[2013] KEHC 2256 (KLR)
The court held that the existence of a statutory appeal mechanism under section 48 of the Retirement Benefits Act does not oust the jurisdiction of the High Court to entertain judicial review proceedings, especially where there are allegations of failure to follow due process. The court found that its constitutional...
Source-derived case information.
- Citation
- [2013] KEHC 2256 (KLR)
- Parties
- Applicant: Rev. Joshua Kipkemei; Applicant: Rev. George Adamba; Applicant: Rev. Jotham Mativa; Applicant: Rev. Luke Oduor; Applicant: Rev. Elisha Kimaiyo; Respondent: Chief Executive Retirement Benefit Authority
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 20 of 2013
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; judicial review application to proceed
- Legal Topics
- Judicial Review, Jurisdiction of High Court, Retirement Benefits Act, Statutory Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rev. Joshua Kipkemei
Applicant
Rev. George Adamba
Applicant
Rev. Jotham Mativa
Applicant
Rev. Luke Oduor
Applicant
Rev. Elisha Kimaiyo
Applicant
Chief Executive Retirement Benefit Authority
Respondent
Procedural Posture
Judicial Review / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain the judicial review application in light of the Retirement Benefits Act.
- 2 Whether the applicants ought to have filed an appeal under section 48 of the Retirement Benefits Act instead of seeking judicial review.
- 3 Whether statutory provisions can oust the constitutional mandate of the High Court.
Ratio Decidendi
The court held that the existence of a statutory appeal mechanism under section 48 of the Retirement Benefits Act does not oust the jurisdiction of the High Court to entertain judicial review proceedings, especially where there are allegations of failure to follow due process. The court found that its constitutional mandate under Article 165 cannot be curtailed by statute, and that judicial review remains available as a remedy for procedural impropriety. Accordingly, the preliminary objection challenging the court's jurisdiction was disallowed, and the matter was ordered to proceed to hearing on the merits.
Court Disposition
preliminary objection dismissed; judicial review application to proceed
Orders
- The preliminary objection is disallowed.
- The notice of motion is to be listed for hearing.
Full Case Text
Judgment text and source record
27 paragraphs
ORIGINAL
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
JUDICIAL REVIEW NO. 20 OF 2013
REV. JOSHUA KIPKEMEI........................................................1ST APPLICANT
REV. GEORGE ADAMBA.........................................................2ND APPLICANT
REV. JOTHAM MATIVA..........................................................3RD APPLICANT
REV. LUKE ODUOR.................................................................4TH APPLICANT
REV. ELISHA KIMAIYO............................................................5TH APPLICANT
AND
CHIEF EXECUTIVE RETIREMENT BENEFIT
AUTHORITY.......................................................................................RESPONDENT
R U L I N G
1). This ruling is based on the preliminary point of law raised by the respondent pursuant to the applicant's application dated 6-8-2013.
The gist of the said objection is that this court does not have jurisdiction pursuant to the provisions of section 48 of the Retirement Benefits Act as well as section 5 and 26 of the same Act.
According to the respondent what the applicant was supposed to do was to file an appeal in line with section 48 thereof.
2). The counsels for the respondent as well as the interested party have opposed the same arguing that this court has the relevant jurisdiction.
I have perused the said section relied on by the objector/respondent. The same stipulates what an aggrieved party is required to do as well as stipulating the powers of the Authority. Section 26 (2) stipulates the powers of the trustees.
3). I respectfully disagree with the applicant's point of view. The application before me is one of judicial review which any party can apply as long as due process is not followed. A cursory look at the notice of motion raises such a complaint of due process among others.
4). Consequently, I do not agree that this court is not seized of jurisdiction. In any case the mandate of this court is enshrined in the constitution and one cannot purport it through a to curtail it through a statute.
5). I do disallow the said preliminary objection and order that the notice of motion be listed down for hearing.
6). I do note also that while this ruling was pending the applicant's filed another application under certificate of urgency dated 13-8-2013 in which they sought interim orders pending the decision of the substantive notice of motion. I did grant them, the interim orders.
In the interest of justice it would be fair and reasonable to extend the said orders till the substantive application is determined.
Orders accordingly.
Dated, signed and delivered at Kisumu this 9th day of September, 2013.
H.K. CHEMITEI JUDGE
HKC/va