Republic v Retirement Benefits Authority & another; Kilonzi & 119 others (Exparte Applicants) (All suing as members of the Zamara Fanaka Retirement Fund (Pension Scheme)) [2023] KEHC 26572 (KLR) | Judicial Review Orders | Esheria

Republic v Retirement Benefits Authority & another; Kilonzi & 119 others (Exparte Applicants) (All suing as members of the Zamara Fanaka Retirement Fund (Pension Scheme)) [2023] KEHC 26572 (KLR)

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Republic v Retirement Benefits Authority & another; Kilonzi & 119 others (Exparte Applicants) (All suing as members of the Zamara Fanaka Retirement Fund (Pension Scheme)) (Judicial Review E129 of 2021) [2023] KEHC 26572 (KLR) (Judicial Review) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26572 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E129 of 2021

JM Chigiti, J

December 15, 2023

Between

Republic

Applicant

and

Retirement Benefits Authority

1st Respondent

Zamara Fanaka Retirement Fund (Pension Scheme) (Formerly Alexander Forbes Financial Services East Africa Limited)

2nd Respondent

and

Abednego Musyoka Kilonzi & 119 others

Exparte Applicant

All suing as members of the Zamara Fanaka Retirement Fund (Pension Scheme)

Judgment

1. What is before this court is the Notice of Motion dated 30th June, 2022 wherein the applicant seeks orders that: -1. That an Order of Mandamus be issued to compel the Respondent to determine the Applicants complaint filed on 11th September, 2020 in accordance with the Retirement Benefits Act.2. That costs of this Application be provided for.

2. The Application is supported by the Statutory Statement and Verifying Affidavit sworn by William Malonza the 118th Applicant filed herein and on such other or further grounds as may be adduced at the hearing hereof.

Brief background 3. The Ex-Parte Applicants were employed by the ARM Cement PLC on diverse dates where they worked before they retired on various dates.

4. They were members of Zamara Fanaka Retirement Fund (Pension Scheme)

5. The Ex-Parte Applicants were dissatisfied with the non-payment of their pension benefits by the Trustees of the Scheme as a result of which they filed a complaint with the 1st Respondent dated 11th September, 2020 and filed on 11th September, 2020 in accordance with Section 46 of the Retirement Benefits Act.

6. They are troubled since the Respondent has still declined to act on their complaints without any justifiable cause or reason.

7. The Applicants have also sent numerous queries and follow-up letters to the Respondent reminding the Respondent of the pending Complaint but no responses whatsoever have been forthcoming to date as set out in the Letter dated 3rd August 2020. Issues for Determinationa.Whether the Ex-Parte Applicants were right in filing this matter before this Honourable Court.b.Whether the Ex-Parte Applicants are entitled to the prayers sought.

8. Section 48 of the Retirement Benefits Act No. 3 of 1997 states as follows;“(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.”

9. By dint of Section 48 of the Retirement Benefits 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 thus exercises appellate jurisdiction.

10. In the matter before you my Lord there is no decision by the Chief Executive Officer of the Retirement Benefits Authority as provided in the Retirement Benefits Act. It is therefore unfounded in Law for the Respondent to urge that the Ex-Parte Applicants ought to have approached the Retirements Benefits Appeals Tribunal as the first port of call for determination and resolution of the allegations being made it.

11. The 1st Respondent conduct is unconscionable for the 1st Respondent to contend that the Ex-Parte Applicants ought to have ventilated issues herein and seek Judicial Review orders before the Retirement Benefits Appeals Tribunal a quasi-judicial body with no jurisdiction to deal with Judicial Review matters.

12. The Supreme Court in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR extensively discussed the Jurisdiction of the Retirement Benefit Appeals Tribunal and held as follows;“The Retirement Benefits Appeals Tribunal [112] On the other hand, the Retirement Benefits Authority Appeals Tribunal is established under section 47 of the RBA Act. Its mandate is to hear appeals from the decision of the Authority or the CEO. The jurisdiction of the tribunal is donated by section 48 of the RBA Act. The section 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.”

13. 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.” [120] 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. In our view, 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 CEO appeal to the Retirement Benefits Appeals Tribunal.”

14. Based on the foregoing, we humbly submit that the Ex-Parte Applicants were right in filing this matter before this Honourable Court since there was no decision by the Chief Executive Officer or the Retirement Benefits Authority as provided in the Retirement Benefits Act that was that could be appealed from.

15. Reliance is also placed on Article 159(2)(b) of the Constitution of Kenya, 2010 provides that;“In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(b) justice shall not be delayed”

16. The excess of three years by the 1st Respondent to determine the Complaint is unjust and requires this Honourable Court’s intervention to remedy the same.

