https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2264

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT** **NAIROBI** (ON Makau J on 30th July 2026) **CAUSE NO. E1274 OF 2025** **CHRISTINE ACHIENG OPIYO….……………………….CLAIMANT** **-VERSUS-** **NSSF BOARD OF TRUSTEES………….…………...1ST RESPONDENT** **NSSF MANAGING TRUSTEE/CEO……………….2ND RESPONDENT** **NSSF MANAGER BENEFITS……………………….3RD RESPONDENT** **TEACHERS SERVICE COMMISSION ……………4TH RESPONDENT** **PS MINISTRY OF LABOUR AND** **SOCIAL PROTECTION…………………………….. 6TH RESPONDENT** **CS MINISTRY OF LABOUR AND** **SOCIAL PROTECTION……………………………..7TH RESPONDENT** **RULING** **Introduction** 1. This Ruling relates to the 1st, 2nd and 3rd Respondents’ Notice of Preliminary Objection dated 6th March 2026 urging the Court to strike out the suit with costs for the reason that this Honourable Court lacks jurisdiction to hear and determine the matter under section 2, 46(1) and 48 of the Retirement Benefits Act. 2. The Preliminary Objection was opposed by the Claimant by filing Grounds of Opposition dated 9th March 2026, thus: - 3. That the Notice of Preliminary Objection is incurably defective, misconceived and hinged on the wrong Principles of Law and Facts. 4. That the Preliminary Objection as presented is a wanton abuse of the court process, scandalous, frivolous, vexatious and intended to embarrass the Court. 5. That the Retirement Benefits Appeals Tribunal as established under Sections 2, 46, 47 & 48 of the Retirement Benefits Act lacks the jurisdiction to hear the current claim and dispute between the Claimant and the Respondents because: - 6. The Claimant's Claim is a suit that has been filed vide the Employment Act, Cap 226 (2007) Revised Edition 2012, Sections 20(1), 2(b) & (c), 21, 25(1), 51(1), (2)a, b, c, d, e, f & 4, 73(1)a, b, 2(a), 3, 4, 5a, b & 6, 74(1), 75, 79 & 87. 7. The Claimant's Claim is a suit touching on a direct legal action against trustees being the 1st, 2nd & 3rd Respondents alongside the employer being the 4th Respondent and parent ministry's PS & CS being 5th & 6th Respondents. 8. The Claimant's Claim is a suit pre-dating the Act, being a dispute relating to complaints regarding pension schemes that arose before 8th October 2000, which is the date the RBA Enabling Regulations came into force. 9. That vide other Enabling Laws as enshrined in the Promulgated 2010 Constitution and Provisions of The Rules of Natural Justice, the purported Preliminary Objection is aimed at arm-twisting the Claimant from a valid legal process without any evidence adduced by the Respondents. 10. That the Preliminary Objection does not meet the evidentiary threshold of a Preliminary Objection's Legal Grounds, thus not adequate to dispose of the Claimant's valid Claim. 11. That the Preliminary Objection is a conflict of interest because the 1st, 2nd & 3rd Respondents have not objected to the Claim by way of filing an opposing Response to the Claim with ascertained evidence. 12. That the Preliminary Objection does not meet the legal threshold as set out in the celebrated case of **Mukhisa Biscuit Manufacturers Ltd. v West End Distributors Ltd. [1969] E.A. 696**. **Facts** 1. The Claimant was employed in 1982 and retired on 21st January 2025, after serving the country for 43 years. On 17th December 2025, she filed a Statement of Claim dated even date alleging that the respondents had failed to remit her savings plus interest totaling to Kshs. 2,128,809.60. The amount is computed using a monthly rate of Kshs.720 x 12 months x 43 years. 2. She prayed for an order directing the respondents to issue her with a statement of all her remittances from January 1982 to January 2025 and then deposit the entire 2,128,809.60 into her account. She also prayed aggravated general damages for unfair discrimination and exposure to poverty and sickness. 3. According to paragraph 6 of the Claimant's Statement of Claim, the suit is based on the following provisions of the law: - 1. NSSF Act cap 258 2. NSSF Act 2013 3. Article 10 43 (1)(e) 57 and 73 of the Constitution of Kenya 4. Retirement Benefits Act 5. Pensions Act 4. None of the respondents filed a substantive response to dispute the claim save for the instant preliminary objection. The only issue for determination is whether the court has jurisdiction to entertain the claimant’s suit. **Submissions** 1. The 1st, 2nd and 3rd Respondents filed their Submissions dated 11th March 2026. In brief, they submitted that the Claimant's suit is misconceived, incompetent and fatally defective and that this Honourable Court lacks jurisdiction to hear and determine the Claimant's suit, since it under the domain of the Chief Executive Officer of the Retirement Benefits Authority and the Appeals Tribunal established under the Retirement Benefits Act. 2. They further submittted that the issues that the Claimant seeks to be determined by the court are within the ambit of Section 2, 46(1) and 48 of the Retirement Benefits Act of 1997 revised edition 2022. The said provisions confer jurisdiction on the Chief Executive Officer of the Retirement Benefits Authority to review any grievances by any member of a scheme arising from the decision of a manager, administrator, custodian or trustees of the retirement benefits scheme. 