UNIVERSITY OF NAIROBI

SCHOOL OF LAW
GPR 437: PENSIONS LAW
February 2023
COURSE OUTLINE

INSTRUCTORS: L. OBURA ALOO: aloo.obura@uonbi.ac.ke ,

BOSIRE NYAMORI: bosire.nyamori@uonbi.ac.ke
______________________________________________________________________________

A. PRELIMINARY

Course Objectives
To introduce students to the legal and policy frameworks governing the techniques of
management and administration of pension schemes in Kenya

Expected Learning Outcomes

At the end of the course, the students will be able to:
1. Discuss the philosophical underpinnings of pension schemes and other retirement benefits
of employees.
2. Trace the historical development of pension schemes in Kenya.
3. Explain the rights and responsibilities of both employers and the State with respect to the
administration of pension schemes.
4. Describe the different types of pension schemes.
5. Explain and evaluate the different pension scheme administration strategies.
6. Analyze pension scheme investments.
7. Assess the effectiveness of pension law in Kenya and its compliance with global best
practice and analyze the contemporary issues on pension schemes.

Teaching Methodology
The course will be conducted by way of lectures; seminars discussions (on the times and days of
the week as are shown in the relevant timetable); individual student and group presentation; and
problem-based learning. Students are expected to prepare sufficiently in advance to participate in
the tutorials and seminars discussions. Where alternative mode of fulfilling some of the
requirements of the course becomes necessary, the students would be notified appropriately.

Students will be directed to course materials and will be expected to have read the materials
before the class. Materials to be read will include books available in the University library and
internet resources. It is expected that the students will be able to demonstrate an ability to
collaborate and conduct research in the commercial legal environment. The students should gain
confidence to apply legal knowledge to emerging situations.

Instructional Materials / Equipment

Textbooks, cases and material on various topics of the course units, articles, overhead projector,
video and DVD player, white board and flip charts.

Pensions Law Course Outline February 2023- L. Obura Aloo & Bosire Nyamori 1
Method of Evaluation
Continuous Assessment Test 30%
Final Examinations 70%
Total 100%

References
Core Reading Materials:
1. Sinéad Agnew, Paul S Davies and Charles Mitchell (eds) Pensions: Pensions: Law, Policy
and Practice (Great Britain: Hart Publishing, 2020)
2. S. Hardy, & W. Derbyshire, Pensions and Employment Law: Issues at the Interface. Sweet
& Maxwell (2008).
3. P. Wiedenbeck, ERISA: Principles of Employee Benefit Law. Oxford University Press
(2010)
4. P. Thornton, & D. Fleming, Good Governance for Pension Schemes. Cambridge
University Press (2011)
5. Pensions Law & Practice with Precedents Sweet & Maxwell (2012)
6. Tolley’s Pensions Law Loose-leaf Service Butterworth’s (1999)
7. Occupational Pensions Butterworth’s (1987)

Government Documents
1. David Nyakundi Bonyi, Revised National Retirement Policy, June 2022
2. Ministry of Gender, Children and Social Development, Kenya National Social Protection
Policy, June 2011
3. Sessional Paper No 10 of 1965 on African Socialism and Its Application to Planning in
Kenya.
4. Kenya National Social Protection Policy June 2011

Recommended Reference Materials:

1. R.W. Johnson, C.E. Uccello, & J.H. Goldwyn, ‘Who Foregoes Survivor Protection in
Employer – Sponsored Annuities.’ (2005) Gerontologist 45:26-35
2. M. Naczyk, ‘Agents or Privatization? Business groups and the Rise of Pension Funds in
Continental Europe.’ Socio economic Review (2012)
3. J. Clifford, ‘Investment – Can Private Trustees learn anything from Pension Scheme
Trustees.’ Trusts & Trustees (2009) 15: 611-618
4. H. Joshi, & H. Davies, ‘Pensions, Divorce & Wives, Double Burden.’ International
Journal of Law, Policy & Family (1992) 6:289-320
5. R. Nobles, ‘Enforcing Employee’s Pension rights – The Court’s hostility to the Pensions
Ombudsman.’ Industrial Law Review (2000) 29:243-259

Laws

The Constitution 2010

 The Constitution of Kenya, articles 43, Article 21 Fourth Schedule

Statutes
 Pensions Act (Cap. 189)

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  Pensions (Increase) Act (Cap. 190)
 Retirement Benefits Act (No. 3 of 1997)
 National Social Security Fund Act (No. 45 of 2013)
 National Health Insurance Fund Act (No. 9 of 1998)
 Provident Fund Act (Cap. 191)
 Public Service Superannuation Scheme Act (No. 8 of 2012)
 Parliamentary Pensions Act (Cap. 196)
 Presidential Retirement Benefits Act (No. 11 of 2003)
 Retirement Benefits (Deputy President and Designated State Officers) Act (No. 8 of
2015);
 Asian Officers’ Family Pensions Act (Cap. 194)
 Asian Widows’ and Orphans’ Pensions Act (Cap. 193)

Subsidiary Legislation
 Retirement Benefits (Individual Retirement Benefits Schemes) Regulations 2000
 Retirement Benefits (Occupational Retirement Benefits Schemes) Regulations 2000
 Retirement Benefits (Minimum Funding Level and Winding up of Schemes) Regulations
2000
 Retirement Benefits (Forms and Fees) Regulations 2000
 Retirement Benefits (Managers and Custodians) Regulations 2000
 Retirement Benefits (Mortgage Loans) Regulations 2009
 Retirement Benefits (Administrators) Regulations 2007
 Retirement Benefits (Umbrella Retirement Benefits Schemes) Regulations 2017
 The Income Tax (Retirement Benefit) Rules 1994
 Income Tax (National Social Security Fund) (Exemption) Rules 2002
 Provident Fund Regulations
 The Retirement Benefits (Post-Retirement Medical Funds) Guidelines 2018
 The Retirement Benefits (Good Governance Practices) Guidelines 2018