17. Article 47 of the Constitution of Kenya, 2010 provides that;(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

18. The Ex-Parte Applicants submit that they have fundamental rights to Social and Economic empowerment as per Article 43(1) (e) of the Constitution of Kenya, 2010 which have been breached by the Respondents who have declined to determine the complaint which purely is in regard to their pension benefits.

19. The Ex-Parte Applicants are elderly and Article 57 of the Constitution of Kenya, 2010 protects the Ex-Parte Applicants rights as older members of society with respect to pursue their personal development and to live in dignity and respect which action they cannot pursue due to the adverse actions of the Respondent.

20. The proceedings of Judicial Review only deal with the decision making process and not the merits of the case. A similar position was adopted by Kwach J, Okubasu and Omollo J. in the case of Municipal Council of Mombasa Petition No. 185 of 2001 Mombasa CA; the Learned judges clearly stipulates the limits of Judicial review by stating;“judicial review is concerned with the decision -making process, not with the merits of the decision itself. The court would only be concerned with the process leading to the making of the decision... In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”

21. The delay by the Respondents is tainted with violation of natural justice as the unwarranted delay to finalize the complaint violates the rules of natural justice which action is unfair on the part of the Applicants.

22. The 1st Respondent is mandated to determine the same pursuant to the Retirement Benefits Act and the Respondent’s charter. The mandate is hence statutory and cannot be done by another party apart from the Respondent.

23. Kenya National Examination Council-vs-Republic Ex-parte Geoffrey Gathenji Njoroge & Others (1997) eKLR quoted paragraph 90 Halsbury’s Law of England 4th Edition Volume 1 at 111 “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

24. In Abdi Kadir Salat Gedi –vs- Principal Registrar of Persons & Another JR 15 of (2014) eKLR the Honourable Judge relied on an authority Halsbury’s Laws of England 4th Edition Vol 1 at 111 Paragraphs 89 and 90 it is stated as follows:“The order of mandamus is of a most remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”

25. The Respondent is a statutory body with a public duty imposed on it to perform the task of determining complaints. The Respondent has been delaying the same despite them having knowledge of the detrimental consequence of the delay upon the Applicants who are elderly members of society violating their right to pursue justice.

26. The adverse actions by the 1st Respondent is in total disregard to their own Service Charter which stipulates that such complaints ought to be determined within a period of six months. In so acting, the 1st Respondent has misused and abused its powers to the prejudice of the Ex-Parte Applicants.

The 1st Respondents case 27. The 1st Respondent opposes the application through the replying affidavit of John Gakunu the Legal and Compliance Manager of the Respondent herein.

28. He confirms that the Respondent is a State Corporation established under Section 3 of the Retirement Benefits Act, (Act No. 3 of 1997) that is responsible, inter alia, for the regulation and supervision of the establishment and management of retirement benefits schemes.He confirms that the Ex-Parte Applicants filed a complaint with the 1st Respondent dated 7th September2020 pursuant to section 46 of the Retirement Benefits Act, Cap 197.

29. It is the Respondents case that the 1st Respondent’s through a letter dated 21st September,2020 responded to the Ex-Parte Applicants vide a letter dated 7th September 2020 noting that it was in receipt of the complaint and that it was in the process of seeking a response from the 2nd Respondent.

30. The 1st Respondent wrote to the 2nd Respondent on 21st September,2020 asking them to provide a detailed response to the issues raised within the next 30 days.

31. The 1st Respondent upon examining the purported complaint as presented by the Ex Parte Applicants in the complaint form and the facts thereto it became apparent that the Ex-Parte Applicants were seeking for Judgment to be entered against the Respondents jointly and severally and that the complaint was contrary to what is envisaged under Section 46(1) of the Retirement Benefits Act.

32. According to the 1st respondent, the purported orders sought in the complaint as presented could only be determined by a court of law which has authority to enter judgment upon hearing the parties and not within the preview of the 1st Respondent as it has no mandate to enter Judgments for parties.

33. It is the 1st respondents case that the Ex-Parte Applicants should therefore have presented a proper complaint and invoked the mandate in line with the provisions of section 46(1) of the Retirement Benefits Act so as to enable the 1st Respondent determine the same.

34. On the 21st October,2020 the 2nd Respondent wrote a letter addressed it to the Advocates representing the Ex-Parte Applicants and the 1stRespondent wherein it gave a response on the issues raised by the Ex-Parte Applicants notably;

35. Section 33 of the Retirement Benefits Act it is the responsibility of the employer as sponsor to make deductions and remit the same to the 2nd Respondent however due to the financial constraints by the sponsor ARM Cement PLC Ltd it failed to Honour its obligations in remitting its contributions.

