REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

(Coram:Koome; CJ & P, Mwilu; DCJ & V-P, Ibrahim, Wanjala, Njoki, Lenaola &
Ouko, SCJJ)

PETITION NO. E004 OF 2023 AS CONSOLIDATED WITH PETITION NO.

E002 OF 2023

—BETWEEN—

KENYA TEA GROWERS ASSOCIATION….............................. 1ST APPELLANT

AGRICULTURAL EMPLOYERS ASSOCIATION…………….…..2ND APPELLANT
COUNTY PENSIONERS ASSOCIATION………………………..…..3RD APPELLANT

—AND—

THE NATIONAL SOCIAL SECURITY

FUND BOARD OF TRUSTEES...…………....………………..….…1ST RESPONDENT
THE CABINET SECRETARY FOR LABOUR
SOCIAL AND SECURITY SERVICES………….………….….…..2ND RESPONDENT
THE RETIREMENT BENEFITS AUTHORITY………………….3RD RESPONDENT
THE COMPETITION AUTHORITY…………………….………….4TH RESPONDENT
THE HON. ATTORNEY GENERAL…………………...…………..5TH RESPONDENT
KENYA COUNTY GOVERNMENT
WORKERS UNION…………………………………………….……….6TH RESPONDENT
KENYA UNION OF ENTERTAINMENT
AND MUSIC INDUSTRY EMPLOYEES………………..…….…..7TH RESPONDENT

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 1 of 49
KENYA BUILDING CONSTRUCTION
TIMBER, FURNITURE AND ALLIED
TRADERS EMPLOYEES UNION………….…………..……………8TH RESPONDENT
UNION OF NATIONAL RESEARCH INSTITUTES
STAFF OF KENYA (UNRISK)…………………………..……….…..9TH RESPONDENT
KENYA GLASS WORKERS UNION.……..………..…….………10TH RESPONDENT
NKAURAKI EDWIN LESIDAI & 89 OTHERS…….…………..11TH RESPONDENT
CENTRAL ORGANIZATION OF
TRADE UNIONS (COTU)………………………………....…………12TH RESPONDENT
FEDERATION OF KENYA EMPLOYERS (FKE)……..……...13TH RESPONDENT
KENYA QUARRY AND MINE
WORKERS UNION…………………..……………….………...…….14TH RESPONDENT

(Being an Appeal from the Judgment of the Court of Appeal at Nairobi

(Okwengu, Warsame & Mativo, JJ.A.) delivered in Civil Appeal No. E656
of 2022 on 3rd February 2023)

Representation
Mr. Geoffrey Orao Obura……………………………………..…..for the 1st and 2nd appellants
(Obura Mbeche & Company Advocates)

Dr. Muthomi Thiankolu……………………………………..………………. for the 3rd appellant

(Muthomi & Karanja Advocates)

Mr. Fred Ngatia SC……………………………………………………………for the 1st respondent

(Ngatia & Associates Advocates)

Mr. Oscar Eredi and Ms. Scholastica Mbilo……..…for the 2nd, 4th and 5th respondents
(State Counsel Office of the Attorney General)

Mr. Charles Agwara and Mr Kimathi……………………..…………. for the 3rd Respondent

(Prof. Albert Mumma & Company Advocates)

Ms. Tamari Katana…………………………………………….……………for the 6th Respondent

(Kithi & Company Advocates)

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 2 of 49
 JUDGMENT OF THE COURT

A. INTRODUCTION

[1] Two petitions were filed before the Court, namely, Petition No. E002 of 2023
dated 16th February 2023 and filed on 17th February 2023; and Petition No. E004
of 2023 dated 24th February 2023 and filed on 28th February 2023. By a Consent
Order of this Court issued on 31st March 2023, Petition No. E002 of 2023 was
consolidated with Petition No. E004 of 2023 for determination. It was further
agreed that Petition No. E004 of 2023 be the lead file.

[2] The consolidated appeal is against the Judgment of the Court of Appeal at
Nairobi in Civil Appeal No. 656 of 2022 (Okwengu, Warsame & Mativo, JJ. A)
which overturned the Judgment of the Employment and Labour Relations Court
(the ELRC) (Nduma, Wasilwa, and Mbaru, JJ.). Petition No. E004 of 2023 is
filed pursuant to inter alia Article 163(4) (a) of the Constitution and Rules 38 and
39 of the Supreme Court Rules, 2020 while Petition No. E002 of 2023 is filed
pursuant to Rule 39 of the Supreme Court Rules, 2020.

B. BACKGROUND

[3] This litigation arises from the enactment of the National Social Security Fund
Act, 2013 (hereinafter the NSSF Act, 2013) which was assented to by the President
on 24th December 2013 and came into operation on 10th January 2014. The
enactment of the Act triggered the institution of five constitutional petitions before
the Constitutional and Human Rights Division of the High Court at Nairobi, and
in various stations of the ELRC. The Petitions, all of which challenged the
constitutionality of the NSSF Act, 2013 included:

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 3 of 49
 a) High Court (Nairobi) Constitutional Petition No. 249 of 2014:
Kenya County Government Workers Union v. The National
Social Security Fund Board of Trustees & 3 Others;
b) High Court (Nairobi) Constitutional Petition No. 270 of 2014:
Kenya Tea Growers Association & Agricultural Employers’
Association v. The Attorney General & The National
Security Fund Board of Trustees;

c) Industrial Court (Nakuru) Petition No. 9 of 2014: Nkauraki Edwin

Lesidai & 89 Others v. the Attorney General & 3 Others;

d) Employment and Labour Relations Court (Nairobi) Petition No. 34

of 2014: Kenya Quarry and Mine Workers Union & 4 Others
v. the Attorney General & Others; and

e) Industrial Court (Nakuru) Petition No. 11 of 2014: Kenya

Plantation and Agricultural Workers Union v. Board of
Trustees, National Social Security Fund & Another.

