Supreme Court returns NSSF rates case to Court of Appeal

By Kamau Muthoni | Feb 21, 2024

The Supreme Court on Wednesday returned the legal battle between employees and employers to the Court of Appeal.

This is after finding that the lower court erred by finding that the Employment and Labour Relations Court (ELRC) had no powers to hear the case challenging hiking contributions from Sh200 to Sh2,000.

In the meantime, the contribution will continue as the top court did not stop the same.

Chief Justice Martha Koome, her deputy Philomena Mwilu and justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and William Ouko were unanimous that the Court of Appeal erred by finding that Labour Court has no powers to hear constitutional issues.

“We have already held that contrary to the Court of Appeal’s finding, the ELRC had jurisdiction to determine the constitutional validity of the NSSF Act 2013. It is therefore no longer a live issue as to whether this matter should be remitted to the High Court,” ruled the bench headed by Justice Koome.

The bench did not pronounce itself on whether the contested Act is legal or not. They stated that they had only allowed appeal on only a thin line on court powers.

“In the circumstances, this case is to be remitted to the Court of Appeal to determine the substantive merits of the judgment of the ELRC. Due to the nature of the matter, the surrounding public interest and the time taken by the case in the corridors of justice, it is prudent that the matter be heard on a priority basis,” the apex court ruled.

The case was filed by the Kenya Tea Growers Association, Agricultural Employers Association and the County Pensioners Association.

The lobby groups argued that the Court of Appeal was wrong in finding that the Employment and Labour Relations Court (ELRC) had no powers to entertain the case.

The workers' group contended that the Act was unconstitutional and illegal.

The Federation of Kenya Employers (FKE) and the Central Organisation of Trade Unions (Cotu), who were interested parties at the ELRC, took a similar stand as the workers.

At the Court of Appeal, Justices Hannah Okwengu, Mohamed Warsame and John Mativo ruled that the National Social Security Fund (NSSF) Act of 2013, which sought to increase monthly contributions from Sh200 to Sh2,000, was legal and nothing stops the government from implementing it.

The government's plan to implement the NSSF Act 2013 for higher monthly contributions was cut short by Labour court judges Nduma Nderi, Hellen Wasilwa and Monica Mbaru in September last year when they declared the Act illegal and unconstitutional.

The case challenging the law was filed by the Kenya Tea Growers Association and 14 other employer and employee associations.

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