9th January 2025
We are proud to announce that #ourveryown team of George Oraro, SC (Founding Partner), Noella Lubano (Partner) and Hellen Mwongeli Mutua (Senior Associate), successfully represented The Board of Trustees, Telposta Pension Scheme (“the Scheme”) in Court of Appeal – Civil Appeal No. E767 of 2023 – The Board of Trustees, Telposta Pension Scheme v The Retirement Benefits Appeals Tribunal and Others.
On behalf of the Scheme, our team instituted judicial review proceedings before the High Court seeking to quash the decision of the Retirement Benefits Appeals Tribunal (“the Tribunal”) in a dispute relating to pension dues for over 949 pensioners, which would have resulted in the Scheme having to make payments approximated at KES. 14 Billion to the pensioners, which would have sounded its death knell and resulted in the Scheme’s insolvency (“the Judicial Review Application”).
The High Court (Chigiti, J) had originally dismissed the Judicial Review Application, largely on the basis that the issues raised therein were merit-based, which matters fell beyond the scope of judicial review and therefore not within the jurisdiction of the High Court.
Persuaded by the arguments presented by our team, the Court of Appeal (Musinga P., Gatembu & Mativo, JJA), overturned the decision of the High Court in view of Articles 22 and 47 of the Constitution as well as sections 7 and 11 of the Fair Administrative Action Act, which impute that an element of merit review may be required in judicial review proceedings. In its Judgment, the Court of Appeal found that the High Court had failed to determine issues which had been properly presented before it and erred in holding that it lacked the requisite jurisdiction to conduct a merit review of the dispute.
In the result, the Court of Appeal, set aside the decision of the High Court and remitted the dispute back to the Tribunal for hearing afresh.
With this decision, the Court of Appeal has affirmed the new approach in the present Constitutional dispensation wherein the Courts can no longer ignore merit-based issues in judicial review proceedings. This is in view of Article 47 of the Constitution and the fact that one of the remedies for the alleged violation of the Constitution under Article 23 is an order of judicial review.
To read the full Judgment, click here.
About Oraro & Company Advocates
Oraro & Company Advocates is a full-service market-leading African law firm established in 1977 with a strong focus on dispute resolution and corporate & commercial law. With a dedicated team of partners and associates, the firm has been consistently ranked by leading legal directories such as Chambers Global, IFLR1000 and Legal 500 as a top-tier firm in Kenya.
Oraro & Company Advocates prides itself in its deeply rooted client relationships by providing quality legal services through its partner-led approach, drawing from local knowledge and global perspectives.
The firm is a full Affiliate Member of AB & David Africa, a Pan-African business law network committed to ensuring that businesses and projects succeed in Africa, by helping clients minimize the risks associated with doing business in the continent. This enables the firm to offer cross-jurisdictional legal advice in a seamless manner, while maintaining the highest professional standards.