(i) At the Employment and Labour Relations Court

[4] Upon reviewing the pleadings before her, in High Court (Nairobi)
Constitutional Petition No. 249 of 2014; and High Court (Nairobi) Constitutional
Petition No. 270 of 2014, Mumbi Ngugi, J. (as she then was) of the
Constitutional and Human Rights Division of the High Court, transferred the
petitions to the ELRC on 16th June 2014, stating that the matter pertains to issues
related to social security and employment and properly falls within the jurisdiction
of the ELRC. Before the trial court, the 1st and 2nd appellants sought the following
Orders:

a) A declaration that Sections 18, 19, 20, 21, 22, 29 and 71 of the NSSF Act,
2013 are inconsistent with Articles 24, 26, 28, 27, 36, 41 and 43 of the

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 Constitution by obliging employers to register employees with
alternative pension and social security schemes with the NSSF Board
of Trustees, or pension and social security schemes operated by them;

b) A declaration that Sections 18, 19, 20, 21, 22, 29 and 71 of the NSSF Act,
2013 are unconstitutional by discriminatorily targeting only employers
and employees in the registration, membership and making of
contributions to the 1st respondent, and not the entire Kenyan
population as required of a scheme intending to offer universal social
security under Article 43 of the Constitution;

c) A declaration that Sections 18, 19, 20, 21, 22, 29 and 71 of the NSSF Act,
2013 are unjustifiable in a free, modern, open, transparent and
democratic society by giving the Cabinet Secretary for Labour, Social
and Security Services (CS Labour) wide discretionary powers in the
management of the NSSF Board of Trustees (NSSF Board); and in the
manner of dealing with the petitioners’ members contributions and
accrued benefits in total disregard of the statutory regulatory role of
the Retirement Benefits Authority (RBA);

d) A declaration that Sections 18, 19, 20, 21, 22, 29 and 71 of the NSSF Act,
2013 are unconstitutional in compulsorily appropriating the
petitioners’ members’ private property in violation of their rights under
Articles 40(2) and 41(2) of the Constitution;

e) A declaration that Sections 47 and 68 of the NSSF Act, 2013 are

oppressive, irrational and unreasonable by giving regulatory powers
to the NSSF Board instead of the RBA which is the independent sector
regulator;

f) An order directing the RBA to subject the NSSF Board to all prudential
regulatory requirements set out in the Retirement Benefits Act, 1997;

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 g) An order directing the Competition Authority to review and advise the
Government and all key stakeholders on the compatibility of the NSSF
Act, 2013 with the country’s competition policy as read with the
principles under Article 10(1)(c) of the Constitution;

h) An order precluding the NSSF Board and the CS Labour from applying
the NSSF Act, 2013 to the petitioners’ members or any other employees
with adequate alternative pension or social security schemes;

i) A declaration against the NSSF Board and the CS Labour, that the
deduction of 6% from the earnings of employees, requiring the
employers’ corresponding contribution of 6% of the employees’
pensionable earnings, and remitting the same to the NSSF Board in
terms of the NSSF Act, 2013 is void and unconstitutional;

j) A declaration that the NSSF Act, 2013 is null and void ab initio as its
passage into law violated Articles 110 and 205 of the Constitution;

k) In the alternative, determination of the constitutional validity of the

following sections of the NSSF Act, 2013: 13; 17(6)(b); 18(4); 19(2); 10
and the third schedule; 20; 21; 27; 35(4); 37(1); 18(2), 72 and the second
schedule; and 49(2).

[5] At the ELRC, parties dispensed with the hearing of interlocutory applications
by consent in favour of determination of the substantive petitions. Shortly after,
Nderi Nduma, J. declined a request to certify the petitions as raising substantial
questions of law requiring empanelment of a bench of an uneven number of
Judges for their disposal under Article 165(4) of the Constitution. Consequently,
he directed that the matter be heard by a single Judge.

[6] Notwithstanding the consent and the court’s denial of certification, the 1st and
2nd appellants filed an application dated 23rd June 2014, seeking certification
under Article 165(4) of the Constitution and a conservatory order staying operation

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of the NSSF Act, 2013. The application was partly heard when parties recorded a
consent on 5th August, 2014, consolidating Nakuru Petition Nos. 49 and 50 of 2014
with Nairobi Petition Nos. 35, 34 and 38 of 2014; certifying the matter as raising
substantial questions of law under Article 165(4) of the Constitution and directing
that the file be forwarded to the Chief Justice to empanel a bench of an uneven
number of Judges; and that the matter be mentioned before the bench for
directions.

