https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11288

Wambua & 146 others v Retirement Benefits Appeals Tribunal & 3 others (Judicial Review E086 of 2026) [2026] KEHC 11288 (KLR) (Judicial Review) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11288 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E086 of 2026 WM Musyoka, J July 23, 2026 Between Agnes Syokau Wambua & 146 others Applicant and Retirement Benefits Appeals Tribunal 1st Respondent The Attorney General 2nd Respondent and The Trustees of the Postal Corporation of Kenya Pension Scheme 1st Interested Party Retirement Benefits Authority 2nd Interested Party Judgment 1.The applicants moved this court by way of a motion, dated 25th March 2025, in which they seek an order of certiorari, to quash the judgement of the 1st respondent, dated 14th November 2024, in RBAT Appeal No. 13 of 2023; and an order of mandamus, to compel the 1st respondent to determine their appeal, filed on 6th December 2023, in accordance with the Retirement Benefits Act, Cap. 197, Laws of Kenya, and the Kenya Posts and Telecommunications Corporation Pension Scheme Rules. 2.The said motion is supported by the affidavit of the 1st applicant, Ms. Agnes Syokau Wambua, sworn on 25th March 2026. It is averred that the applicants are former employees of the Kenya Post and Telecommunications Corporation, and later the Postal Corporation of Kenya. It is averred that the assets of the Kenya Posts and Telecommunications Corporation Pension Scheme were transferred, in 1999, to the Trustees of the Telposta Pension Scheme. It is argued that that did not render the Kenya Posts and Telecommunications Corporation Pension Scheme Rules inapplicable, with respect to the rights of the applicants, on account of Rule 8 of the transition regulations of the Kenya Information and Communications Act, 1998. It is asserted that the applicants are entitled to have their benefits computed in accordance with the Kenya Posts and Telecommunications Corporation Pension Scheme Rules. The applicants were unhappy with the computation done by the Trustees of the Telposta Pension Scheme, and raised 2 complaints with the 2nd interested party, which were dismissed, on the basis that the computation had been properly done. 3.The applicants subsequently filed RBAT Appeal No. 13 of 2023, which was also dismissed. It is argued that the dismissal of the appeal was irrational, for it was assumed that Rule 8 of the transition regulations of the Kenya Information and Communications Act, 1998, had preserved the benefits of the applicants, while at the same time subjecting the applicants to the pension rules of the 1st interested party. It is also asserted that there had been a wrong interpretation of Rule 8 of the transition regulations of the Kenya Information and Communications Act, 1998, and sound legal principles had been disregarded. 4.The first response to the application is by an affidavit of CPA Peter Kibet Korir, sworn on 6th May 2026, who is the Trust Secretary of the 1st interested party herein. It is averred that the applicants were heard in RBAT Appeal No. 13 of 2023, on the applicable law, which included the Retirement Benefits Act, the Postal Corporation of Kenya Trust Deed and Scheme Rules, the former Scheme Rules Scheme Provisions, Legal Notice No. 154 of 1999 and Rule 8 of the transition regulations of the Kenya Information and Communications Act, 1998. Thereafter, a detailed and well-reasoned judgment was delivered, on 14th November 2024, dismissing the appeal, and affirming that the decision of the 2nd interested party had properly applied the Postal Corporation of Kenya Penson Scheme Rules in determining the benefits of the applicants. It is asserted that the 1st respondent was functus officio, and had no further jurisdiction to re-open, re-hear and re-determine the appeal. It is further asserted that these judicial review proceedings are not properly legally founded. It is submitted that there was no pending statutory duty capable of being compelled by way of a mandamus order. A copy of the judgment, in RBAT No. 2 of 2021, between the applicants and the interested parties, is attached. 5.The second response to the application, is by way of an affidavit, sworn by Mr. Antony Kiarahu, the Deputy Director, Legal Services, of the 2nd interested party. It is averred that no act of illegality, irrationality, procedural impropriety, bad faith or excess jurisdiction has been established. It is further averred that the 2nd interested party properly exercised its mandate, and decided the matter based on the applicable Trust Deed and the Scheme Rules. The applicants are said to be inviting the court to re-visit the merits of the decisions of the 1st respondent, and the findings of the 1st interested party. It is asserted that these proceedings are a disguised appeal. 