High Court ends Telkom retirees' 12-year wait for the Sh14b award

Judge said the trustees’ case was an appeal disguised as an application to review the retirement tribunal’s hearing process. [iStockphoto]

Thank God, it is finally done.

These were the words expressing relief written by Telkom pensioners on the Teams platform after Justice John Chigiti dismissed the case filed by the Teleposta Pension Scheme Trustees against the Sh13.9 billion award by Retirement Benefits Appeals Tribunal (RBA).

Justice Chigiti’s verdict was short and sweet to the attendees, some who did not understand what he meant by dismissing the case.

The judge said the trustees’ case was an appeal disguised as an application to review the retirement tribunal’s hearing process.

“This court is in full agreement with the second interested party that the grounds raised in this judicial review application are grounds which can only be raised on appeal as they touch on the merits of the case,” he noted.

“As such, the instant application is an appeal disguised as a judicial review application; and is thus incompetent, fatally defective, frivolous, vexatious, lacks merit, an abuse of the court’s time, and ought to be dismissed. The application dated April 11, 2017, lacks merit and the same is hereby dismissed with costs,” said Justice Chigiti.

Immediately after the judge was done, one Kipng’eno asked, “Imeisha?” (is it done?”). Another one replied with a text, thank God! After a few seconds, another text propped up, “It is finally done.”

The hearty conversation that followed a pin-drop silence session painted a picture of retirees who were on the edge, whom the court gave a lifeline they much needed.

It has been 12 years of waiting, with at least Sh13.9 billion at stake. Telkom pensioners are a dejected lot.

George Karang’alla, one of the pensioners told The Standard that the majority of those who were in the group have since died while others have lived with depression.

Some joined the pension scheme as early as 1965. Each sunset marks yet another day that elderly men and women have to go without their hard-earned retirement benefits.

After contributing to the country for years, retirement ought to be an easygoing time to play with grandchildren and enjoy a pension as one waits for the sunset days.

However, for Telkom’s 948 pensioners, retirement was a nerve-racking period clouded with uncertainty about whether they would ever get the investments they made during their heydays.

Some have died, and those lucky to be still alive are living on the edge.

An actuarial report submitted before the Retirement Benefits Tribunal and the court indicated that Telkom’s retirement scheme owed retirees Sh7.2 billion as of February 13, 2017.

The amount shot to Sh11.51 billion by June 30, 2020. By October 3, 2022, the liability had grown to almost double the initial debt to Sh13.9 billion.

Some of the persons who were affected left in 2007. For example, R.C Biegon had Sh318,597 locked in by the time she was exiting Telkom on January 30, 2007.

Another pensioner, D.M. Ontweka had Sh480,659 while GW Mbuthia had Sh185,685. Others are RC Koskei (Sh489,223), Hannah Maina (Sh907,734), Samuel Mwangi (Sh392,749), and Asha Khalif (Sh676,738).

Tenth judge 

Justice Chigiti was the tenth judge to hear the case. The battle was before Labour Court, went to the Court of Appeal before it was returned to the High Court. It had to be heard afresh after the one who handled the matter was transferred just as he was about to write a judgment.

In his judgment, Chigiti observed that the trustees had failed to prove that the tribunal’s decision-making process was flawed.

He was of the view that his court is not glued to the merits of the claim. “Applicant has not proven that the tribunal’s decision was materially influenced by an error of law. The applicant has failed to prove that it is entitled to an order of Certiorari to remove into this honourable court and quash the judgment and orders of the Retirement Benefits Appeals Tribunal,” said Justice Chigiti.

Telkom pensioners had sued the RBA, Teleposta Pension Scheme, and Teleposta Provident Fund at the Retirement Benefits Tribunal. The group led by Boniface Mariga lamented that RBA Teleposta Pension Scheme (TPS) miscalculated and underpaid their benefits upon retirement.

All worked under the now-defunct Kenya Posts and Telecommunication Corporation. Their lawyer Titus Koceyo urged the tribunal to force TPS trustees to pay his clients interest that had accrued over time.

The tribunal led by Kakai Cheloti concurred with the pensioners and ordered that the scheme should pay interest until the amount owed is cleared. This was on February 13, 2017.

Following the orders, the trustees moved to the High Court and obtained temporary orders, suspending the orders of the tribunal. Justice Roselyn Aburili issued the orders on March 29, 2017.

The case moved from the High Court to the Employment and Labour Relations Court, and the Court of Appeal and back to the High Court.

Justice Aburili and Justice Anthony Ndung’u have handled the case, and Justice Chigiti in the High Court.

Justice Pauline Nyamweya (now a Court of Appeal judge) had initially ordered that the Labour Court should hear the matter. Aggrieved, the trustees appealed in 2019, seeking to suspend the transfer orders.

They faulted Justice Nyamweya, arguing that the Labour Court does not have powers to hear the case.

Court of Appeal judges Martha Koome (current Chief Justice), Hannah Okwengu, and Sankale ole Kantai suspended the hearing on June 9, 2021. This in effect stalled the case.

A second Bench comprising Daniel Musinga, Wanjiru Karanja, and Agnes Murgor finalised the appeal by finding that the Labour Court had no powers to hear a dispute relating to trustees of a pension scheme and pensioners.

They returned the dispute to the High Court on October 27, 2021, this time before Justice Ndung’u.

The trustees claimed that 348 former employees were added to the matter while the case involved 600. They argued that the tribunal had no powers to add new claimants.

At the same time, they argued that an actuarial report that had been submitted before the tribunal had not been produced before the RBA. This, according to them, was unfair as it amounted to new evidence that raised new issues.

“In admitting new evidence, and allowing the appellants (pensioners) to raise new points that would have the effect of changing their entire case. The tribunal erred as it was effectively re-trying the matter afresh, arrogating itself the jurisdiction of the authority.”

The tribunal and the Attorney General opposed the case. The tribunal argued that actuarial reports submitted before it was unanimous and the only issue was whether the pensioners ought to have accessed their pension at the age of 50 years or 55 years.

On the issue of new entrants, the tribunal and the AG argued that trustees had no reason to complain as all of them belonged to the same scheme and had a similar claim.

They urged the court to dismiss the claim as it ought to have been filed before the Civil Division of the High Court instead of the Judicial Review.

According to the AG and the tribunal, the case was being prosecuted through a back door.

“If the applicant was unhappy with the decision rendered by the first respondent on February 13, 2013, the best approach was to appeal the ruling before the High Court Civil Division and not file an application for Judicial Review seeking to overturn the decision of the first respondent,” they argued.

They added that the tribunal had correctly tabulated how much the pension scheme owed them. According to their lawyer, it was unfair for retirees to be denied their dues owing to liquidity issues.

“The pension benefits are one of the social protections accorded to the older members of the society by Articles 43 and 57 of the Constitution and it will be unfair, unjust, and unlawful to deny the retirees their accrued pension benefits as a result of the trustees own convenience as propagated by their own actually,” he argued.