[7] Instead of constituting a bench as requested, the former Chief Justice; Hon.
Justice (Dr.) Willy Mutunga directed that the issue of jurisdiction be argued before
the Principal Judge of the ELRC. In his view, it could be argued that the
Constitutional and Human Rights Division of the High Court had the requisite
jurisdiction to determine the matter or that the Chief Justice was required to
constitute a hybrid bench of three from the ELRC and the High Court. Pursuant to
these directions, Nderi Nduma, J. heard the parties and in a Ruling dated 27th
February 2015, held that: the issues in the consolidated petition raised substantial
issues of law of a “mixed grill” concerning the interpretation of the Constitution;
legality of a substantial portion of the NSSF Act, 2013; and the legality of a fund
premised on both an employer and employee relationship and on self-employment
in terms of contributions to, and benefits from the Fund. Accordingly, he
concluded that both the High Court and ELRC had jurisdiction to determine issues
raised in the consolidated petition and requested the Hon. Chief Justice to consider
empanelling a bench of an uneven number of Judges, being not less than three
from the High Court and ELRC but sitting as the ELRC to determine the
consolidated petition.

[8] Notably, the directions and Nderi Nduma, J.’s Ruling were informed by the
practice established by the former Chief Justice; Hon. Justice (Dr.) Willy
Mutunga, who had declared through a Gazette Notice that he could empanel a
bench constituting Judges from both the special jurisdiction courts and the High
Court to determine criminal appeals. This practice was later extended to civil and

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 7 of 49
constitutional cases. Subsequently, on 2nd March 2015, the Chief Justice
empanelled a mixed bench with two Judges from the ELRC and one from the High
Court to hear the case. However, after a few sessions, the Court of Appeal delivered
its Judgment in Karisa Chengo & 2 Others v. Republic; Malindi Criminal
Appeal No. 44, 45 and 76 of 2014; [2015] eKLR declaring empanelment of a mixed
bench of Judges from the High Court and courts of equal status unconstitutional.
In light of the foregoing, the Chief Justice constituted a bench of three Judges from
the ELRC comprised of Nderi Nduma, Wasilwa and Mbaru, JJ. to determine the
consolidated petition.

[9] In their petition, the 1st and 2nd appellants urged that pursuant to statutory and
subsidiary legislation, policy documents, employment contracts and collective
bargaining agreements (CBAs) in place, their members had long standing adequate
pension and social security schemes with their employers such as public and
private gratuity, provident funds and pension schemes which were more
advantageous than that proposed by the NSSF Act, 2013. They were apprehensive
that the proposed pension scheme would overburden them due to their various
financial commitments and that they would lose the contributions already made to
their subscribed pension schemes.

[10] The 1st and 2nd appellants further argued that they were not consulted, the
NSSF Act 2013, was not subjected to public debate and the Kenya Revenue
Authority had been nominated to collect its contributions, which move they
deemed irregular. They also took issue with: the compulsory registration of
employees under the Fund, unlike the National Social Security Fund Act Chapter
258 (repealed) (the repealed NSSF Act) which exempted their members from
registration; unconstitutionality of compulsory registration and contribution by
employees since the Fund does not qualify as a retirement benefit body; the
requirement for their members to register with the Fund as a prerequisite for
accessing public services; compulsion to join parallel and duplicate schemes which
would double administrative costs potentially leading to massive job cuts across

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 8 of 49
the country to the detriment of employees; failure to involve the Senate in the
enactment of the NSSF Act 2013, under Articles 110 to 113 of the Constitution, yet
all County Governments were obliged to make payment to the Fund without
corresponding budgetary allocation; giving of regulatory powers to the NSSF
Board instead of the RBA; enhancing social security benefits of employed persons
only and therefore discriminating against the unemployed, the old and their
dependants; and setting of the Board’s remuneration by the CS Labour which
ought to be determined by the Salaries and Remuneration Commission (SRC).

[11] In the course of the proceedings, the 3rd appellant was joined to the
consolidated petition as an interested party on behalf of its members of over 6000
retirees who were contributors to the Local Authorities Pensions Trust (Laptrust).
Having been so joined, the 3rd appellant argued that the NSSF Act 2013, was
inconsistent with the right to social security for reasons that: it would deny
Laptrust and other defined benefits pension schemes the cash flow necessary to
finance actuarial deficits and make pension payments to retirees; jeopardize the
livelihoods of the County Pensioners Association’s members and their dependants,
and grant the NSSF Board a monopoly in the provision of pension and social
security services to the detriment of other providers in the industry.

[12] The respondents opposed the consolidated petition. Through the Attorney
General, the NSSF Board denied the contention that the NSSF Act 2013, compelled
employees to contribute 6% of their salaries, urging that contribution rates are
capped at Kshs. 6000 for the lower earnings limit and Kshs. 18,000 for the upper
earnings limit. Additionally, they urged that the National Assembly was alive to
these deductions when it unanimously passed the Act. It was further contended
that the Competition Act, 2010 does not apply to the NSSF because the Fund does
not engage in any trade. On its part, the RBA asserted that contrary to allegations
of inadequate public participation, it effectively participated in the formulation of
the NSSF Act 2013. However, it advised against the high level of contributions
imposed and recommended exclusion of members of existing pension schemes

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 9 of 49
from compulsory registration; as collapse of many successful pension schemes
would complicate its mandate as a regulator of the pensions industry.

