COFEK sues NSSF over enhanced contributions, seeks return to Sh200 deductions

Court gavel. [Courtesy]

A lobby has moved to the High Court seeking to halt the enforcement of enhanced NSSF contribution rates, arguing that the Fund’s directive is unconstitutional, unlawful and defies a Court of Appeal ruling and has plunged millions of workers and employers into uncertainty.

The Consumers Federation of Kenya (COFEK), which has sued NSSF and the government, maintains that employers should revert to the previous NSSF regime, which provided for a flat monthly contribution of Sh200, pending the hearing of the appeal.

In a constitutional petition filed before the Constitutional and Human Rights Division of the High Court, COFEK wants the court to quash NSSF's public notice issued on June 5, 2026, titled "Clarification on the Status of NSSF Contributions" and bar the Fund from enforcing the directive to revert.

The consumer lobby has sued the NSSF Board of Trustees, the Cabinet Secretary for Labour and Social Protection and the Attorney General.

The Federation of Kenya Employers (FKE) and the Central Organisation of Trade Unions (COTU-K), which have since been seen to support NSSF's illegal directive, have been listed as interested parties.

COFEK argues that the impugned notice was issued shortly after the Court of Appeal declined to grant NSSF conservatory orders that would have suspended a previous Labour Court judgment declaring the NSSF Act, 2013, unconstitutional.

According to court documents, COFEK contends that despite the appellate court's decision, NSSF proceeded to advise employers and employees to continue remitting contributions under the enhanced contribution framework established by the NSSF Act, 2013.

"In the said notice, the National Social Security Fund advised employers and employees to continue complying with and remitting contributions under the enhanced contribution framework established under the National Social Security Fund Act, 2013," states the petition.

The organisation argues that the move has generated uncertainty among millions of employers, workers and payroll administrators across the country.

"The cumulative effect of the aforesaid notices and advisories has been to generate widespread public debate, uncertainty and confusion concerning the legal obligations presently applicable under the National Social Security Fund framework," COFEK states in its petition.

COFEK further argues that NSSF contributions constitute mandatory statutory deductions affecting millions of Kenyan workers every month and that public authorities have a constitutional obligation to provide clear and legally sound information.

In the petition, the consumer lobby claims that grave constitutional questions arise where a public body unsuccessfully seeks relief through court proceedings and later issues administrative directives capable of achieving the same practical effect.

"The Petitioner contends that grave constitutional questions arise where a public body, having unsuccessfully sought relief through judicial proceedings, subsequently issues administrative notices, directives or advisories capable of procuring or achieving the same practical effect through administrative action substantially," the court papers state.

COFEK alleges that the NSSF notice violates Articles 10, 35, 46, 47, 159 and 232 of the Constitution relating to the rule of law, access to information, consumer protection, fair administrative action and accountability in public service.

The organisation maintains that contributors to the Fund are consumers of statutory social security services and are entitled to accurate information concerning deductions made from their wages.

It argues that the disputed notice continues to influence payroll administration and statutory remittances across the country despite the legal controversy surrounding the implementation of the NSSF Act, 2013.

Among the orders sought, COFEK wants the court to declare that the NSSF notice violates constitutional provisions, quash the directive through an order of certiorari and prohibit the respondents from implementing or enforcing it.

The lobby group is also seeking conservatory orders restraining NSSF from imposing penalties, sanctions, surcharges or other enforcement measures against employers and contributors pending the hearing and determination of the case.

In its application, COFEK warns that unless the court intervenes urgently, employers and employees will continue acting on the contested notice, exposing millions of Kenyans to uncertainty and potential financial liability.

"Unless this Honourable Court intervenes urgently and grants appropriate conservatory relief, employers and employees shall continue to act upon the impugned notice, thereby exposing millions of Kenyans to continuing prejudice, uncertainty and potential financial liability," the application states.

The petition, which has been filed under a certificate of urgency, is expected to be placed before a High Court judge for directions.