The Supreme Court has declined a request by the Standard Chartered Bank and its Pension Fund to stop enforcement of a tribunal's ruling that ordered a Sh7 billion payout to 629 former employees, clearing one of the legal obstacles that had blocked the pensioners from receiving their dues.
However, the pensioners will wait longer before receiving their benefits because two months ago, the High Court in Nairobi halted the payment of the money and costs after they initiated a fresh legal challenge, which is scheduled for mention next week.
A five-judge bench of the apex court led by Deputy Chief Justice Philomena Mwilu on Friday dismissed the bank's application for a stay of execution, citing the lack of jurisdiction to grant such a request.
The court added that the petition for appeal did not concern the interpretation of the Constitution.
"The mere allegation of constitutional violations cannot bring the appeal within the ambit of this court's jurisdiction under Article 163(4)(a). On the basis of the foregoing, it is clear to us that this court lacks jurisdiction to hear and determine the intended appeal and the application for stay attendant thereto," said the judges.
The bench comprising Ms Mwilu and Justices Ibrahim Mohamed, Smokin Wanjala, Njoki Ndung'u, and Isaac Lenaola considered the pensioners' argument that public interest leaned towards avoiding any further delay so as to hasten the release of the pension funds to them.
The bank, alongside its trustees for the Pension Fund and Staff Benefits Scheme, wanted the apex court to suspend enforcement of the judgment and decree by the Retirement Benefits Appeal Tribunal delivered in favour of the former employees, some of whom retired in the 1990s.
They moved to the Supreme Court after the Court of Appeal dismissed their appeal in March this year, upholding a 2023 decision of the High Court to back the tribunal's ruling dated April 28, 2022, on the payout.
They wanted the stay order to remain in force pending the hearing and determination of the petition amid fear of potential loss, arguing that they were at risk of being exposed to irreversible fiscal liability.
While asking for the orders, it was argued that the petitioners were not aware of any assets owned by the said pensioners, which could be attached to recover the sums in dispute if the appeal was successful.
However, the Supreme Court upheld a preliminary objection raised by the pensioners seeking to strike out the appeal because the decision of the Court of Appeal did not involve the interpretation or application of the Constitution.
The judges considered the pensioners' emphatic claim that to grant the application for stay would greatly prejudice the retirees or families of their departed colleagues, who have been waiting for the conclusion of the protracted litigation.
"More so, because a good number of the third respondents have died during the pendency of the dispute, missing out on the opportunity to enjoy the fruits of their investment. It is against the public interest to continue the delay in the release of pension payments. The delay amounts to denial of the pensioners' constitutional rights to life, health, and social protection, especially because a majority of the pensioners are elderly and ailing," they argued.
They also urged that the Retirement Benefits Act does not provide an appellate process against decisions of the appeals tribunal.
Despite securing victory at the top court, the pensioners will have to wait longer before receiving their benefits since, in June this year, High Court judge Bahati Mwamuye issued a conservatory order barring execution of the tribunal's ruling.
The bank and its Pension Fund argue that the tribunal's decision was made contrary to Section 49 of the Retirement Benefits Act, which requires production of evidence by affidavit and interrogatories.
The pending dispute at the High Court is scheduled for mention on September 9, 2025, before Justice Mwamuye.
