[2017] KEHC 928 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 505 OF 2017

IN THE MATTER OF AN APPLICATION BY THE APPLICANTS FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF MANDAMUS

AND

IN THE MATTER OF ARTICLES 43(1) E AND 47 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE FAIR ADMINISTRATION ACT

AND

IN THE MATTER OF THE RETIREMENT BENEFITS ACT, CAP 197 LAWS OF KENYA

BETWEEN

REPUBLIC.............................................................................APPLICANT

VERSUS

RETIREMENT BENEFITS AUTHORITY...........................RESPONDENT

AND

ABRAHAM MACKIE MUTISYA KILONZO

ALICE WAKIURU MAU

ANGELO MUNENE WACHIURU

ANNE NYAMBURA MACHARIA

ANN WANGARI THIONGO

ANNE WANGUI MATU

ANTHONY A.J.M. NJAU

CATHERINE WANJUGU NJOGU

DAVID K. KAMAU ASHFORD

DIANAH WAMVUA GONAH

HANNAH N. WAMBUI

GABRIAL L. WANGU MUNGAHU

ISHMAIL NYAMBU MWANDAWIRO

JAMES CHEGE THIONGO

JANE WAIRIMU NGANGA

JOHN MUTISYA MUINDE

JOSEPH KAKOLE

JOSEPH KAMAU GICHUKI

JOYCE KIUNGA ISALA

LOISE MUTHONI GIKONYO

MARY WATARE KIUMI

MERCY NJOKI KINYUA

MILDERED KAREN SANDE

NAHASHON WAWERU KAMAU

OMWENGA EUNICE MORAA NYARIBU

PAUL N. KITEMA

PETER M. MWANGI

PETER NGANGA KARIUKI

PHILIP P. NJAGI

RACHAEL NYAMBURA GICHIA

ROSE OCHINGWA

RUTH WATHARA NJATHIKA

SAMUEL MUNYAU NZIOKA

STELLA JANET NZISA KITALE

TERESIA WANGUI KANILI

VERONICA WANJIKU KINGORI

VINCENT KIBIO WAKABA

ZIPORA JALEGA MUSALIA

CELESTINE ROBERT SUTI

JOHN NGARI THIONGO

All suing as members of the

HOUSING FINANCE COMPANY OF KENYA

PENSION SCHEME………………………………..EXPARTE APPLICANTS

RULING

1. This ruling determines the chamber summons dated 16th August 2017 filed by the various exparte applicants members of the Housing Finance Company of Kenya Pension Scheme seeking leave of court to institute Judicial Review proceedings seeking for mandamus to compel the respondent to determine the applicant’s complaint filed on 15th April 2014 in accordance with the Retirement Benefits Act; and a preliminary objection dated 27th October 2017 filed by the Respondent which seeks to have the chamber summons for leave dismissed on the grounds that the proceedings offend the mandatory provisions of the law; That the Judicial Review proceedings are filed in contravention with (sic) the doctrine of subjudice as the subject matter is pending before the Retirement Benefits Tribunal; consequently , that this court lacks jurisdiction to entertain the proceedings as currently framed.

2. The exparte applicants, are former employees of Housing Finance Company of Kenya where they worked before retiring and are therefore members of Housing Finance Company of Kenya Pension Scheme, whereas the respondent Retirement Benefit Authority is a statutory body established under Section 3 of the Retirement Benefits Act, Cap 197 Laws of Kenya and mandated to regulate and supervise Retirement Benefit Schemes.

3. The exparte applicant’s application is predicated on the grounds on the face of the chamber summons and in the statutory statement and verifying affidavit sworn jointly by Abraham Mackie and Mutisya Kilonzo on 16th August, 2016.

4. According to the exparte applicants’ depositions, they were dissatisfied with their pension benefits as computed by their employer and so they lodged a complaint with the respondent Authority on 15th April 2014 in accordance with Section 46 of the Retirement Benefits Act but that todate, over three years from the date of filing of the complaint, and despite numerous reminders, the respondent has declined to act on the complaint without any justifiable cause or reason, despite making representations to the public that such complains would be determined between 1-6 months. From date of filing.