[13] On his part, the CS Labour argued that: the enactment process of the NSSF
Act 2013, involved full public participation and sensitization; the NSSF Act 2013,
made sufficient provision towards benefits of surviving family members upon the
demise of a contributor; both the NSSF Board and the CS Labour are obliged to
consult the SRC in determining remuneration of board members; the NSSF Act
2013, gives the self-employed the opportunity to register with the Fund; Section
19(2) of the NSSF Act 2013, is meant to minimize or eliminate evasion of NSSF
contributions; Section 21 gives employees the right to opt out of Tier II to join
private pension schemes; Section 27 provides that interest charged on members’
late payments is credited to members’ accounts and Section 35(4) does not give the
NSSF Board absolute power to decline to pay or vary payments to a nominated
beneficiary as alleged. Further, it was urged, 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.

[14] The Federation of Kenya Employers (FKE) and the Central Organization of
Trade Unions (COTU), who were interested parties at the ELRC, reiterated the
appellants’ stance. They urged that the provisions of the NSSF Act 2013, violated
Articles 10 and 43 of the Constitution. In addition, they asserted that gratuity and
pension schemes operated for the benefit of their members under registered CBAs
were not recognized by the Act nor were their members exempted from mandatory
contribution. They claimed that there was inadequate consultation, with FKE
having been invited to attend only one meeting on 26th March 2014 which was
insufficient for effective discussion of their concerns about the Act. Moreover, they
asserted, their members would suffer irreparable financial loss if the NSSF Act,
2013 was implemented in its present form.

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 10 of 49
[15] After hearing the parties, the trial court framed six questions for
determination viz: whether there was sufficient public participation as envisaged
under Article 10 of the Constitution prior to the enactment of the NSSF Act 2013;
whether the NSSF Act 2013, had implications on County Finances and therefore,
the Bill ought to have been tabled before the Senate prior to its enactment in terms
of Articles 205(1) and 110 of the Constitution; whether the NSSF Act 2013, violated
the constitutional rights of the petitioners’ members as set out in the consolidated
petition; whether the NSSF Act 2013, was in conflict with the provisions of the
Competition Act; whether the petitioners were entitled to reliefs sought; and who
should have borne the costs of the petition.

[16] Ultimately, in its Judgment dated 19th September 2022, the ELRC held that
the NSSF Act 2013, was unconstitutional, null and void, and issued the following
Orders:

a) A declaration that the NSSF Act 2013, has implications on County

Finances and therefore the Bill ought to have been tabled before the
Senate prior to its enactment in terms of Articles 205(1) and 110 of the
Constitution;

b) A declaration that the provisions of the NSSF Act 2013, are inconsistent
with the provisions of Article 10(1)(b) and (c) of the Constitution as read
with section 3 of the Competition Act by giving the Fund a monopoly in
the provision of pension and social security services in the country;

c) Section 13 of the NSSF Act 2013, is in conflict with Article 230(4) of the
Constitution to the extent that it requires the payment of allowances
and fees approved by the CS Labour, a mandate of the SRC;

d) Section 19(2) of the NSSF Act 2013, predicating access to public services
on NSSF membership, is in conflict with Articles 21(1), 47(1) and 232(1)
of the Constitution;

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 11 of 49
 e) Section 20 of the NSSF Act, 2013 making contribution to the Fund
mandatory and obliging employees with adequate alternative pension
or social security schemes to join those operated by the NSSF Board
violates rights of employees and employers’ free choice contrary to
Article 49 of the Constitution;
f) An order restraining the 1st and 2nd respondents from applying the
NSSF Act 2013, on employees with adequate alternative pension or
social security schemes unless they opt in; and

g) An injunction prohibiting and restraining the respondents from

demanding, compelling or requiring mandatory registration,
enrolment or listing of any employer or employee whether registered
as a member of any retirement benefit scheme or not; to register and
contribute their earnings or any part thereof in terms of the NSSF Act,
2013.

[17] On the issue, whether there was sufficient public participation as envisaged
under Article 10 of the Constitution of Kenya prior to the enactment of the NSSF
Act 2013, the trial court held that there was no evidence adduced by the appellants
demonstrating that the method used for public participation was wanting. The
Court noted that the appellants represented the formal sectors involved in the
legislative process and that the informal sectors they complained on behalf of, did
not place objections to the enactment process.

[18] As pertains the issue whether the NSSF Act 2013, had implications on County
Finances, therefore necessitating the Bill to be tabled before the Senate prior to
its enactment in terms of Articles 205(1) and 110 of the Constitution, it was the
Court’s determination that the Act dealt with matters over which the Senate and
National Assembly had concurrent jurisdiction. According to the Court, the NSSF
Act 2013, imposed mandatory and optional pension schemes for public officers in
both National and County Governments. Therefore, failure to involve the Senate
in its enactment was fatal to the Act.

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 12 of 49
[19] On whether the NSSF Act 2013, violated the constitutional rights of the
petitioners’ members as set out in the consolidated petition, the trial court held
that the State remained the ultimate duty bearer in providing social security under
Article 43(3) of the Constitution through resource allocation. Accordingly, the
court stated that these resources should emanate from the State hence the Fund’s
attempt to remove this duty from the State to registered members of the Fund was
an overreach.

