https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10130

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA TA NAKURU** **CONSTITUTIONAL PETITION NO. E008 OF 2024** **IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA** **AND** **IN THE MATTER OF ARTICLE S 1,2,3,10, 19,20,21,22,23,27,28, 35, 47 (1), 47 (2),159, 165 (3), (b), OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF RIFHTS TO ACESS INFORMATION** **BETWEEN** **RICHARD SINGA…………………………………...……………. ..PETITIONER** **AND** **AGRICULTURAL FINANCE CORPORATION…………….....RESPONDENT** **RULING** 1. The Petitioner moved this Court vide Petition dated 8th April, 2024, seeking:- 2. ***A declaration that the omission and or refusal by the Respondent to release details of reason for the rejection of the appointment of Petitioner as Trustee of the AFC Pension Scheme is unconstitutional and in violation of Articles 35(1) (a) and (b) and 47 of the Constitution of Kenya.*** 3. ***An Order against the Respondent compelling it to disclose, release and or supply the Petitioner with detailed reasons for the rejection of the appointment of the Petitioner as Trustee of the AFC Pension Scheme.*** 4. ***An order compelling the Respondent to appoint the Petitioner as Trustee of the AFC Pension Scheme*** 5. ***The Petitioner be paid costs of this Petition.*** 6. ***Such other Orders as this Honourable Court shall deem just to grant.*** 7. The grounds are on the face of the Petition supported by the Petitioner’s Affidavit which he swore on 8th April 2024. He stated that he was validly elected during the Annual General Meeting on 9th June 2023 as Trustee of AFC Pension Scheme. However, the Respondent unlawfully and without justification whatsoever has refused, neglected and /or failed appoint him to the post. 8. Further, the Respondent neglected and/or failed to disclose any valid reason for rejection this appointment despite letters sent by the Petitioner’s Advocates seeking such explanation. That instead, the Respondent responded in writing alleging that the Petitioner had not met the threshold set out in the Trust Deed but failed to specify what exactly he was missing thus trampling on the Petitioner at will. 9. Upon being served, the Respondent filed a Preliminary Objection dated 26th August, 2024 seeking dismissal of the Petition on the following grounds: - 10. That this Honourable Court lacks jurisdiction to hear and determine this Petition for this dispute, if at all, falls squarely within the jurisdiction of the Retirement Benefits Authority in accordance with Sections 46 of the Retirement Benefits Act, Cap 197, Laws of Kenya. 11. That this honourable Court lacks jurisdiction to hear and determine the claim for violation of the right to access to information for failure to exhaust internal dispute resolution mechanisms set out under Sections 14 and 21 (1)(f) of the Access to Information Act, No. 31 of 2016. 12. That this honourable court is devoid of original jurisdiction to hear and determine a claim regarding access to information by dint of Section 23 (3) of the Access to Information Act, No. 31 of 2016. 13. That this honourable Court lacks jurisdiction to hear and determine the Claim of violation of the right to fair administrative action for failure to exhaust the internal dispute resolution mechanism set out under Section 6 of the Fair Administrative Action Act. 14. This honourable court does not have jurisdiction to hear the Petition as the same has been instituted in violation of the doctrine of exhaustion of internal and administrative remedies set out in court jurisprudence and express statutory provisions **Petitioner’s submissions** 1. The Petitioner submitted that a pension dispute does not oust the jurisdiction of this Court that **Article 165 (3)** of the **Constitution** donates authority to this Court to determine matters concerning rights or fundamental freedoms within the Bill of rights. 2. The Petitioner relied in the judicial decision of ***Emanuel Titus Manadu & 2 others vs. The Registered Trustees of the Kenya Ports Authority Pension Scheme* [2011] eKLR**, where it is argued that the Court held that the adjudication of pension matters involves disputes that require definitive legal resolution rather than general administrative remedies. 3. The Petitioner also relied on ***Itolondo v Vice Chancellor of Kenyatta University* [2023] KEELRC 882 (KLR)** to submit that the Court therein held that **Section 14** of the **Access to Information Act** is not framed in obligatory terms and that a party can elect to move to the Commission on Administration of Justice. **Respondent’s submissions** 1. The Respondent relied on the Supreme Court’s decision in **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 (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR** to argue that the High Court cannot usurp the jurisdiction of a specialized mechanism provided for by statute and the Constitution 2. The Respondent submits that present Petition as framed, pertains to a dispute arising out of the Respondent’s Pension Scheme. That election of Trustee(s) of a retirement benefit scheme is governed by the individual scheme’s rules any dispute arising out of such elections and/or appointment is within the ambit of **Section 46** of the **Retirement Benefits Act** and ought to be handled, at first instance, by the Chief Executive Officer. 