5. The applicants therefore complain that due to the delay aforementioned, the applicants filed a complaint before the Retirement Benefits Tribunal Appeal No. 3 of 2016 which appeal is yet to be determined because the respondent has not determined the complaint filed on 15th April, 2014. That although the appeal was meant to compel the respondent to determine the applicant’s complaint, it is unfortunate that the tribunal is yet to be constituted.

6. It is claimed that the respondent’s actions violate the applicant’s constitutional right to Fair Administrative Action and the provisions of Sections 5 and 6 of the Fair Administrative Action Act.

7. Further, it is alleged that the actions of the respondent have been made irrationally, in bad faith, procedurally unfair and disproportionate to any interest sought to be protected. It is further claimed that the undue delay is in gross violation of the applicant’s right under Article 159(2) (b) of the Constitution which commands that justice shall not be delayed.

8. The exparte applicants aver that the respondent has also failed to give reasons for the undue delay in determining the complaint which delay offends the Fair Administrative Action Act and Article 47(1) and (2) of the Constitution.

9. In addition, it is alleged that the inaction on the part of the respondent disentitles the applicants of their socio-economic rights guaranteed under Section 43(1) (e) of the Constitution.

10. In the view of the applicants, they are elderly people and their rights to personal development and to live in dignity as espoused in Article 57 of the Constitution is being curtailed and that the respondent has abused its powers hence this court should intervene.

11. The parties’ advocates agreed and filed written submissions which they adopted as canvassing both the application and the preliminary objection. I will therefore first consider the preliminary objection as submitted in line with the established practice.

12. According to the respondent in the submissions dated 7th November 2017 and filed by Simba and Simba advocates, this application is subjudice the appeal No. 3 pending before the Retirement Benefits Appeals Tribunal in filed 2016. It was submitted in contention that Section 6 of the Civil Procedure Act prohibits this court from hearing and determining a dispute which is directly and substantially in issue in a previously instituted suit or proceeding between the same parties, under the same title where such court has jurisdiction in Kenya to grant the relief claimed.

13. It was conceded that the tribunal is currently not constituted. However, the respondent contends that the terms of the members of the tribunal ended in February 2017 but that it was duly constituted as at 2016 when the appeal was filed yet the applicants took no steps to prosecute their appeal.

14. Further, that the applicants should have sued the Cabinet Secretary in charge of Finance who is mandated by Section 47(2) of the Retirement Benefits Act to appoint members of the Retirement Benefits Appeals Tribunal so that the pending appeal can be heard and determined.

15. On jurisdiction the case of Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (K) Ltd [1989] KLR 1 was relied on.

16. On the threshold for preliminary objection, the case of Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd [1969] EA 606was relied on.

17. On the threshold and yardstick for grant of leave to apply in ju8dicial review proceedings, it was submitted, relying on Republic vs County Council of Kwale & Another exparte Kondo & 57 Others HCC Miscellaneous Application No. 384/1996 and Polycarp Wathuta Kanyugo & 2 Others vs The County Government of Kirinyaga[2014] e KLR that leave to commence Judicial Review proceedings is not granted as a matter of course or as s a mere formality, and that albeit at the leave stage the applicant is not expected to go into the depth of the intended application for Judicial Review, the applicant must nonetheless satisfy the court that they have a prima facie arguable case which merits further investigations by the court.

18. It was further submitted that Section 46 of the Retirement Benefits Act does not aid the applicants and that Section 48 of the Act makes it clear that any person aggrieved by the decision of the authority or the Chief Executive Officer may Appeal to the Tribunal within 30 days of the receipt of the decision hence this court cannot take up jurisdiction of the Tribunal even if it was to find that the doctrine of subjudice is inapplicable in the circumstances of this case.