[20] Further, basing its determination on the purposive interpretation principle,

the court declared various provisions of the NSSF Act 2013, unconstitutional as
follows; Section 19(2) of the Act which imposed registration with the scheme as a
pre-condition to access public services was held to serve no legitimate purpose.
Additionally, it was held to be unreasonable and unjustifiable in an open and
democratic society, contrary to Articles 20(4)(a), 21(1) and 24 of the Constitution.
The court also declared Section 13 of the Act unconstitutional for usurping the
SRC’s mandate to approve remuneration payable to the NSSF Board and
Committee members, and vesting the same upon the CS, Labour.

[21] As regards the conflict between the NSSF Act 2013, and the provisions of the
Competition Act, the ELRC held that the NSSF Act 2013, favours the NSSF over
other pension providers in the entire country as social security providers, which
would kill or stifle such schemes, therefore precipitating conflict between the
former and the Competition Act.

(ii) At the Court of Appeal

[22] Aggrieved, the 1st respondent moved the Court of Appeal vide Civil Appeal
No. E656 of 2022 premised on 14 grounds of appeal. Conversely, the appellants
filed a Notice of Cross Appeal and a Notice affirming the ELRC’s Decision.

[23] In a nutshell, the 1st respondent urged that: the ELRC wrongfully assumed
jurisdiction over a matter falling within the High Court’s domain under Article
165(3)(d)(i) of the Constitution; the consolidated petition concerned the

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constitutionality of the NSSF Act 2013, or its specific sections; the petition did not
disclose any employer-employee relationship to trigger the jurisdiction of the
ELRC; Article 162(2)(a) of the Constitution and Section 12(1) of the Employment
and Labour Relations Court Act (the ELRC Act) limit the Court’s jurisdiction to
disputes relating to employment and labour relations; none of the petitions raised
a constitutional issue ancillary or incidental to matters contemplated under
Section 12(1) of the ELRC Act; and the allegations of unconstitutionality of the
NSSF Act 2013, or its impugned sections did not arise from an employment and
labour relations dispute.

[24] The CS Labour, the Competition Authority, the Attorney General and the
RBA associated themselves with the submissions of the NSSF Board. In addition,
they contended that the NSSF Act 2013, related to the entire populace and was not
limited to employers and employees as shown by its objectives under Section 4(b)
of the Act.

[25] In opposing the appeal, the 1st and 2nd appellants submitted that the
consolidated petition was initially filed at the High Court then transferred by the
court to the ELRC on grounds that social security and employment issues fall
within the jurisdiction of the ELRC, which transfer was not opposed. They argued
that the bulk of the contributors to the Fund established by the NSSF Act 2013,
were employers and employees subject to the Employment Act and that
contributions to the Fund were based on the existence of a Contract of Service.
Further, it was urged that pursuant to Article 162(2)(a) of the Constitution,
Parliament enacted the ELRC Act which at Section 12(1) granted the court original
jurisdiction to determine employment and labour disputes. Moreover, that the
term “employment and labour” entailed any dispute emanating from an employer
such as the requirement to make NSSF deductions. According to the 1st and 2nd
appellants, matters falling under ELRC jurisdiction listed in Section 12(1) of the
ELRC Act were not exhaustive as demonstrated by use of the word “including.”

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[26] The 1st and 2nd appellants cited the case of Republic v. Karisa Chengo &
2 Others Supreme Court Petition No. 5 of 2015; [2017] eKLR (The Karisa
Chengo Case) which stated that the Constitution sets out in broad terms the
jurisdiction of the ELRC while Section 87(2) of the Employment Act extends the
Court’s jurisdiction to issues disclosed in the petitions. They contended that the
constitutionality of the impugned Act and the violations of the fundamental rights
and freedoms cited in the petitions are ancillary to the core mandate of the ELRC.
Further, they relied on two South African decisions; GCABA v. Minister of
Safety and Security and Others CCT 64/08[2009]ZACC26 and Solidarity
and Others v. South Africa Broadcasting Corporation Case no. J
1334/16, in their submission to the effect that the ELRC has concurrent jurisdiction
with the High Court on matters touching on violation of fundamental rights arising
from employment and labour relations; and any dispute over the constitutionality
of any executive or administrative act, threat or conduct by the State in its capacity
as an employer.

[27] In their cross appeal, the 1st and 2nd appellants urged that there was no proper
and reasonable public participation. They urged the court to all0w their Cross
Appeal and remit the matter to the High Court in the event that they determined
that the ELRC had no jurisdiction, because they ought not to suffer due to the High
Court’s decision to transfer the petitions to the ELRC. The FKE and Kenya County
Government Workers Union associated themselves with the 1st and 2nd appellants’
submissions. In addition, they faulted the 1st respondent for raising the objection
on jurisdiction for the first time on appeal. It is instructive to note that the 3rd
appellant did not participate in the proceedings before the Court of Appeal.

[28] After hearing the parties, the Court of Appeal delineated two issues for
determination. It began by interrogating the issue of jurisdiction stating that it
was a threshold matter which went to the competence of a court to hear and
determine a suit. It stated that a court of law is invested with jurisdiction to hear a
matter when: it is properly constituted as regards numbers and qualifications of

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members of the bench; the subject matter of the case is within its jurisdiction and
there is no feature in the case preventing the court from exercising its jurisdiction;
and the case comes before the court initiated by due process of law, upon fulfilment
of any condition precedent in the exercise of its jurisdiction.

