A total of 48 former and current employees of the National Social Security Fund (NSSF) have moved to the Court of Appeal seeking orders to enforce payment of an award of over Sh165 million in salary adjustments.
The claimants are asking the appellate court to compel NSSF to implement the judgement of Lady Justice Monicah Mbaru of August 24, 2020 directing it to pay them their lawful salary increments.
In her judgement, Justice Mbaru of the Labour court ruled that they were entitled to receive a cumulative Sh165, 121,848.29 being salary adjustments as advised by the Price Waterhouse Coopers (PwC) in 2009.
Justice Mbaru said, “The salary disparities arose from the collapse of the staff grading from 14 to 8 grades and the applicable salary.”
The 48 were awarded their lawful dues from May 1, 2014 until payment in full.
Justice Mbaru added that even before the claimants moved to court to seek redress, the Commission of Administration of Justice (CAJ) and an Internal Committee formed by NSSF had made findings that the 48 were entitled to salary adjustments.
“The claimants have proven in their evidence that they are entitled to salary adjustments,” said Justice Mbaru.
The judge directed the pensions authority to implement the decision adding, “court judgements are not mere papers and value should be allocated.”
But NSSF opposed the implementation of the said judgement claiming it will incur losses if it pays the claimants arguing some of the claimants have since retired and recovery of funds from them may be difficult if they lose in the appeal.
NSSF also told Lady Justice Hellen Wasilwa that it has lodged an appeal and if it is determined in its favour then it will have incurred a huge loss if it pays the over sh165m.
In a ruling dated January 19, 2021, Justice Wasilwa stayed implementation of the judgement of Justice Mbaru saying , “the stay is warranted as it will preserve the substratum of the NSSFs appeal.”
Justice Wasilwa stayed the implementation until the appeal is heard and determined.
However the 48 have challenged Justice Wasilwa’s decision saying NSSF is time bad as it failed to challenge Justice Mbaru’s orders of August 24 2020 within the required 60 days from the date of judgement.
The claimants say NSSF has now resulted to delaying tactics not to pay them their legal emoluments.
“The claimants are at the verge of retiring while others have retired and may not enjoy the fruits of the judgement if the appeal is not heard and determined expeditiously,” says Mr Kimweli in his supporting affidavit in the appeal suit.
The claimants are asking the second highest court to set aside the orders of Justice Wasilwa to allow their payments.
They argue that Justice Wasilwa erred in law and fact by entertaining the plea by NSSF when it had disobeyed the order to pay the claimants.
The file has been placed before the president of the court of appeal Justice William Ouko to give directions.