19. The exparte applicants’ submissions in support of leave and in opposition to the preliminary objection was filed on 1st November 2017, dated 31stOctober 2017 reiterating the grounds and depositions outlined in the statutory statement and verifying affidavit and maintaining that the appeal before the tribunal was to compel the respondent to determine the applicant’s complaint but unfortunately the tribunal is yet to be constituted which then causes delay, which delay in effect violates the applicant’s rights under the Constitution to fair administrate action; to expeditions disposal of their complaint as espoused in Article 159 of the Constitution; to social and economic empowerment under Article 43; and to pursue their personal development and to live in dignity and respect as stipulated in Article 57 of the Constitution.

20. On the purpose for leave to apply, reference was made to the cases of Matiba vs Attorney General HCC Miscellaneous 790/1990; Republic v Land Disputes Tribunal Court Central Division & Another Exparte Nzioka[2006] IEA 321, among other similar authorities where the court held that leave is supposed to exclude frivolous and vexatious application or applications which prima facie appear to be abuse of the process of the court or those applications which are statute barred.

21. It was submitted that the order of mandamus would lie because Section 46 of the Retirement Benefit Act mandates the respondent to supervise Retirement Benefit Schemes but that it has deliberately delayed to determine the complaint filed by the applicants since 2014 which action offends the respondent’s mandate to the public.

22. The applicants adopted the definition of Mandamus as espoused in Kadir Salat Gedi vs Principal Registrar of Person & another [2014] e KLR that mandamus requires performance of a particular thing which appertains to the tribunal’s office and is in the nature of a public duty.

23. On the preliminary objection, it was submitted that there is no legal basis for the preliminary objection, as the preliminary objection does not specify the mandatory provisions of the law that these proceedings allegedly offend.

24. The applicant’s counsel denied that this application offends the doctrine of subjudice as alleged and maintained that this court has jurisdiction to hear and determine the application which purely touches on the decision making process of the respondent that is evidently flawed and ought to be corrected.

25. It was submitted that the application does not touch on the merits of the case before the tribunal. Reliance was placed on Municipal Council of Mombasa Petition No. 185/2001 CA on the scope of Judicial Review being concerned with the decision making process not the merits of the decision itself.

26. On the Subjudice Rule, it was contended by the exparte applicants that this matter does not fall in the subjudice rule since only this court can grant mandamus hence, the matters are not substantially or directly argued in the Appeal pending before the tribunal.

27. It was therefore submitted that the preliminary objection is misadvised since this court has jurisdiction to hear and determine the matter and grant the prayers sought in the Judicial Review Application. This court was urged to dismiss the Preliminary Objection with costs and grant the leave sought.

DETERMINATION

28. I have considered the application for leave, the preliminary objection by the respondent and submissions filed by both parties’ advocates in the matter coupled with the cited case law, statute law and constitutional provisions.

29. The issues that flow for determination are:

1) Whether this court has jurisdiction to hear and determine the application by the exparte applicants and if so;

2) Whether the application for leave is merited.

3) What orders should this court make?

4) Who should bear the costs of the application?

30. On whether this court has jurisdiction to hear and determine this application, the respondent filed a preliminary objection contending that this matter was subjudice the pending appeal before the tribunal where the applicants seek to have the respondent compelled by the tribunal to hear and determine the complaint which has been pending before the respondent since 2014 without any action.

31. The respondent contends that in any case, Section 48 of the Retirement Benefits Act provides for an appeal to lie to the Tribunal where a person is aggrieved with the decision of the respondent hence this court has no power to intervene before the tribunal hears the appeal otherwise it will be usurping powers of the tribunal.

32. In addition, it was contended that in any event, the tribunal is not constituted hence the applicant should have sought to compel the Minister for Finance to constitute the tribunal to hear and determine the appeal as filed, not for this court to compel the respondent to hear and determine a matter which is also pending before the tribunal for adjudication.

33. The applicants, however, maintained that this court has jurisdiction to hear and determine the application because the tribunal has no jurisdiction to grant orders of mandamus and that the matters herein are not subjudice the pending issues before the tribunal.