3. They submitted that Section 2 of the Retirement Benefits Act defines "member" a of a retirement benefits scheme to include a person entitled to or receiving a benefit under a retirement benefits scheme. They contended that the Claimant is a member of the National Social Security Fund thus falling under the ambit of the RBA Act. The argued that Section 2 of the National Social Security Act defines a member to mean a person who is registered as a member of the Provident Fund or Pension Fund pursuant to the Act. 4. The Respondents submitted that the issue of jurisdiction is a pure point of law and that the Claimant has not demonstrated that she has presented her grievances to the Chief Executive Officer and the Appeals Tribunal and that she is still dissatisfied with the decisions of the two fora. 5. The Respondents submitted that benefits under the Fund are dependent on the contributions actually remitted to the Fund by the employer and the member and can only be processed upon compliance with the statutory procedure for lodging a claim for benefits. 6. The Respondents further urged that the principle of exhaustion of remedies has not been adhered to by the Claimant. They further urged that courts have long stated that where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction, and instead give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance. 7. The Claimant filed her Written Submissions dated 13th March 2026, contending that the Preliminary Objection is defective and that the 1st, 2nd and 3rd Respondents ought to have filed an application before the High Court for judicial review determination, and not a defective Preliminary Objection which has not met the legal threshold. 8. The Claimant submitted that the Judicial Review at the High Court instead of the instant Objection. She acknowledged that Section 46 of the RBA Act vests the original jurisdiction upon the CEO as proper forum for launching a complaint, but argued that his case is filed based on issues outside the scope of jurisdiction of the CEO. 9. The Claimant further submitted that the Preliminary Objection herein does not meet the legal threshold as set out in the celebrated case of **Mukhisa Biscuit Manufacturers Ltd. -v- West End Distributors Ltd. [1969] E.A. 696**, and as such the same should be dismissed with orders as to costs to the Claimant. 10. The Claimant relies on the case of **Oraro v Mbaja (2005) 1 KLR 141**, where it was held that: - ***"Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its Foundation from Factual Information which stands to be tested by Rules of Evidence."*** 1. To emphasize her case, she relied on the case of **Henry Wanyama Khaemba -v- Standard Chartered Bank Ltd & Another (2014) eKLR**, **George Kamau Kimani & 4 Others v County Government of Trans Nzoia & Another (2014) eKLR**, and **United Insurance Co. Ltd -v- Scholastica A. Odera, Kisumu High Court Civil Appeal No. 6 of 2005**. 2. The Claimant submitted that Article 47(1) of the Constitution grants a fundamental right to every person to have a fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and this Honourable Court should not allow the 1st, 2nd and 3rd Respondents to take away this right from the Claimant by upholding this defective Preliminary Objection. 3. The Claimant further submitted that Article 159(2)(d) of the Constitution provides that justice shall be administered without undue regard to procedural technicalities. For emphasis, she relied on the case of **Abdurazak Abdulrehman Adam -v- Aslam Abdulrehman Adam & 3 others (2021) eKLR**. and **Kenya Ports Authority v Kenya Power & Lighting Co. Limited (2012) eKLR.