective application of the 16th July, 1999 TDR was lawful, and if lawful, how it affected the present Appellants before the Tribunal, especially That section of the Appellants who retired before the effective date of the 16th July, 1999 TDR, the Tribunal relied on Black’s Law Dictionary (6th Edition) which defines retrospective law. The Tribunal also relied on the Constitution of Kenya 2010, specifically Article 50 (2) (n) which expressly prohibits retroactive or retrospective criminal law and further supported it with the cases of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR and the Supreme Court of India in the case of Mithilesh Kumari and another, vs. Prem Behari Khare, AIR 1989 SC 1247. 6.That after considering all the applicable laws, the Tribunal was of the view That where laws are merely declaratory, or they relate only to matters of procedure or evidence, such laws can be enacted to have retrospective effect. The Tribunal found That in part, the 16th July, 1999 TDR came into place to codify many of the amendments done between 2nd January, 1976 and 1st June, 1998 (both dates inclusive). The Tribunal also found That clause 3 of the 16th July, 1999 TDR is very clear That the makers of the TDR intended it to have effect retrospectively to 1st July, 1975. The Tribunal further found That the intention of the 2nd Respondent and the Trustees was That the 16th July, 1999 TDR was to take effect retrospectively and since such action does not offend the rule against retrospectivity as the Tribunal has gleaned from the above authorities, the Tribunal upheld the amendment.7. That another factor considered by the Tribunal was the effect of the total deletion of the 31 clauses and schedules of the 1975 TDR and substitution thereof by another 31 clauses and schedule of the 16th July, 1999 TDR. The Tribunal found That the Appellants were wrong in alleging That the effect of the 16th July, TDR was to change the entire scheme from a defined scheme into a defined contribution scheme. The Tribunal upheld the 2nd – 12th Respondents submissions That the 16th July, 1999 TDR continued the existing defined benefit scheme under the 1975 TDR system and opened a new window of a defined contribution section both of which schemes became closed schemes after the coming into place of the 1st July 2006 TDR. In its decision in terms of application of the correct TDR for the Appellants before the Tribunal, the Tribunal found That it does not matter whether they retired before or after the effective date of 31st December, 1998. The Tribunal found That the TDR applicable to all the Appellants in the matter at Bar is the 16th July 1999 TDR.8. That on the issue of whether the 1st Respondent (RBA) erred in finding That there was no fraudulent misrepresentation, concealment, and non-disclosure on the part of the 2nd – 12th Respondents by using new actuarial factors instead of those provided in the computation sheets and booklets sent to the Complainants (the Appellants), the Appellants submitted That the Respondents used incorrect actuarial factors in computing the cash values for both the deferred pensioners and the commuted values for immediate pensioners. The 2nd – 12th Respondents denied this allegation and stated That the actuarial factors applied to the computation of the Appellants’ benefits were proper and in conformity with the prevailing TDR and That the Appellants did not adduce any evidence in support of their Claim before the Tribunal showing each of their respective computations in contravention of the provisions of Section 107(1) of the Evidence Act and the celebrated phrase “he who alleges must prove”.9. That on the issue of admissibility and the standard of evidence to be adduced before the Tribunal, the Tribunal relied on section 49(3) of the Retirement Benefits Act. After examining the said section, the Tribunal was of the view That it is not strictly bound by the provisions of Section 107 of the Evidence Act and That the consideration on whether or not to rely on any evidence tabled before it is the relevance and probative value of the evidence in question. After examining all the evidence presented before the Tribunal, the Tribunal had to determine whether there was improper and fraudulent reliance on different actuarial factors by the Respondents other than those in the booklet produced by the Appellants.10. That the Tribunal was of the view That the information made available to the Appellants was misleading since the 2nd – 12th Respondents allowed them to believe That the only factors That would determine the cash equivalent values of their accrued pensions were those published in the booklet of January 1996. The Tribunal therefore found That there was misrepresentation, concealment and non-disclosure of the actual actuarial factors the 2nd – 12th Respondents intended to use in calculation of the Appellants benefits from those they provided to the Appellants at the time material to the dispute.11. That on the issue as to whether the 1st Respondent erred in finding That the 2nd - 12th Respondents used correct actuarial factors in computing the cash values for both the deferred pensioners and the commuted values for immediate pensioners, it was the Appellants claim in their Statement of Facts dated 19th May, 2021 the 2nd Respondent used an inaccurate formula and took into account incorrect actuarial factors in calculating the cash value for both the deferred pensioners and the commuted values for the immediate pensioners. It was the Appellants’ contention That 2nd Respondent ought to have used the correct lump sum conversion factors, That is, 9% interest rate and 4% CPI rate. The Appellants also urged That the 2nd - 12th Respondents did not take into account the Appellants’ housing allowances and the cost of living adjustment as envisaged under the 16th July 1999 Supplementary Deed and the January 1996 booklet and That the 2nd Respondent instead, used new conversion factors which were smaller than the factors previously published.12. That the Tribunal after carefully studying the documents produced before it by all the parties