6.None of the respondents reacted to the application, by filing responses in one form or other. 7.Directions were given, for disposal of the application, by way of written submissions. 8.The written submissions by the applicants turn on 3 issues, whether the 1st respondent misinterpreted Rule 8 of the transition regulations of the Kenya Information and Communications Act, 1998, in determining the applicants pension benefits; whether the decision, dated 14th November 2024, is irrational, unreasonable, procedurally unfair and tainted with illegality; and whether the threshold for judicial review orders of certiorari and mandamus has been met. No case law has been cited 9.The first interested party has identified only 1 issue, whether the applicants have met the legal threshold for the grant of judicial review orders of mandamus and certiorari, particularly where the relief sought seeks to direct the quasi-judicial body to perform a statutory duty in a specific and pre-determined manner, and to challenge a decision already determined on its merits. The decisions, in Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] eKLR [1997] KECA 58 (KLR); Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300; Municipal Council of Mombasa vs. Republic & another [2002] eKLR [2002] KECA 8 (KLR); Republic vs. Retirement Benefits Appeals Tribunal & 2 others; Mumo & 168 others (Exparte) [2023] KEHC 766 (KLR) and Republic vs. Retirement Benefits Appeals Tribunal; Post Office Savings Bank & another (Interested Parties); Kalume & 75 others (Ex parte Applicant) [2025] KEHC 5419 (KLR). 10.The 2nd interested party submits around 2 key issues, on whether the applicants have established any ground for judicial review, and whether they have established why they joined the 2nd interested party to these proceedings. Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300; Trusted Society of Human Rights Alliance vs. Mumo Matemu & 5 others [2014] eKLR [2014] KESC 32 (KLR); Muruatetu & another vs. Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR), Mumba & 7 others vs. Munyao & 148 others [2019] KESC 83 (KLR) and Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others [2014] eKLR [2007] KECA 132 (KLR), are cited. 11.I believe that there is only a single issue for determination, and that is whether a case has been established for the orders sought. 12.Judicial Review looks at the process, and not the merits of the decision. From the filings, by the applicants, inclusive of their written submissions, it would be clear that they seek to convert this court into an appellate court, for they invite it to re-examine and re-evaluate the evidence tendered before the respondents, and arrive at its own independent decision. This court does not play such a role, in judicial review proceedings. 13.In Municipal Council of Mombasa vs. Republic & another [2002] eKLR [2002] KECA 8 (KLR), the court expressed itself as follows, on the matter of what judicial review entails:“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 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 irrelevant matters. The court should not act as a court of appeal over the decider which would involve going into the merits of a decision itself, such as whether they were or there was not sufficient evidence to support the decision. It is the duty of the decision maker to comply with the law in coming to its decision and common sense and fairness demand that once the decision is made, it is his duty to bring it to the attention of those affected by it more so where the decision maker is not a limited liability company created for commercial purposes but it a statutory body which can only do what is authorized by the statue creating it and, in the manner, authorized by statute.” 14.In Republic vs. Retirement Benefits Appeals Tribunal; Post office savings Bank & Another (interested Parties); Kalume & 75 others (Exparte Applicant) (2025) KEHC 5419(KLR), the court asserted that “Judicial Review is not an appeal mechanism.” 15.I have very closely read through the judgment in RBAT Appeal No. 13 of 2023, delivered on 14th November 2024, which I am hereby invited to re-visit, for purposes of quashing, so that the 1st respondent can re-hear it, and determine it, based on the Retirement Benefits Act and the Kenya Posts and Telecommunications Corporation Pension Scheme Regulations. 