[29] The Court of Appeal observed that the germane issue identified by the ELRC
in paragraph 1 of its Judgment was the constitutional validity of the legislative
process of the NSSF Act 2013, and in the alternative, of some specific provisions of
the Act. It held that the ELRC therefore fell into error when it failed to appreciate
that the issue before it fell within the jurisdiction of the High Court as prescribed
by Article 165(3)(d)(i) of the Constitution. According to the Appellate Court, for
the ELRC to assume jurisdiction, constitutional issues must have arisen from an
employer-employee dispute. The Court underscored that this was clear from the
intention of Parliament in the preamble and scenarios listed in Section 12 of the
ELRC Act. Contrary to the appellants’ argument that the word ‘including’ was wide
enough to cover the dispute before the ELRC, the Court of Appeal held that it ought
to be construed with reference to its legal and factual context. Consequently, the
Court determined that since the constitutional validity of the NSSF Act 2013, or its
targeted provisions did not arise from an employer-employee dispute, the matter
did not fall under Section 12 (1)(a)-(f) of the ELRC Act.

[30] On the second issue, whether the enactment of the NSSF Act 2013, required
participation of the Senate as provided under Article 110 of the Constitution, the
Court of Appeal noted that all parties agreed that under part 1 of the Fourth
Schedule, standards for social security and professional pension plans is a function
expressly conferred upon the National Government. It posited that in order to
determine whether the Bill leading to the enactment of the NSSF Act 2013, fits the
condition in Article 110(1)(a) of the Constitution as affecting functions and powers
of the County Government, the ELRC ought to have applied the “pith and
substance” test, to determine the subject matter or substance of the legislation, its
true purpose and legal effect. The Appellate Court concluded that the ELRC failed

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 16 of 49
to analyse Articles 109 to 114 of the Constitution, and provisions of parts 1 and 2 of
the Fourth Schedule so as to satisfy itself that the legislation affected functions of
the County Government. Therefore, the ELRC erred in law by holding that the
concurrence of the Senate and the National Assembly was required in enacting the
NSSF Act 2013.

[31] Consequently, in a Judgment delivered on 3rd February 2023, the Court of

Appeal allowed the appeal and set aside the Judgment and all consequential
Orders of the ELRC in its entirety. The Court held that the ELRC lacked jurisdiction
and as such, the Judgment and Orders arising from its proceedings were a nullity.
It stated that the plea by the appellants for the consolidated petition to be remitted
to the High Court was undesirable. This is because parties were given an
opportunity to address the jurisdiction question but fiercely defended their
respective positions, leading to the protracted battle the Chief Justice had
cautioned against. The Court of Appeal also faulted the ELRC for granting both the
main and alternative prayers pleaded. In its view, it was not proper for the bench
to determine the constitutional validity of provisions of a statute that it had already
nullified.

(iii) At the Supreme Court

[32] Aggrieved by the Court of Appeal’s decision, the appellants have filed the
instant consolidated appeal premised on grounds summed up as follows, that the
learned Judges of the Court of Appeal erred by:

i. Nullifying the proceedings and judgment of the ELRC on the grounds

that the ELRC was not a court of competent jurisdiction to entertain the
suit;

ii. Holding that the jurisdiction to determine disputes relating to the

constitutionality of statutes and fundamental rights is exclusive to the
High Court and thus cannot be exercised by the ELRC;

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 17 of 49
 iii. Failing to appreciate a dispute as to the constitutionality of a statute
that fundamentally alters the pension obligations of ‘every employer
and employee’ in the country is a dispute relating ‘relating to’
employment and labour relations within the meaning of Article
162(2)(a) of the Constitution;
iv. Failing to appreciate that the obligation to deduct pension
contributions from salaries and remit such contributions to the NSSF
(or any other pension scheme) cannot arise in a vacuum and
specifically in the absence of an employer-employee relationship;

v. Failing to appreciate that the mandatory obligations created by the

impugned Act (of registration, deduction and remittance of monthly
contribution to the NSSF) only apply to employers and employees (to
the extent that registration and contributions of other potential
members of the NSSF are ‘voluntary’);

vi. Misdirecting themselves by proceeding to determine whether the Bill

preceding the Act should have been referred to the Senate, after
declaring the ELRC proceedings and judgment a nullity;

vii. Failing to refer the matter to the High Court as sought by the 1st and 2nd
appellants in the cross appeal;

viii. Pre-empting the High Court’s decision on substantive issues raised in

the consolidated petition by making substantive findings on them;

ix. Failing to appreciate the role of the Senate as provided under Article 96
of the Constitution;

x. Misinterpreting and misapplying Articles 109 to 114 of the Constitution

by maintaining that the National Assembly was free to enact laws
encroaching on matters over which the Senate should have a say,

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 18 of 49
 without seeking the concurrence of the Senate, and that the NSSF Act
2013, did not affect the finances of the county government;

xi. Misapplying Article 46 of the Constitution by failing to appreciate that

the NSSF Act 2013, conflicted with the Competition Act to the extent that
its effect was to give the NSSF a monopoly, which would stifle and kill
the pensions industry by favouring the NSSF over other pension
providers; and

xii. Failing to consider and render judgment on the constitutionality of

sections 13, 19(2) and 20 of the NSSF Act, 2013 declared by the ELRC to
be null and void.

