Pain of retirees' 12-year wait as case on Sh13b benefits flip-flops

Twelve years of waiting and with more than Sh13 billion at stake, Telkom pensioners are a dejected lot.

Each sunset marks yet another day that elderly men and woman have to go without their hard-earned retirement benefits.

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

Their case is a classic example of the saying justice delayed is justice denied.

The case file now lies before a fourth judge, and has to be heard afresh after the one who handled the matter was transferred just as he was about to write a judgment.

The 948 pensioners had sued the Retirement Benefits Authority (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 agreed 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.

Justice Aburili and Justice Anthony Ndung'u have handled the case, and it is currently before Justice John Chigiti.

It is a case that has moved from the High Court to the Employment and Labour Relations Court, and the Court of Appeal and back to 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 lodged an appeal 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 has 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 an 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.

The pensioners also urged the court to dismiss the case. They argued that, as at February 13, 2017, their pension dues stood at Sh7.2 million. By June 30, 2020, the court heard, the amount had skyrocketed to Sh 11.5 billion.

The amount stood at Sh 13.9 billion by October 3, last year.

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 is 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.

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