Supreme Court returns NSSF rates petition to Court of Appeal for fresh hearing

NSSF Building Nairobi

Workers erecting a sign at NSSF's Social Security House offices in Nairobi.  The Supreme Court has returned a petition challenging the NSSF Act 2013 to the Court of Appeal.

Photo credit: File | Nation Media Group

The Supreme Court has returned a petition challenging the National Social Security Fund (NSSF) Act 2013, which raised contributions to the fund, to the Court of Appeal for a fresh hearing.

A full bench of the apex court, presided over by Chief Justice Martha Koome, remitted the case to the Court of Appeal for hearing, saying the judges who determined the matter failed to address all the issues raised in the matter.

The Supreme Court noted that the effect of the decision, which went to the merits of the application to the exclusion of the grounds challenging the validity of the NSSF Act 2013, left other factual and constitutional questions of live controversy that are yet to be determined through the requisite appellate process.

 “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,” said the judges adding that due to the nature of the matter, the surrounding public interest and the time taken by the case in the corridors of justice, it should be heard on a priority basis.

Several organisations including Kenya Tea Growers Association, Agricultural Employers Association, and Federation of Kenya Employers had challenged the Act arguing that they were not consulted or the Bill was not subjected to public debate as required.

The organisations also argued that the compulsory registration of employees under the Fund, unlike the repealed Act, which exempted their members from registration.

The Attorney General and CS Labour defended the Act stating that the enactment process involved full public participation and sensitisation.

The CS also said Section 21 gives employees the right to opt out of Tier II to join private pension schemes and Section 27 provides that interest charged on members’ late payments is credited to members’ accounts.

Further, it was urged, that the NSSF Act, Chapter 258, was repealed by the coming into force of the NSSF Act 2013, and therefore stay of operation of the new Act would mean that there would be no law regulating the Fund.

In a Judgment delivered on February 3, last year, the Court of Appeal allowed the appeal by the government and set aside orders granted by the Employment and Labour Relations Court saying the labour court lacked jurisdiction to determine the matter.

The Supreme Court said once the Court of Appeal determined that a trial court has acted without jurisdiction in determining a matter, it cannot assume original jurisdiction over the same.

“Having so found, the Appellate Court has to remit the case to the court that is clothed with jurisdiction to dispose of the same without going into the merits of the dispute, for doing so may prejudice the fair determination of the case by the court with jurisdiction,” Justices Koome, Deputy CJ Philomena Mwilu, Mohammed Ibrahim, Njoki Ndung’u, Isaac Lenaola and William Ouko said.