• Judge ruled that the union did not have the authority to institute the proceedings as it didn't seek the opinion of its members or its governing council before filing the case.
• Justice Korir further dismissed the union’s assertion that that its members would suffer prejudice if the orders sought were not granted.
Image: PSCU
The High Court has given the Council of Governors the greenlight to construct the multibillion-shilling Ugatuzi Tower along Chaka Road in Hurlingham, Nairobi.
Justice Weldon Korir dismissed a petition by the Kenya County Government Workers Union and its secretary general Roba Duba that sought to stop the construction of the 50-floor building.
“…. I strike out the petition dated January 19, 2021,” Justice Korir said in a judgment delivered last Friday.
Duba and the union had petitioned the court to stop the board of trustees of the Local Authority Pension Trust and the County Pension Fund from committing any funds to the construction of the proposed building.
The union further sought to prohibit CPF from constructing the G47 Ugatuzi Tower on a prime plot that belongs to the county workers' pension fund.
The proposed building, estimated to be the tallest on the continent, will be built through a partnership between the CoG, the CPF and Laptrust.
It will consolidate all state agencies in the devolution sector under one roof, thereby enhancing efficiency. It will house the Council of Governors' offices, county satellite offices, County Assemblies Forum offices and the Ministry of Devolution and related state agencies.
"It has been our desire to enhance coordination of county governments' activities under one roof," Oparanya had said.
The construction of the building was launched by President Uhuru Kenyatta on December 4 last year.
During the launch, then-CoG chairman Wycliffe Oparanya said Sh132 billion funds for the project would largely be drawn from county budgets over the next three financial years, supplemented by resources from development partners.
Judge Korir ruled that the union did not have express authority from its members to institute the proceedings as it did not seek their opinion or that of its governing council before filing the case.
He further dismissed the union’s assertion that its members would suffer prejudice if the orders sought were not granted.
“In conclusion, it is my finding that the application has failed to pass the test for the issuance of conservatory orders,” he said.
“The petitioners have not demonstrated that they have a prima facie case with a probability of success, that if the orders sought are not granted they will suffer prejudice and that the public interest is in favour of the granting of the orders.”
The petitioners asserted that the decision to develop the G47 Ugatuzi Tower was made without public participation or members’ engagement and the governors and pensions board engaged in a joint venture with the sponsors without their input.
They further complained that the petitioners violated the county workers' right to property under Article 40 of the Constitution by investing for the benefit or in consideration of employers.
But the governors, Laptrust and CRF opposed the application and petition by the KCGW and its secretary general.
They contended that the court had no jurisdiction to entertain the application as the petitioners had not exhausted the alternative special dispute resolution mechanism established under the Retirement Benefits Act.
They also argued that the application was based on the legally untenable premise that pensions scheme funds are public funds, contrary to the provisions of Retirement Benefits (Occupational Retirement Benefits Schemes) Rules.
Justice Korir concurred with their submission.
“I have found that this court does not have the jurisdiction to hear and determine this matter as the petitioners do not appear to have had the requisite authority to file these proceedings, and they have failed to exhaust the appeals mechanism under the RBA Act before approaching this Court,” he said.
Laptrust was established in 2007 as an umbrella retirement benefits scheme for all local authorities.
Its principal objective is to provide pension and other retirement benefits to employees of the sponsors upon their retirement. Laptrust scheme was changed to CPF and took over new members from the county governments.
All pension schemes covering county workers such as Laptfund, Laptrust and CPF have been merged by the County Governments Retirement Scheme Act, 2019.