and having considered arguments on both sides, the Tribunal was of the view That the Appellants had made a clear case That the 2nd -12th Respondents used incorrect actuarial factors in computing the cash values for both the deferred pensioners and the commuted values for immediate pensioners. It also found That the 1st Respondent (RBA) was wrong in finding That the factors published by the Appellants as were not applicable to the Appellants only on account of the Appellants not having attained the NRA. The Tribunal further noted That, from the program of early retirement introduced by the 2nd Respondent, all the Appellants who retired having attained the age of 50 years were entitled to their commuted lump sums and pension immediately and all those Appellants who retired below 50 years of age were entitled to commuted lump sums immediately and their pension would be deferred until they attained 50 years of age.13. That on whether the 1st Respondent (RBA) erred in finding That the 2nd -12th Respondents were justified in failing to take into account the cost-of-living adjustment, the Appellants had in their complaint before the 1st Respondent alleged That the trustees failed to take into account the cost-of-living adjustments to pensions in their payments and based their claim on the actuarial valuation of 1997 and 2000 and on a fund administrator’s promise to an increase of 7. 5% and 6. 5% effective 1st July, 1998. The 1st Respondent found That the Appellants did not produce the documents relied on and dismissed the Appellants Complaint on this issue.14. That after carefully studying the evidence on record the Tribunal found That one of the promises given to those Appellants who retired before the age of 50 years was That their pension benefits at the time, they attained the age of 50 would include cost of living adjustments as was being done from time to time for existing pensioners. The Tribunal found That the adjustment to That notional salary was offered as part of the package of VERS (Voluntary Early Retirement Scheme) and That the 2nd – 12th Respondents failed, refused and/or neglected to fully implement their own programme. The Tribunal therefore found That the Appellants were entitled to cost of living adjustments under the VERS.15. That as to whether the 1st Respondent erred in finding That the 2nd -12th Respondents were correct in failing to take into account the housing allowance as per the 1999 Trust Deed and Rules (TDR) in payment of benefits to the Complainants, the Appellants were of the view That, in calculating their benefits, the Scheme should have included a housing allowance component in their pensionable salary. The 2nd – 12th Respondents raised an objection to the above assertion and the 1st Respondent agreed with them and held That in its view, the 16th July, 1999 TDR was not applicable to a majority of the Complainants as their services were terminated before the effective date of the 1999 TDR.16. That the Tribunal once again re-iterated its finding That the applicable TDR That ought to have been applied in computing the benefits was the one dated 16th July, 1999 and the same took effect retroactively to 1st of June, 1975. The Tribunal also reiterated That all Appellants whose pension benefits were calculated between 1st July, 1975 and 30th June, 2006 and were members of the Scheme at the effective date, were all, without exception, governed by the provisions of the 16th July, 1999 TDR from 31st December, 1998. The Tribunal found That the Respondents ought to have included the housing allowance component in their calculation of the benefits due to the Appellants.17. That on whether the 1st Respondent erred in finding That 2nd -12th Respondents were correct in failing to take into account expectations of future increases and payments, The Appellants in their Memorandum of Appeal dated 19th May, 2021 alleged That the 1st Respondent erred in law and in fact in failing to find That the Respondents did not take into account housing allowance as per the 1999 TDR and the expectations of future increases in payment. The 2nd – 12th Respondents asserted in their response That all the pension benefits were properly computed, and That reliance was placed on the correct actuarial factors.18. That in settling this issue, the Tribunal once again re-iterated its finding That the applicable TDR That ought to be applied in computing the benefits was the one dated 16th July, 1999 and the same took effect retroactively to 1st of June 1975. The Tribunal further relied on Rule 62 of the Rules of General Application of the 16th July, 1999 TDR. The Tribunal found That the Appellants’ claim is valid, and That the onus shifted to the 2nd Respondent to disprove the notion by the Appellants That expectation of future increases in payment was not factored in computing the pensionable benefits payable. The Tribunal was of the view That the Respondent ought to have provided computations detailing compliance with the provisions of the abovementioned rule and found That the 1st Respondent was wrong in reaching the conclusion That the Appellants were not entitled to future increases in their pension payments.19. That as to whether the 1st Respondent erred in in finding That the 2nd -12th Respondents were correct in paying back the scheme surplus to the sponsor which reduced the Complainants’ benefits, the question That arose before the Tribunal from the Appellants’ complaint is whether the 2nd Respondent ought to have taken possession of the surplus funds claimed, and whether the Commissioner of Income Tax had the power and authority, to grant the 2nd Respondent leave to take back the surplus. The Tribunal in applying rule 22 (c) of both the 3rd June, 1975 TDR and 16th July, 1999 TDR together with Income Tax (Retirement Benefits) Rules 1994, found That the Appellants had proved That the transfer of the surplus to the Bank was not done within the confines of the governing laws and TDR.That the Tribunal’s final orders were That the Appeal was allowed and the 1st Respondent’s decision and/or directions dated 22nd April 2021 was set aside.