34. Section 47 of the Retirement Benefits Act Cap 197 Laws of Kenya Established on Appeals Tribunal for purposes of hearing appeals under the Act. The tribunal consists of a chairman and four other members who are appointed by the Minister and shall hold office for three years. The Chairman must be an advocate of the High Court of Kenya of not less than seven years standing. Under Section 48 of the Act,

“(1) Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of the 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 confined upon the Authority by the Act, either party my appeal to the Tribunal in such manner as may be prescribed.

35. Powers of the Tribunal are as stipulated in Section 49 of the Act and are powers of the subordinate court of the first class to summon witnesses, take evidence on oath or affirmation and to call for production of books and other documents.

36. The Act also establishes the Retirement Benefits Authority at Section 3 with the object and function of regulating and supervising the establishment and management of retirement benefit schemes; protecting interests of members and sponsors of retirement benefits schemes; promote the development of the retirement benefit sector; advise the Minister on the National Policy to be followed with regard to retirement benefits schemes and to implement policies relating thereto; and to perform such other functions as are conferred on it by the Act or by any other written law.

37. From the above provisions of the Act, it is clear that any person aggrieved by the decision of the Authority may appeal to the Tribunal established under the Act.

38. The applicants concede that after lodging a complaint with the Authority, it took long for the Authority to decide on the complaint hence the applicants filed an appeal to the Tribunal seeking to compel the Authority to hear and determine the dispute expeditiously. This was in 2016.

39. However, it is disclosed by the respondent that the Tribunal’s members’ terms ended in February this year 2017 and that there is no reason why the applicant did not push for the hearing and determination of the appeal. The respondent further contends that in any case, the applicant has sued a wrong party as they should seek to sue the Minister for Finance to constitute the Tribunal which is currently not constituted.

40. What is being complained of here is failure by the Authority to hear and determine the complaint. There is no decision made by the Authority and communicated to the applicant, which is capable of being adjudicated upon by the Tribunal whether constituted or not. The complaint here is failure or omission by the Authority to take action which failure allegedly affects legal and constitutional rights and interests of the applicants.

41. Section 2 of the Fair Administrative Action Act No. 4 of 2015 defines Administrative Action to include:

1. The powers, functions and duties exercised by authorities or quasi- judicial tribunals; or

2. Any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates”

“Decision’ under the Act is defined to mean any administrative or quasi judicial decision made, proposed to be made, or required to be made, as the case may be.‘Failure’ in relation to taking a decision includes a refusal to take the decision. And “tribunal”means a tribunal established under any written law.

42. The Act applies to all state and non state agencies including any person exercising administrative authority; performing a judicial or quasi-judicial function under the Constitution or any written law or whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.

43. Section 4 of the Fair Administrative Action Act provides that every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

44. From the above substantive provisions of the law implementing Article 47 of the Constitution, it is clear that an administrative action includes an omission or failure to take action.

45. The applicants claim that despite filing a complaint in 2014 before the respondent Authority, no action has been taken and no reasons have been given for such failure to deliberate on the complaint and give a verdict.

46. In my humble view, this is one of those cases which the tribunal has jurisdiction to hear and determine by dint of Article 50(1) of the Constitution as read with Article 159(2) (b) of the Constitution, as the Authority is alleged to have failed to hear and determine the complaint lodged by the applicants.

47. The failure by the Authority to hear and determine the complaint filed before it can be addressed by the Tribunal, once constituted. It is the primary duty of the Cabinet Secretary responsible for matters relating to labour to appoint members of the Retirement Benefits Tribunal to hear and determine the complaint lodged before it. If the Cabinet Secretary has not reconstituted the tribunal after the term for the members expired, the applicant could have enjoined the Cabinet Secretary to these proceedings seeking orders of mandamus to compel him/her to constitute the tribunal to enable the expeditious hearing and determination of the appeal lodged by the exparte applicant.

48. The provision of Section 48 of the Retirement Benefits Act are clear that any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of the Act or any regulation made there under may appeal to the tribunal within 30 days of the receipt of the decision; and 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.