36. The 1st Respondent had prior to the compliant written a letter dated 14th May, 2019 to the sponsor over its non-contribution and had threatened to invoke clause 53B of the Retirement Benefits Act and recover the unremitted contributions from the employer.

37. The sponsor ARM Cement PLC wrote to the 1st Respondent wherein they indicated that the sponsor had pursuant to Section 534(1) of the Insolvency Act ,2015 been placed under Administration effective 17th August,2018.

38. That under Section 560 of the Insolvency Act a moratorium by virtue of the statutory administration a moratorium was placed on all legal proceedings including enforcement actions against the company and all outstanding amounts were then to be settled were to be settled in accordance with the joint administration plan as approved by the administrators and as such the 1stRespondent could not enforce the same.

39. That upon being served with the said response the Ex-Parte Applicants appeared satisfied and did not raise any rebuttals on the same and the 1st Respondent was therefore surprised to see the current application.

40. The Application is in contravention to section 48 (2) of the Retirement Benefits Act. No. 3 of 1997, which provides that where any dispute arises between any person and the Authority as to the exercise of the powers conferred upon the Authority by the Act, either party may appeal to the Tribunal in such manner as may be prescribed.

41. It argues that the ex-parte applicant has not established grounds for issuance of a Judicial Review Order of MANDAMUS

42. The ex parte Applicants in failing to comply with the internal dispute resolution mechanisms as provided for under the Retirement Benefits Act is inexcusable, indolent and should not excite any lenient exercise of discretion from the Honourable Court.

2nd Respondents case 43. The 2nd Respondent opposes the application through the replying affidavit of Peter Wachira Maina, in the employment of ICEA LION Trust Company Limited as the Principal Officer.

44. ICEA Lion Trust Company Limited is the current Board of Trustees of Zamara Fanaka Retirement Fund, (the Fund), having been appointed as the Fund’s Corporate Trustee effective 8th July, 2021.

45. In the year 2014, ARM Cement Limited (the Company) applied to Alexander Forbes Financial Services (East Africa) Limited, expressing its desire to join Alexander Forbes Retirement Fund (Pension Section).

46. That the Company and Alexander Forbes Financial Services (East Africa) Limited on 1st October 2014 agreed to adopt Special Rules dated the same day in addition to the General Trust Deed and Rules of the Fund.

47. The Fund is presently known as Zamara Fanaka Retirement Fund.

48. That it was a requirement under the Fund that the Company was going to remit to the Fund retirement contributions on a monthly basis. The employer and employee were each to contribute 5% to the Fund.

49. That the monthly contributions aforesaid were not made regularly as agreed since the company was placed under Administration effective 17th August 2018 pursuant to Section 534(1) of the Insolvency Act. The fact that the Company was placed under Administration is a matter that has been in the public domain and thus within the knowledge of the Ex-Parte Applicants and 1st Respondent.

50. That the 2nd Respondent has always administered the Fund transparently and has kept its members updated on the position thereof and there have been no complaints.

51. That the 1st Respondent in a letter dated 14th May, 2019 copied to the 2nd Respondent, confirmed that it had been informed by the 2nd Respondent of the default by the Company in remitting its contributions. In the letter aforesaid, the 1st Respondent demanded from the Company the outstanding contributions as at 31st March, 2019 amounting to Kshs.16,423,051. 80.

52. That ARM Cement PLC (under Administration) in a letter dated 3rd July, 2019 informed the 1st Respondent that the company had an outstanding pension contributions amounting to Kshs.16,423,051. 80. (See page 19 to 20 for a copy of the letter dated 3rd July, 2019).

53. That in the aforesaid letter, ARM Cement PLC (under Administration) informed the 1st Respondent that pursuant to Section 560 of the Insolvency Act, a moratorium on legal proceedings (including enforcement actions) is triggered once a company is placed under Administration. The company’s administrators proposed to settle the arrears in accordance with the Joint Administrators’ plan as approved by the Creditors of the company.

54. That considering the moratorium on legal proceedings pursuant to Section 560 of the Insolvency Act, it was not possible to institute court proceedings against the Company to recover the unremitted monies to the Fund.

55. That ARM Cement PLC (under Administration) in their letter dated 3rd July 2019 confirmed that the outstanding pension contributions had been recorded as an unsecured claim against the Company.