16.I have noted that the issues herein have been litigated and re-litigated, before the 2nd interested party, the 1st respondent and the court. It was initially before the 2nd interested party, in 2014, where the complaint, by the applicants, was that their pensions had been calculated and paid under the rules of the Postal Corporation of Kenya Pension Scheme, instead of the Kenya Posts and Telecommunications Corporation Pension Scheme Regulations, arguing that that resulted in a reduction of their benefits. When the 2nd interested party delayed in making a determination, the applicants moved this court, in HCJR No. 499 of 2017, to compel the 2nd interested party to decide their complaint. They got the order on 22nd February 2018. Following the judgment of 22nd February 2018, the 2nd interested party, by a letter dated 23rd April 2018, directed the 1st interested party to re-calculate the applicants’ benefits, for the services that they had rendered at different periods, in accordance with the applicable rules. 17.A determination was rendered on 19th April 2021. The applicants were aggrieved by it, and initiated RBAT No. 2 of 2021, seeking that their pensions be calculated in accordance with the provisions of the Kenya Posts and Telecommunications Corporation Pension Scheme, and not the 3 different schemes established after the split of the Kenya Posts and Telecommunications Corporation into 3 units, as directed by the 2nd interested party. RBAT No. 2 and of 2021 was heard together with RBAT No. 3 and of 2020. In the end a determination was rendered on 28th April 2022, where the matter was referred back to the 2nd interested party for fresh consideration on the merits. 18.The 2nd interested party rendered a decision on 10th November 2023, where it reiterated that the pensions benefits were properly computed, based on the Postal Corporation of Kenya Pension Scheme. The applicants were aggrieved by the determination, and filed RBAT Appeal No. 13 of 2023, arguing that computation under the Postal Corporation of Kenya Pension Scheme was not the correct approach, and that the calculations ought to have been based on the provisions of the Kenya Posts and Telecommunications Corporation Pension Scheme. The interested parties argued, in response, that the services of the applicants were initially under the Kenya Posts and Telecommunications Corporation, hence they were members of the Kenya Posts and Telecommunications Corporation Pension Scheme at that time. Their services were later transferred or transitioned to the Postal Corporation of Kenya, after the Kenya Posts and Telecommunications Corporation was split up, and that the applicants became employees of the Postal Corporation of Kenya, and members of the Postal Corporation of Kenya Pension Scheme, subsequent to the transition from the Kenya Posts and Telecommunications Corporation, and, therefore, they were subject to the Trust Deed and the Rules of the Postal Corporation of Kenya Pension Scheme. 19.The 1st respondent rendered a detailed and well-reasoned decision on 14th November 2024, where it delved into the history of the matter, from the split of the Kenya Posts and Telecommunications Corporation into 3 units, and how that affected the pension scheme then in operation, and how the pension arrangements in place were then transitioned to the Telposta Pension Scheme, and later to the Postal Corporation of Kenya Pension Scheme, with respect to the applicants. The issue of Legal Notice No. 154 of 1999, where the Kenya Posts and Telecommunications Corporation had transferred assets to the Telposta Pension Scheme, was also addressed. It was noted that that was done to meet the pension liability for members, who had accumulated pension benefits under the Kenya Posts and Telecommunications Corporation. The Telposta Pension Scheme later transferred assets and liabilities to the Postal Corporation of Kenya Pension Scheme, to secure the accumulated pension benefits for the employees of the Kenya Posts and Telecommunications Corporation, who had transitioned to the Postal Corporation of Kenya Pension Scheme, such as the applicants. The 1st respondent also delved into Rule 8 of the transition regulations of the Kenya Information and Communications Act, 1998, and interpreted the provision to mean that it was to facilitate the transition from the Kenya Posts and Telecommunications Corporation Pension Scheme to its successors, the Telposta Pension Scheme and the Postal Corporation of Kenya Pension Scheme. As a transitional measure, Rule 8 of the transition regulations of the Kenya Information and Communications Act, 1998, was not intended to operate permanently. The Kenya Posts and Telecommunications Corporation Pension Scheme was later wound up, and was succeeded by the Postal Corporation of Kenya Pension Scheme, for the benefit of those who had become employees of the Postal Corporation of Kenya, such as the applicants, whereupon the utility of the Rule 8 of the transition regulations of the Kenya Information and Communications Act, 1998, was spent. The appeal, in RBAT Appeal No. 13 of 2023, was dismissed, on that basis. 