Pensioners ditch courts to save more years

A case in court may take ages to be heard, owing to the number of cases a judge has to handle daily. Photo/File 

By SAM KIPLAGAT

To many retirees seeking to have problems with their retirement packages resolved, filing cases in court against former employers has often proved to be a very time consuming, backbreaking ordeal.

For Ms Consolata Mungai, it has been almost a decade of struggle back and forth between the courts and home, and her fear now is that she might never live to enjoy what she has fought for over the years and what she believes is rightly hers.

After being retrenched from her job almost 10 years ago and being paid her send-off package, she and her colleagues discovered an anomaly in the way their net pension payable was arrived at.

In haste, the retrenchees moved to court and filed a case against their former employer CFC/Stanbic Bank, demanding close to Sh1.1 billion. But since then (2001) the case has been dragging in court.

However, recently, she and a number of pensioners have discovered a quicker way of getting “their rightful package” — the Retirement Benefits Authority (RBA).

Already, several suits filed against a number of companies and banks over pension dues have been withdrawn from the courts and headed to RBA, thanks to its quicker way of disposing matters lodged.

Slashed

Mr Titus Koceyo, a lawyer who represents hundreds of former employees seeking their “slashed” lump sum amounts, said the RBA was far better than engaging with the courts.

To begin with, he says, the biggest advantage RBA has is the removal of technicalities on the way. He says that after filing a case in court, there are several hurdles to be overcome including technicalities.

A case, he adds, can be knocked out on a simple technicality prolonging it, but RBA has no such legal hurdles.

Mr Koceyo says courts unintentionally delay matters. Owing to the number of cases a judge handles in a day, for one to be heard to conclusion, it might take ages he says.

The lawyer explains that after filing a case in court, a complainant has to wait for 15 days for the response from the former employer.

When the former employer appears in court, he is given another 15 days to respond and another 15 days before the case is set down for hearing.

Mr Stephen Mallowa, RBA’s board secretary concurs, saying that RBA endeavours to conclude a case in 30 days, once a complaint has been lodged. At most, a case is solved within 90 days, he says.

“Our process is faster because we have the expertise and mechanism to deal with the complaints. We can also investigate and come up with fair decisions,” he adds.

Mr Mallowa says most cases lodged are straight-forward complaints that are handled immediately.

In some instances, he says, a pensioner does not need a lawyer. “You only come to our offices and fill a form explaining to us what happened.”

After lodging the complaint an investigation is launched and if genuine, the employer is asked to respond. Mr Koceyo adds that RBA has specialised people to deal with such issues unlike the courts where a judge will rely on actuaries.

The lawyer also said that unlike the courts, RBA has control over trustees and actuarial firms. “They licence them and once called, the employer will be ready to furnish them with anything required,” he says.

Tedious process

After a judgment has been issued in court, enforcing it might be difficult, says Mr Koceyo. “It is another tedious process to execute the award but RBA solves it faster.”

Another advantage RBA has over courts is what Mr Koceyo terms as spreading the risk. The lawyer says that after filing a case in the High Court, one can appeal only once, at the Appellate Court.

However, at RBA the case is handled by the chief executive officer and if unsatisfied, there is the RBA tribunal. If a party is further unsatisfied with the tribunal’s decision, there is reprieve in the High Court and also the final appeal at the Court of Appeal.

Hundreds of former employees, especially from banks, moved to court following massive retrenchment in the 1990s.

While citing wrongful calculation of net pension payable upon retirement, the retirees wanted their former employers forced to calculate their pension in accordance with the Trust Deed and Rules of the fund.

Some also complained after their employers converted their scheme from defined benefits to a contributory scheme.

In some of the cases lodged in court, the retirees accused the banks of calculating their benefits without full disclosure of material facts and fraudulent misinterpretation of facts.

Other than CFC/Stanbic, other banks sued are Barclays Bank, KCB, National Bank of Kenya and Standard Chartered.

The flurry of lawsuits has been informed by the awareness campaign by the RBA.

“We have been sensitising the public over their rights,” says Mr Mallowa. The authority, he says, has been informing Kenyans about retirement to ensure they do not suffer in their sunset years.

He says RBA has solved many cases, although complaints keep rising. Some have been dismissed for lack of merit, he says.