[2000] KEHC 109 (KLR)
The court held that the applicant was entitled to bring the application by way of notice of motion for orders of mandamus to compel payment of retirement benefits. The statutory framework provides for calculation and payment of such benefits, and if the employer fails to pay, mandamus is the appropriate remedy. The...
Source-derived case information.
- Citation
- [2000] KEHC 109 (KLR)
- Parties
- Applicant: Rebecca Wangari Kuria; Respondent: The City Council of Nairobi; Respondent: Superannuation Fund (Managing Trustee)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 1615 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the applicant
- Judges
- JL Osiemo
- Legal Topics
- Retirement Benefits, Mandamus Applications, Preliminary Objection, Procedure for Terminal Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rebecca Wangari Kuria
Applicant
The City Council of Nairobi
Respondent
Superannuation Fund (Managing Trustee)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an application for mandamus lies against the respondents for payment of retirement benefits.
- 2 Whether the applicant ought to have proceeded by way of plaint instead of notice of motion.
- 3 Whether the preliminary objection raised by the respondents is valid.
Ratio Decidendi
The court held that the applicant was entitled to bring the application by way of notice of motion for orders of mandamus to compel payment of retirement benefits. The statutory framework provides for calculation and payment of such benefits, and if the employer fails to pay, mandamus is the appropriate remedy. The preliminary objection raised by the respondents, arguing that the application was defective and should have been brought by plaint, was without merit. The court found that the applicant had followed the correct procedure and dismissed the preliminary objection with costs to the applicant.
Court Disposition
preliminary objection dismissed with costs to the applicant
Orders
- The preliminary objection is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA T NAIROBI
MISC. APPLICATION NO.1615 OF 1999
REBECCA WANGARI KURIA ……………………….… APPLICANT
VERSUS
THE CITY COUNCIL OF NAIROBI & ANOTHER ……………………………………….… RESPONDENTS
R U L I N G
The applicant was employed by the first Respondent and was a contributor to the second Respondent a Superannuation Fund. She has since retired from the first Respondent’s employment. She has not been paid her retirement benefits.
She filed this application for orders of mandamus directed to the Town Clerk of Nairobi City Council, and the Managing Trustee of the Superannuation Fund, the first and second Respondents respectively to pay her, terminal benefits.
This application was by way of notice of motion. When the matter came up for hearing, counsel for the Respondents raised a preliminary objection on the ground that no application by way of mandamus lies against the Respondent and that the application is incurably defective, counsel for the Respondents further submitted that the orders sought can only issue against the Government and that the applicant ought to have come to court by way of plaint.
Counsel for the Applicant opposes the preliminary objection and submits that the application is properly before that retirement benefits are calculated in accordance to Statutory Provisions and the Respondents had even worked it out and prepared a cheque for Shs.188,567. 85/=which had become stale before it was released to the applicant.
With due respect to counsel for the Respondents I don’t agree with his contention that applicant should have come to this court by way of a plaint.
Retirement benefits are calculated as provided for in the statute and paid out to the retiree, and if payment is delayed the retiree can only come to court by way of notice of motion for orders of mandamus directed to the employer to pay the retiree, pension and terminal benefits.
For the above reasons this preliminary objection is dismissed with costs to the applicant.
Order accordingly.
Dated and delivered at Nairobi this 23rd day of September, 2000
J.L.A. OSIEMO
JUDGE