Guidelines
 Practices notes and guidelines issued by the Retirement Benefits Authority
 Treasury Circular 18 of 2010 (for all public service retirement benefit schemes)

Useful websites
https://www.rba.go.ke/
https://www.treasury.go.ke/public-service-superannuation-scheme/

Course Content:
Foundations and philosophical underpinnings of pensions law, historical evolution of pensions
law, scope of pensions, purpose of pension schemes, types of pension schemes – contributory,
non – contributory, insured, non – insured, final salary and money purchase schemes, social
security pensions, state pension schemes - pension scheme administration strategies, role and
responsibilities of trustees, pension scheme benefits, pensions investments, regulatory
supervision of pension schemes, retirement benefits, the future of pensions law in Kenya as a
result of emerging global trends.

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The following table provides details of the topics covered within each of the topics in in the
Course:

Module Module Overview

Introduction - Employee benefits-medical, insurance, etc.
- Retirement benefits as part of “employee benefits”
- Kenya pension system- the three pillars
- Historical and international background to retirement schemes
- Foundations and philosophical underpinnings of pensions

Readings
 David Nyakundi Bonyi, Revised National Retirement Policy, June
2022
 Ministry of Gender, Children and Social Development, Kenya
National Social Protection Policy, June 2011
 Ronald H Rosenberg, Cutting Pension Rights for Public Workers
in the United States: Don’t Look to the Courts for Help in Sinéad
Agnew, Paul S Davies and Charles Mitchell (eds) Pensions:
Pensions: Law, Policy and Practice (Great Britain: Hart Publishing,
2020), 348-368
Retirement - Overview of law governing retirement schemes
benefits - Retirement benefits authority
legislation and - Concept of regulation
Regulations - RBA as a regulator and rationale for regulating retirement schemes.

Readings
 RBA

The retirement - Formation of retirement schemes

scheme entity/ - Introduction to trusts and trust law
Occupational - Selection and appointment of trustees
Retirement - Advantages and disadvantages of trusts
Benefits
Arrangements Readings
 Sec 24(1)(b) and 26(6)-establishment as irrevocable trust
 The Trustees (Perpetual Succession) Act (Cap 164)
 John H. Langbein, The Secret Life of the Trust: The Trust as an
Instrument of Commerce, Yale Law Journal, 1997
Trustees - Trustee duties and responsibilities under the RBA Act and other laws

Readings
 RBA
 Phillip H. Petit, Equity and the Law of Trusts (Oxford: Oxford
University Press, 2012), 396-413
 Albert Chaurembo Mumba & 7 others (sued on their own behalf

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 and on behalf of predecessors and or successors in title in their
capacities as the Registered Trustees of Kenya Ports Authority
Pensions Scheme) v Maurice Munyao & 148 others (suing on their
own behalf and on behalf of the Plaintiffs and other
Members/Beneficiaries of the Kenya Ports Authority Pensions
Scheme) [2019] eKLR
Trustees - Duty of trustee to take reasonable care to ensure that the management
of the scheme is carried out in the best interests of the members and
sponsors of the scheme

Readings
 Sec 40(b), RBA
 Cowan v Scargill (1984) [1985] Ch 270
 Re Merchant Navy Ratings Pension Fund; Merchant Navy Ratings
Pension Trustees Ltd v Stena Line Ltd [2015] EWHC 448 (Ch),
[2015] PLR 239
 David Polard, The Short-form ‘Best Interests Duty’ – Mad, Bad
and Dangerous to Know: Part 1 – Background, Cowan v Scargill
and MNRPF, https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3297009
Regulation and - Interpretation of Pension Trusts
supervision of
schemes readings
 David Pollard, Interpretation of Pension Trusts: Applying General
Rules in , in Sinéad Agnew, Paul S Davies and Charles Mitchell
(eds) Pensions: Law, Policy and Practice (Great Britain: Hart
Publishing, 2020), 69-127
 Re Courage Group’s Pension Schemes (1987) 1WLR 498
 LRT versus Hatt (1993) PLR 227
 National Grid versus Laws (1997) PLR 157
 Lloyds Bank Pensions Trust Corporation versus Lloyds Bank
(1996) PLR 263
 Davis versus Richards & Wallington (1990) 1 WLR 1511

Exercise of - Pensions plans and public law

Scheme Powers
readings
 Philip Sales, Public Law Perspectives on the IBM Case, in Sinéad
Agnew, Paul S Davies and Charles Mitchell (eds) Pensions: Law,
Policy and Practice (Great Britain: Hart Publishing, 2020), 246-
259
 Alan Bogg And Mark Freedland, Pensions Law, IBM v Dalgleish
and the Public/Private Divide, in Sinéad Agnew, Paul S Davies and
Charles Mitchell (eds) Pensions: Law, Policy and Practice (Great
Britain: Hart Publishing, 2020), 260-287
 Association of Retirement Benefits Schemes v Attorney General &

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 3 others [2017] eKLR
 Association of Retirement Benefits Schemes v Attorney General &
3 others, Civil Appeal No. 283 of 2017

Schemes wind-up - wind-up of pensions plans

Dispute - Disputes resolution
resolution
Emerging issues - Reforms
Conclusion Conclusion and revision

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