56. That the 2nd Respondent in an email sent to the Company on 17th July 2019 forwarded the balance of unremitted contributions to the Company and asked it to urgently address the issue of outstanding monies.

57. That due to the efforts of the 2nd Respondent, the Company had remitted three payments in January to March 2019 as captured in the email sent on 17th July 2019.

58. That from the report of the Joint Liquidators of ARM Cement, now in liquidation, prepared in January 2023, it was recommended that the liquidators continue pursuing an orderly winding up of the affairs of the Company. The unremitted contributions continue to form part of the unsecured claims against the Company.

59. That the 2nd Respondent has performed its role as required by the law and the contrary has not been proved either by the 1st Respondent or Ex-Parte Applicants.

60. The 2nd Respondent has been wrongfully enjoined into these proceedings since it does not perform the role of listening to disputes under the Retirement Benefits Act.

61. Since the Ex-Parte Applicants did not lodge the dispute with the Retirement Benefits Appeals Tribunal as is required by the Retirement Benefits Act, the present proceedings are a non-starter.Analysis and determination:a.Does the court have jurisdiction?b.Can the court grant the reliefs sought?c.Fair administrative action:d.Legitimate expectation:e.Effects of delayf.The right to fair hearing:

The issue of jurisdiction: 62. I will start by restating the place of a challenge to the jurisdiction of this court and rely on the classic case of Samuel Kamau Macharia Vs KCB & 2 Others, (2012) eKLR where the Court held that:-“A Court's jurisdiction flows from either the Constitution or Legislation or both and that the court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by Law. Also relies on The Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR for the submission that a question of jurisdiction ought to be raised and decided at the earliest opportunity further that where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

63. Section 48(1) of the Retirement Benefits Act provides that any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within thirty days of the receipt of the decision.

64. R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte the National Super Alliance (NASA)

65. This doctrine is now of esteemed juridical lineage in Kenya.

66. The Court held that, “while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricism of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.

67. Informed by the fact that the thirty days’ statutory window for lodging an appeal to the Tribunal under Section 48(1) of the Retirement Benefits Act has already lapsed as well as read alongside the nature of the suit in that it involves a large number of litigants I find that the Applicants are eligible to the exception of the doctrine of exhaustion. This court has jurisdiction to hear and determine this application.

68. The 1st respondent confirms that it received the applicant’s complaint dated 7th September2020 pursuant to section 46 of the Retirement Benefits Act, Cap 197.

69. Wrote to the 2nd Respondent on 21st September,2020 asking them to provide a detailed response to the issues raised within the next 30 days.examined the purported complaint as presented by the Ex Parte Applicants in the complaint form and the facts thereto it became apparent that the Ex-Parte Applicants were seeking for Judgment to be entered against the Respondents jointly and severally and that the complaint was contrary to what is envisaged under Section 46(1) of the Retirement Benefits Act.

70. The 1st Respondent was therefore surprised to see the current application. The Application is in contravention to section 48 (2) of the Retirement Benefits Act. No. 3 of 1997, which provides that where any dispute arises between any person and the Authority as to the exercise of the powers conferred upon the Authority by the Act, either party may appeal to the Tribunal in such manner as may be prescribed.

71. From the foregoing, it is clear to me that the 1st respondent received the applicants’ complaint. Understood their case, analyzed the complained and arrived at the conclusion that it lacked jurisdiction since what they were seeking could only be granted through a court judgment.

72. The foregoing to me would have formed the substance and rich content of the determination of the Applicants application had the 1st Respondent taken time to hear the Applicant which it failed to do.

73. When the Applicant filed a complaint, they had a legitimate expectation that the dispute would be heard and determined within a reasonable time. This was never to be.

74. According to Harry Woolf, Jeffrey Jowell and Andrew Le Sueur at page 609 of the 6th Edition of De Smith’s Judicial Review, ‘Such an expectation arises where a decision maker has led someone affected by the decision to believe that he will receive or retain a benefit or advantage (including that a hearing will be held before a decision is taken)’. It follows therefore that the cornerstone of legitimate expectation is a promise made to a party by a public body that it will act or not act in a certain manner. For the promise to hold, the same must be made within the confines of law. A public body cannot make a promise which goes against the express letter of the law. In the case before me there is no evidence of a written or verbal promise made to the Applicant that its goods would be allowed in Kenya once he obtained the necessary licenses. One may argue that the legitimate expectation was based on the understanding that goods from Uganda would be admitted into Kenya at a duty rate of 0%. However, that argument cannot hold when one considers the fact that the Respondent has a statutory duty to ensure that all the necessary taxes for goods entering Kenya have been paid. The Applicant’s argument that its legitimate expectation was breached therefore fails.”