252. This court has taken the liberty to rehash the above so as to make it clear That these are weighty observations and findings. They call for an in-depth merit analysis. In themselves, they are deep legal questions That call for the tendering of evidence, arguments submissions by all the parties if the court were to arrive at the legality of the finding. They are issues That are out of the purview and scope of judicial review. They are issues That can be best dealt with by the Court of Appeal.

253. In so holding I am guided by The Supreme Court in Petition No. 6(E007) of2022 Edwin Dande & Others v The Inspector General, National Police Service & Others at paragraph 85 [see page 33] the court held as follows:'It is clear from the above decisions That when party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.

254. I am in agreement with the 1st Respondent That the judicial review is only concerned with the decision-making process, not with the merits of the decision itself. The remedy of judicial review is concerned with reviewing an administrative decision and not the merits of the decision.

255. Under Section 11 of the Fair Administrative Action Act, the reliefs amenable to judicial review are specified as follows: -(1)In proceedings for judicial review under section 8 (1), the court may grant any order That is just and equitable, including an order-(a)declaring the rights of the parties in respect of any matter to which the administrative action relates;(b)restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner That is prejudicial to the legal rights of an applicant;(c)directing the administrator to give reasons for the administrative action or decision taken by the administrator;(d)prohibiting the administrator from acting in a particular manner,(e)setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;(f)compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;(g)prohibiting the administrator from acting in a particular manner,(h)setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions;(i)granting a temporary interdict or other temporary relief; or(j)for the award of costs or other pecuniary compensation in appropriate cases.

Costs: 256. The general rule flowing from Section 27 of the Civil Procedure Act, Cap 21, Laws of Kenya is That costs should follow the event. That is to say, the successful party should be awarded its costs. This general rule is elaborated by Justice Kuloba in his book, Judicial Hints on Civil Procedure, Vol. 1 at p. 99 as follows:“The first question is what is meant by "the event" in the proviso to subsection (1) of this section? The words "the event" mean the result of all the proceedings incidental to the litigation. The event is the result of the entire litigation. .... Thus the expression "the costs shall follow the event" means That the party who on the whole succeeds in the action gets the general costs of the action. (Emphasis provided).

257. It is this court’s finding That the Applicants did not succeed in securing the orders sought. They shall bear the costs of the Application.

Disposition: 258. It is this court’s finding and I so hold That The applicants have failed to prove That they are entitled to the reliefs sought in their Application or under Section 11 of the Fair Administrative Action Act.Social Transformation through access to justice and principles the That were generated by the Supreme Court in the Mitubell case are a tool That is intended to promote and fulfil the rights of the fragile members of the society who find themselves in vulnerable and delicate social economic positions. The nature and the structure of the retirement benefits Act is intended to insulate and protect the retirees during their old age.This court takes judicial notice of the fact That most of the pensioners are usually be senior members of our country who spent the better part of their lives building the Nation in various sectors like the banking industry.The best That the justice system can do for them after their retirement is to ensure That they enjoy access their pension and retirement benefits without having to spend years in court pursuing their rights.The Interested parties must have retired with the hope That they would access their retirement packages when the left the bank. They had a legitimate expectation That they would get their pension then. This was not to be. The 1st Respondents’ decision brought their dreams closer home when the Tribunal issued the structural interdicts which accords with the social transformation through access to justice vision and this court has a duty to promote this vision.

259. Ultimately it is this court’s finding That The Applicants have not satisfied this court That the decision of the 1st Respondent was materially influenced by an error and this court finds no reason to review the administrative action Section 7(2) (d) of The Fair Administrative Action Act.

Order:The Application dated 15th July 2022 is dismissed with costs.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY THIS 5TH DAY OF OCTOBER 2023J.CHIGITI (SC)JUDGE