[33] Consequently, they seek the following reliefs, that:

a. The consolidated appeal be allowed;

b. The Judgment of the Court of Appeal at Nairobi (Okwengu,

Warsame and Mativo, JJ.A) in Civil Appeal No. 656 of 2022
delivered on 3rd February 2023 be set aside;

c. The Judgment delivered by the Employment and Labour Relations

Court at Nairobi (Nduma Nderi, Wasilwa and Mbaru, JJ.) in
Constitutional Petition No. 38 of 2014 (consolidated with
Constitutional Petition Nos. 34, 35, 49 and 50 of 2014) on 19th
September 2022 be restored and affirmed;

d. The 1st and 5th respondents reimburse the appellants the costs of the
proceedings before the Employment and Labour Relations Court, the
Court of Appeal and the Supreme Court.

e. Alternatively, and without prejudice to prayers (a) to (d):

i. The dispute raised in the Employment and Labour Relations

Court (Nairobi) Constitutional Petition No. 38 of 2014

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 19 of 49
 (consolidated with Constitutional Petition Nos. 34, 35, 49 and
50 of 2014) be remitted to the High Court for hearing and
determination;

ii. A conservatory order be issued restraining the 1st, 3rd and 5th
respondents and their respective agents, subordinates and
proxies from implementing sections 18, 19, 20 and 71 of the
NSSF Act, 2013 pending the hearing and determination of the
consolidated petition by the High Court; and

iii. Such other, further, additional, alternative or incidental

relief(s) as this Honourable Court may deem just and
expedient in the interest of justice.

[34] In opposing the consolidated appeal, the 1st respondent filed replying
affidavits sworn on 7th March 2023 and 25th March 2023 and grounds of objection
dated 25th March 2023 and filed on 27th March 2023. The 2nd, 4th and 5th
respondents similarly filed their replying affidavit and grounds of objection dated
13th and 17th March 2023, while the 3rd respondent filed grounds of objection dated
10th March, 2023 and 17th March 2023.

[35] The respondents argue inter alia that the ELRC had no jurisdiction to
determine the constitutionality of the NSSF Act 2013, because it was enacted
pursuant to Article 43(1)(e) of the Constitution to provide social security
nationwide. Therefore, the dispute did not fall under Article 162(2)(a) of the
Constitution and Section 12(1) of the ELRC Act which only cover disputes between
employers and employees. They also contend that the Senate was precluded from
involvement in the enactment of the NSSF Act 2013, because it was a nationwide
legislation. Furthermore, the respondents are of the view that remitting the case to
the High Court would be an unnecessarily costly affair; and urge that the Act is
meant to include NSSF contributions from casual and seasonal employees, hence
its non-implementation amounts to discrimination.

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 20 of 49
[36] In response, the 1st and 2nd appellants filed an affidavit in rejoinder to the 1st,
2nd, 4th and 5th respondents’ grounds of objection and the 1st respondent’s replying
affidavit to the petition; and grounds in support of the 3rd appellant’s appeal dated
13th March 2023 and filed on even date. The 3rd appellant filed a rejoinder to the 1st
to 5th respondents’ responses on 15th March 2023; while the 6th and 13th
respondents filed an affidavit and their respective grounds in support of the
petition dated 24th February 2023, 14th March 2023 and 15th March 2023.

C. THE PARTIES’ RESPECTIVE SUBMISSIONS

(i) Appellants’ and the 6th Respondent’s Submissions

[37] The 1st and 2nd appellants’ submissions are dated 14th April 2023 and filed on
even date; and the 3rd appellant’s submissions are dated 24th March 2023 and filed
on 27th March 2023. By its submissions dated 7th April 2023, the 6th respondent
associates itself with the appellants’ case. Their joint case is condensed into the
following issues: whether the ELRC had jurisdiction to entertain the consolidated
petition; whether the ELRC had jurisdiction to determine if the NSSF Bill 2013
should have been debated by the Senate; whether the Court of Appeal had
jurisdiction to determine the merits of the case if the ELRC lacked jurisdiction;
whether the case should have been remitted to the High Court; and whether the
3rd appellant has locus standi to prosecute the present appeal.

[38] On the issue of jurisdiction of the ELRC under Article 162 of the Constitution,
and Section 12 of the ELRC Act, the appellants submit that these provisions extend
the jurisdiction of the ELRC to matters relating to employment and labour
relations including those listed in Section 12(1)(a)-(g). They reiterate that the list
is not exhaustive and that Parliament donated additional jurisdiction over disputes
referred to the Court connected to employment and involving labour relations.

[39] Moreover, the appellants posit that it is inconceivable that the

constitutionality of a law fundamentally altering obligations of employers and

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 21 of 49
employees, is not a dispute relating to employment and labour relations within the
meaning of Article 162(2)(a) of the Constitution. They assert that the present
proceedings are distinguishable from the case of Albert Chaurembo Mumba
& 7 Others v. Maurice Munyao & 148 Others SC Petition No. 3 of 2016;
[2019] eKLR (the Albert Chaurembo Case) in which the Court indicated that
the ELRC has no jurisdiction over pension. It is further submitted that our
employment laws are derived from the Conventions and Recommendations of the
International Labour Organization (ILO), which also cover social security; and that
Kenya is obliged to observe the same by virtue of her membership.