49. The powers of the Appeals Tribunal are stipulated in Section 49 of the Act and they include 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; where the tribunal considers it desirable for the purposes 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 a full and timely reply to the interrogatories within the time specified by the tribunal; award costs among other powers.

50. Article 50(1) of the Constitution is clear that every person has the right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or, if appropriate, another independent or impartial tribunal or body.

51. In addition, Article 159(2) (c) of the Constitution stipulates that in exercising judicial authority, the courts and tribunals shall be guided by the following principles:

a)…..

b)…….

c)Alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms shall be promoted, subject to Clause 3.

52. It is now settled law and judicial pronouncements that where the Constitution or any law provides a procedure for settlement of disputes, that procedure shall be followed before resort to the High Court or to any other procedure provided by law. That is the effect of the above cited provisions of Articles 50(1) and 159 2 (c) of the Constitution.

53. In Samson Chembe Vuko vs Nelson Kilumo & 2 Others [ 2016] eKLR the Court of Appeal citing several other past decisions with approval among others: Speaker of the National Assembly vs Karume [2008] 1 KLR 425where the same Court of Appeal held, inter alia:

“…..where there is a clear procedure for the redress of any particular grievances prescribed by the constitution or the Act of Parliament, that procedure should be strictly followed….”

54. InMutanga Tea & Coffee Company Ltd vs Shikata Ltd & Another [2015] e KLRthe Court of Appeal reiterated what was stated in the Njenga Karume vs The Speaker of the National Assemblysupra and stated, inter alia, while also citing Kones vs Republic & Another exparte Kimani Wanyoike & 4 Others[2008] e KLR (ER) 296:

“It is readily apparent that in those cases the court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanisms is prescribed by the constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.

The basis of that view is that Article 159(2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article 159 2 (c) is not a closed catalogue.

To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms.

Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost-effective manner.

….we are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellant the right to access the High Court by way of an appeal, which mechanisms he had refused to invoke. To hold d otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2) (c) and the very raison d’être of the mechanisms provided under the two acts….”

55. What the above decisions espouse is that parties ought not to invoke the jurisdiction of the High Court in Judicial Review matters where there is an alternative dispute resolution mechanisms established by the Constitution or an Act of Parliament on the right to administrative action as stipulated in Article 47 of the Constitution and implemented by the Fair Administrative Action Act No. 4 of 2015.

56. Section 9 of the Fair Administrative Action Act stipulates as follows:

9(2) the High Court or a subordinate court under Subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

(3) The High Court or a subordinate court shall, if it is not satisfied that the remedies referred to in Subsection (2) have been exhausted, direct that the applicant shall first exhaust such remedy before instituting proceedings under Subsection (1) ;Notwithstanding Subsection (3) of the High Court or a subordinate court may, in exceptional circumstances and on an application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice”

57. From the above provisions of the law, it is clear that where there is an alternative procedure or remedy established by law for resolution of a dispute, one will not be allowed to invoke Judicial Review jurisdiction of this court except in exceptional circumstances and on application for exemptionfrom resorting to the alternative procedure or remedy for redress.

58. The onus is on the applicant on an application for such exemption to satisfy the court that he/she ought to be exempted from resorting to such other alternative remedies for redress. The court would not and has no powers to act suo moto.

59. Even before the enactment of Section 9 of the Fair Administrative Action Act, 2015, in 2011 the Court held in Republic vs National Environment Management Authority[2011] e KLR that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for Judicial Review would be granted and that it is upon the applicant to demonstrate what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute.

60. Similar pronouncements were made in Revital Health Care[EPZ] Ltd & Another vs Ministry of Health & 5 Others [2015] e KLR citing Damin Delfonte vs the Attorney General of Trinidad & Tobago CA 84 of 2004; Pasmore vs Oswald Twistle Urban District Council [1988] AC 887where, in the latter case the court held that where an obligation is created by statute and a specific remedy is given by that statute, the person seeking the remedy is deprived of any other means of enforcement.