3. The Respondent contends that the Petitioner seems aggrieved by the purported decision of the Respondent in relation to his request for access to information. His avenue of redress ought to have been an application to the Commission, under Section 14 of the Access to Information Act. Reliance was laced on ***Savraj Singh Chana v Diamond Trust Bank (Kenya) Limited & another* [2020] eKLR.** 4. It is argued that the under the doctrine of constitutional avoidance, the Petitioner ought to have invoked other administrative remedies available to him. This Hight Court ought to have been invoked as the remedy of last resort. **Analysis and determination** 1. This Court has considered the Preliminary Objection and the rival submissions. The only issue for determination is whether this Court has jurisdiction over the dispute herein. 2. The starting point is the settled principle that jurisdiction is everything. The Supreme Court of Kenya in **Samuel Kamau Macharia Vs Kenya Commercial Bank Ltd & 2 Others [2012] eKLR** held that a Court’s jurisdiction is derived from the constitution or statute or both. It follows that where jurisdiction is lacking, the Court must down its tools. 3. The Petitioner’s grievance is that, although he was elected as Trustee of the AFC Pension Scheme during the Annual General Meeting held on 9th June 2023, the Respondent has declined to recognize that appointment and has failed to provide reasons for such refusal. The Petition is therefore anchored on alleged violations of the Constitution. 4. The Respondent on the other hand has maintained that this Court should not have been the place of first instance but the Chief Executive Officer of the Retirement Benefits and a review of a decision that denies or restricts access to information, ought to have been before the Commission on Administrative Justice. 5. Section 46(1) of the Retirement Benefits Act provides that:- **“ 46(1) Any member of a scheme who is dissatisfied with a decision by the manager, administration, custodian or trustees 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 provision of the relevant scheme rules of the Act under which the scheme is established”.** 1. **Section 14(1)** of the **Access to Information Act** provides that : ***“Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information.*** 1. ***a decision refusing to grant access to the information applied for;”*** 2. A close reading of these provisions, and applying their wording to the present dispute, reveals that Parliament intended to create specialized mechanisms for resolving disputes arising from pension schemes and for enforcing the right of access to information. 3. The Respondent has relied on ***Mumba & 7 others v Munyao & 148 others* [2019] KESC 83**, where the Supreme Court was confronted with a dispute relating to pension entitlements and benefits payable to members of the Kenya Ports Authority Pension Scheme. The Court held that such disputes fall squarely within the jurisdiction of the Retirement Benefits Authority under **Section 46** of the **Retirement Benefits Act,** and emphasized the doctrine of exhaustion of statutory remedies. 4. Though the Petitioner herein does not seek adjudication of pension benefits or entitlements, the above decision is relevant in that he is aggrieved by the Respondent’s refusal to recognise his election as a Trustee and the Respondent’s refusal to provide reasons for declining to effectuate that appointment. 5. This Court has looked at the letter dated 3rd October 2023 by the Managing Director , George Kubai in response to the Petitioner’s letter dated 19th September 2023. He specifically stated: “ ***We are in receipt of your letter dated 19th September , 2023 whose contents we have noted. We wish to advice that your client’s candidature did not meet the threshold set out in the Rust Deed which id a legal instrument for duly elected trustees.*** ***Kindly be advised that any ill advised suits shall be robustly defended.”*** 1. That is a dispute between the Petitioner and the Respondent and contrary to the argument by the Petitioner, reasons for rejection of his candidature were given but he was dissatisfied. Consequently, his grievance in regard to details should not be before this Court at this instance. 2. The sequence in regard to Respondent’s failure to appoint him should first be as per Section 46 of the Retirement Benefits Act and Sections 14 and 21 (1) (f) of the Access to Information Act, No. 31 of 2016 and not to this Court. Thus, the Petitioner violated the doctrine of exhaustion. 3. In conclusion therefore, this Court issues the following Orders:- 4. **The Preliminary Objection is sustained.** 5. **This Court lacks jurisdiction to handle this Petition.** 6. **The Petition dated 8th April, 2024 is hereby struck out with costs to the Respondent.** **Dated and signed at Nairobi this 7th Day of July, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 8th Day of July 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**