** 4. Finally, she submitted that her suit is rightfully before this Honourable Court and prayed for the objection to be dismissed with costs. **Analysis** 1. Having considered the material before the court, I have no doubt that the objection herein raises a pure point of as it raises the issue of jurisdiction of the court to determine the instant suit. In **Mukhisa Biscuit Manufacturers Ltd. v West End Distributors Ltd. [1969] E.A. 696**, the Court held: - ***“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implications out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. As regards the merits of the objection, the Respondents contended that this Honourable Court lacks jurisdiction to hear and determine the Claimant's suit, since the dispute falls within the domain of the Chief Executive Officer of the Retirement Benefits Authority and the Appeals Tribunal established under the Retirement Benefits Act. 2. Section 46(1) of the Retirement Benefits Act provides that : ***“Any member of a scheme who is dissatisfied with a decision of the manager, administrator, custodian or trustee of the scheme may request, in writing, that such decision be reviewed by the Chief Executive Officer with a view to ensuring that such decision is made in accordance with the provisions of the relevant rules or the Act under which the scheme is established.”*** 1. There can be no doubt that the above section confers jurisdiction on the Chief Executive Officer of the Retirement Benefits Authority to review any grievances by any member of a scheme arising from the decision of a manager, administrator, custodian or trustees of the retirement benefits scheme. It is clear that the powers of adjudication of disputes arising from the RBA Act is given the CEO in the first instance while the appellate jurisdiction is donated to the Retirement Benefits Appeal Tribunal by dint of Section 48 and 49 of the Act. 2. The foregoing position was clarified by the Supreme Court in the case of **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, Petition No.3 of 2016**. 3. In this case the Claimant has not demonstrated that she has presented her grievances to the Chief Executive Officer and the Appeals Tribunal before approaching this court. Consequently, I find that the claimant has failed to follow the statutory procedure set out under the RBA Act and thereby rendered the suit premature. 4. In the case of **Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 others, Application No.2 of 2011 [2012] eKLR**, the Supreme Court held that a court's jurisdiction flows from the Constitution or legislation or both it cannot arrogate to itself jurisdiction exceeding that which is conferred by law. 5. Likewise, the Court of Appeal in the case of **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR**, held as follows: - ***"I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."*** 1. As noted above, Sections 46-49 of the Retirement Benefits Act provide for a statutory remedy which the Claimant ought to have first exhausted before filing this claim in Court. The Claimant placed reliance on Article 47(1) and Article 159(2)(d) of the Constitution, among other provisions of the law to impugn the objection, however, I find that the said provisions do not oust the requirement that, the statutory remedies provided under the Retirement Benefits Act must first be exhausted before invoking the jurisdiction of this Court. 2. The principle of exhaustion of remedies is well established in our jurisprudence. Thus, where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction and give deference to the dispute resolution bodies established by statutes to deal with such specific disputes in the first instance. **Conclusion** 1. I have found that the issue of jurisdiction is a pure point of law and is properly raised by way of Preliminary Objection. I have further found that Section 2, 46(1) and 48 of the Retirement Benefits Act confer jurisdiction on the Chief Executive Officer of the Retirement Benefits Authority to adjudicate any grievances by any member of a scheme arising from the decision of a manager, administrator, custodian or trustees of the retirement benefits scheme. 2. I have further found that any person aggrieved by a decision of the Authority or of the Chief Executive Officer may appeal to the Retirement Benefits Appeals Tribunal under Section 48 and 49 of the Retirement Benefits Act. 3. Finally, I have also found that the Claimant has not demonstrated that she has exhausted the statutory remedies provided under section 46, 48 and 49 of the Retirement Benefits Act before invoking the jurisdiction of this Court. Consequently, I uphold the Notice of Preliminary Objection dated 6th March 2026 and strike out the Claimant's suit against the 1st, 2nd and 3rd Respondents. Considering the fact that the said Respondents have delayed to pay the Claimant retirement benefits, I will not condemn her to pay them costs. Each party to bear own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 30th DAY OF JULY, 2026.** **ONESMUS MAKAU** **JUDGE** **Appearance:** Chege for Claimant Muango for Njue for 1st , 2nd and 3rd Respondents No appearance for 4th – 6th Respondents