61. Majanja J added his voice to the debate on alternative procedure in dispute resolution in Dickson Mukwelukeine Attorney General & 4 Others Nairobi HC Petition No. 390/2012when he observed that alternative dispute resolution processes are complementary to the judicial process and by virtue of Article 159(2) (c ) of the Constitution of Kenya, 2010, the court is obligated to promote these modes of ADR and that it is not inconsistent with Articles 22 and 23 of the Constitution to insist that statutory processes be followed particularly where such processes are for the specific purpose of realizing, promoting and protecting certain rights. Accordingly, the court is entitled to either stay the proceedings until such a time as the alternative remedy has been pursued or bring an end to the proceedings before the court and leave the parties to pursue the alternative remedy.

62. See also Safmarine Container N.V. of Antwerp vs Kenya Ports Authority; Narok County Council vs Transmara County Council & Another CA No. 25 of 2000.

63. In the instant case, it is not in dispute that there is a pending appeal filed by the applicant before the Retirement Benefits Appeals Tribunal established under Section 47 of the Retirement Benefits Act, and as stipulated under Part V1 of the Act on Appeals.

64. The appeal was filed pursuant to Section 48 of the Act seeking to resolve a dispute between the applicant and the Authority over the hearing and determination of the complaint lodged by the exparte applicant.

65. The applicants claim that the Appeals Tribunal’s members’ term expired and that it has not been reconstituted that is why the applicants came before this court. However, the statutory power to constitute the Appeals Tribunal lies with the Cabinet Secretary responsible for matters relating to Labour. There is no application before this court seeking for mandamus to compel the relevant Cabinet Secretary to constitute the tribunal. The power is a statutory duty vested in the Cabinet Secretary under Section 47 of the Act.

66. Furthermore, it is not disputed that the Appeal Tribunal’s members terms ended when the appeal was pending before the Tribunal and which appeal was lodged before expiry of the terms of the Tribunal members.

67. In addition, the applicant has not invoked the court’s discretion conferred by Section 9 and the Fair Administrative Action Act, 2015 to seek by way of an application, for exemption of exhaustion of the alternative remedies or internal mechanisms available under the section 48 of the Retirement Benefits Act.

68. It therefore follows that this matter is not subjudice the appeal pending the Appeals Tribunal but is prematurely brought before court and the court has power under Section 9(2) and (3) of the Fair Administrative Action to either reject the application seeking leave to institute Judicial Review proceedings or to stay these proceedings and direct the applicant to first exhaust such remedy available under the Retirement Benefit Act before instituting proceedings for Judicial Review.

69. In my humble view, however, even if this court was to stay these proceedings and direct that the appeal pending before the Appeals Tribunal be heard and determined first, it would only be creating a backlog of cases since the applicant has by passed many other steps including that of seeking to compel the Cabinet Secretary to constitute the Tribunal. Further, the applicant waited for too long before coming to court to seek a remedy. In as much as the remedy of mandamus is not time bound, there is no reason why the applicant did not seek to have its complaint and appeal heard before expiry of the term of the Tribunal members expired this year, almost one year after filing the appeal.

70. Judicial Review remedies are discretionary in nature. They are not granted as a matter of course and the court can decline to grant them or decline leave to institute proceedings where there is inordinate delay like in the instant case.

71. For all the above reasons, I find and hold that the applicants’ application dated 16th August 2017 seeking leave to apply for Judicial Review orders of mandamus to compel the respondent to determine the applicants’ complaint filed on 15th April 2014 in accordance with the Retirement Benefits Act is not merited.

72. Accordingly, I find and hold that the preliminary objection dated 27th October 2017 is merited. The same is hereby allowed and upheld. The exparte applicants’ application afore stated is therefore hereby dismissed with an order that each party shall bear their own costs of the application for leave and the preliminary objection raised.

Dated, signed and delivered in open Court at Nairobi this 7th day of December 2017.

R.E. ABURILI

JUDGE

In the Presence of:

Miss Matasi for the Respondent

N/A for Applicant [Mr Danson Mbote a clerical staff from Mr Koceyo’s Office present says Mr Koceyo Advocate is in Malindi Court]

Court Assistant: George