75. Republic vs. Attorney General & Another Ex Parte Waswa & 2 Others [2005] 1 KLR 280 it was held:“The principle of a legitimate expectation to a hearing should not be confined only to past advantage or benefit but should be extended to a future promise or benefit yet to be enjoyed. It is a principle, which should not be restricted because it has its roots in what is gradually becoming a universal but fundamental principle of law namely the rule of law with its offshoot principle of legal certainty. If the reason for the principle is for the challenged bodies or decision makers to demonstrate regularity, predictability and certainty in their dealings, this is, in turn enables the affected parties to plan their affairs, lives and businesses with some measure of regularity, predictability, certainty and confidence. The principle has been very ably defined in public law in the last century but it is clear that it has its cousins in private law of honouring trusts and confidences. It is a principle, which has its origins in nearly every continent. Trusts and confidences must be honoured in public law and therefore the situations where the expectations shall be recognised and protected must of necessity defy restrictions in the years ahead. The strengths and weaknesses of the expectations must remain a central role for the public law courts to weigh and determine.”

76. The court in Republic v Law Society of Kenya Disciplinary Tribunal & another Ex Parte Muema Kitulu [2018] eKLR considered the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 where it was 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. 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.”

77. This is a clear case of a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The applicants have established a case of Procedural Impropriety and I so hold.

78. The 1st Respondent is a State Corporation established under Section 3 of the Retirement Benefits Act, (Act No. 3 of 1997) that is responsible, inter alia, for the regulation and supervision of the establishment and management of retirement benefits schemes.

79. The 1st respondent did not inform the Applicants that it would not hear the complaint. It is rather casual for the 1st respondent to front an argument that upon being served with the 2nd respondents response the Ex-Parte Applicants appeared satisfied and did not raise any rebuttals on the same and the 1st Respondent was therefore surprised to see the current application.

80. The 2nd Respondent’s case delves into an in-depth merit informed approach to the issues before this court. I have reminded myself that the judicial review court does not look into the merits but the procedure.

81. His court declines the 2nd Respondents invitation to wade into that terrain on the guidance of the Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) held at paragraph 85 that:i."It is clear from the above decisions that when a 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"

82. Article 47(1) of the Constitution of Kenya, 2010 guarantees the Ex-Parte Applicants right to administrative action that is expeditious, efficient lawful and reasonable and Article 47(2) which promotes the Applicants right to be informed on the reason as to why the Respondent has declined to determine their complaint that was filed on 11th September, 2020.

83. The 1st Respondent is in breach of Section 4 and 5 of the Fair Administrative Action Act enjoins the 1st Respondent to conduct administrative action in an expeditious, efficient, lawful, reasonable, and procedurally fair manner and give reasons to the Ex-Parte Applicants on why they have taken inordinately longer period to act on their complaint which action they have never done via any form of correspondence despite them having full knowledge on the age of the complaint.

84. I am in agreement with the finding in the case of Republic v Retirement Benefits Authority Ex Parte Moses O. Ondingo & 5 others [2018] eKLR, in which the Applicants sought similar orders as herein where the Learned Justice G V Odunga;“Order 46. Accordingly, the order which commends itself to me and which I hereby grant is an order of mandamus compelling the Respondent to determine the applicant’s complaint filed on 28th April 2014 in accordance with the Retirement Benefits Act in the next sixty (60) days.”

85. Social transformation through access to justice cannot be realized if their statutory institutions do not embrace the dictating principles of fair administrative action. At statutory institution like the first respondent that deals with very fragile members of our society must be better for when it came to the promotion of social justice under Article 43 of the Constitution. Failure to hear and determine a claim brought by a frail retiree amounts to an assault of the rule of law under Article 10 of The Constitution. This court will not countenance that. I take judicial notice that an institution like the first respondent has a service charter that calls for quality services to the city’s entry that must be upheld. The first respondent has violated the Applicants’ right to fair hearing under Article 50 of The Constitution and the claimants are entitled to redress through an judicial review order of mandamus and I so order.

Disposition: 1. The applicant has proved that they are entitled to the orders sought.Order:1. An Order of Mandamus is hereby issued compelling the 1st Respondent to determine the Applicants’ complaint that was filed on 11th September, 2020 in accordance with the Retirement Benefits Act within Forty-five (45) days of today’s date.2. Costs to the Applicants.

Dated, signed and delivered at Nairobi this 15th day of December, 2023………………………………J. CHIGITI (SC)JUDGE