20.The applicants invite me to re-visit that decision, in RBAT Appeal No. 13 of 2023, and quash it, and thereafter direct the 1st respondent to consider the matter afresh, so as to calculate or compute their benefits based on the Kenya Posts and Telecommunications Corporation Pension Scheme. Exercising a judicial review jurisdiction, I ought not delve into the merits of the matter, by deciding whether the calculation or computation should be based on the Kenya Posts and Telecommunications Corporation Pension Scheme or by the Postal Corporation of Kenya Pension Scheme. That is not for me, that is the mandate of the 1st respondent and the 2nd interested party, and both have discharged it. Whether their determinations, on the dispute, relating to how the computation ought to be done, were right or wrong, on the merits, is not something that I should get into, in judicial review proceedings. 21.My remit is looking at whether the process was proper, in terms of whether the applicants and the other parties got a fair hearing, were given time to present their case, and, generally whether the administrative tribunals handled the whole process of hearing them properly. There was back and forth, between the 1st respondent and the interested parties, and even before the court, before RBAT Appeal No. 13 of 2023 was eventually mounted and determined with finality. The applicants were entertained and heard by all 3 judicial and quasi-judicial bodies. I have very closely scrutinized the judgment in RBAT Appeal No. 13 of 2023, and I have noted that the applicants and the interested parties were all given a fair chance before the 1st respondent, to present their respective cases, and their respective cases were narrated and analysed in the said judgement, before the determination was made. I am not at all persuaded that the applicants were not heard, or were denied an adequate chance to present their case. 22.What the applicants seek, in the instant proceedings, is similar to what they sought and obtained in HCJR No. 499 of 2017, when the High Court directed the 2nd interested party to determine their complaints. The 2nd interested party complied, and arrived at the same determination as that in RBAT Appeal No. 13 of 2023. The matter was then taken to the 1st respondent, who directed that the matter be re-heard by the 2nd interested party. The 2nd interested party came to the same conclusion, as that it had arrived at previously. The applicants escalated the matter to the 1st respondent, in RBAT Appeal No. 13 of 2023, and the 1st respondent agreed with the finding and holding of the 2nd interested party. This is beaten track; it has been trodden before. There is dancing at the same spot, and moving around in circles. 23.All the issues, that the applicants raise in these proceedings, were exhaustively addressed by the 1st respondent in that judgement, in RBAT Appeal No. 13 of 2023. The 1st respondent was properly within its mandate to address those issues. The matter cannot be re-opened, in judicial review proceedings, to be re-considered on the merits, in the manner proposed by the applicants. It would seem that the applicants have a set mind on how they would like the courts and tribunals to determine their matter. Their case, for review, is not supported by the law. They should appreciate that there is an end to everything. The tribunals and administrative bodies have taken a position on the issue, on the merits, based on the applicable law, and they cannot be compelled to decide otherwise. Litigation has to come to an end. The court cannot compel a tribunal to determine a matter in a particular way, as sought, by the applicants, in prayer 2 of their motion, for the mandamus order, which seeks to compel the 1st respondent to re-visit the matter, and to direct the 1st respondent to decide the matter in the way the applicants would like it to be decided. 24.The applicants have not established that their application, dated 25th March 2026, reaches the threshold, for grant of the judicial review orders that they seek. Consequently, the same is not merited, and I hereby dismiss it. In case the applicants are aggrieved by this order, I would encourage them to move to a higher court, seeing that this is the second time the High Court is dealing with this matter. To bring the litigation to a close, let them seek the opinion of the appellate court, in this case the Court of Appeal, where Judges sit in panels of 3 or 5, and where there would be more wisdom, for 2 or more heads are better than 1. There shall be no order on costs. Orders accordingly. DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, THIS 23RD DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMs. Atieno, instructed by Koceyo & Company, the Advocates for the applicants.Mr. Chebukosi, instructed by Simba & Simba, the Advocates for the 1st interested party.Mr. Andrew Moenga, Advocate, instructed by the Retirement Benefits Authority, the 2nd interested party.