[40] It is the appellants’ case that a restrictive interpretation of Article 162(2) of

the Constitution and Section 12 of the ELRC Act strictly between employers and
employees defeats the intention of the Kenyan people who wanted a specialized
Court to eliminate the friction that existed between the Industrial Court and the
High Court. It is urged that this was prompted by the narrow jurisdictional
provision in Section 12(1) of the Labour Institution Act 2007 applicable prior to
the new constitutional dispensation. Consequently, the word “including” in Section
12(1) of the ELRC Act cannot be taken to contextually limit the jurisdiction of the
ELRC, as stated by the Court of Appeal.

[41] Furthermore, the appellants underscore that pursuant to a directive by the

Chief Justice, the ELRC being a Court of the same status as the High Court,
currently has a Judicial Review and Labour Rights division mandated to handle
constitutional petitions for the enforcement of fundamental freedoms as well as
other relevant provisions of the Constitution and to deal with judicial review
applications. According to the appellants, this is in line with the gravamen of the
consolidated appeal which challenges violation of the petitioners’ rights through
enactment of the NSSF Act, 2013.

[42] As regards the jurisdiction of the ELRC as interpreted in certain cases, the
appellants submit that in the case of United States International University
(USIU) v. Attorney General HC Petition No. 170 of 2012 [2012] eKLR,

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 22 of 49
Majanja, J. observed that the expression ‘courts of the status of the High Court’
was borrowed from Section 166 of the South African Constitution which equates
the Labour Court with the High Court of South Africa. They postulate that by parity
of reasoning, Article 162(2) of the Constitution of Kenya 2010 should be
interpreted in the context of the South African Constitution, which in Section 172
gives all courts inclusive of the Labour Court the power to declare any law or
conduct inconsistent with the South African Constitution invalid. The same
position applies to the National Industrial Court of Nigeria which Court is granted
exclusive jurisdiction on inter alia interpretation of Chapter IV of the Constitution
of Nigeria as it relates to any matter over which the Court has jurisdiction as well
as matters relating to ILO conventions and standards. Notably, it is submitted,
both the Nigerian and South African Labour Courts have exercised their
jurisdiction in determining matters over pension disputes.

[43] Additionally, the appellants denounce the 1st respondent’s allegation that
they are opposed to the NSSF Act 2013, because they do not wish to make
contributions on behalf of casual and seasonal employees. They submit that they
are bound to and have been contributing NSSF payments for the benefit of such
employees which they will continue doing under any requisite regime of law.
Further, they clarify that what they are opposed to, is contribution of “pension”
and “gratuity” concurrently. The 3rd appellant specifically highlighted that its
members belong to a superior pension scheme in which they contribute 27% of
their earnings. In the same vein, the appellants contend that Article 43(1)(e) which
the respondents argue was a precursor to the impugned Act was meant to benefit
persons who were unable to support themselves as envisaged by the preamble to
the Social Assistance Act No. 24 of 2o13. Therefore, they surmise that Article
43(1)(e) and (3) introduced nothing new with respect to social security benefits
tied to employment.

[44] As regards concurrence between the Senate and the National Assembly in
the enactment of the NSSF Act, 2013, the appellants submit that the functions to

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 23 of 49
be performed by County Governments under the Fourth Schedule are performed
through human capital in form of labour. Their wages are derived from revenue
allocation sourced by the Senate on behalf of the County Governments. Therefore,
the NSSF contributions from those wages must be budgeted for and financed. To
this end, the appellants contend that the Senate should have been consulted on the
matter which falls directly within its mandate, especially in light of the fact that
County Governments have their own pension schemes, Laptrust, and the County
Pension Fund.

[45] Concerning the issue whether the Court of Appeal had jurisdiction to
consider the merits of the consolidated petition having decided that the ELRC
proceedings were a nullity, the appellants submit that the Court of Appeal
assumed original jurisdiction by considering issues amounting to nothing.
According to the appellants, this was in contravention of Article 164(3) of the
Constitution and Section 3 of the Appellate Jurisdiction Act. Therefore, the
proceedings of the Court of Appeal beyond the determination of the jurisdiction of
the ELRC were conducted devoid of jurisdiction and are null and void. In support
of their submission, the appellants cite the Court of Appeal Ruling in Suleiman
Said Shabal v. Independent Electoral Boundaries Commission Civil
Appeal No. 42 of 2013 [2014] eKLR.

[46] As regards remitting of the case, the appellants submit that having made its
finding on jurisdiction, the Court of Appeal was duty bound to remit the
consolidated petition to the High Court for determination, since it did not have
original jurisdiction over the matter. They reiterated that the High Court itself
initially stated that it had no jurisdiction over the consolidated petition which
decision was not challenged. It is further submitted that by determining the issue
of concurrence only to the exclusion of all other aspects of the impugned Act’s
unconstitutionality, the Court of Appeal Judgment denied the appellants justice
contrary to Articles 48 and 50 of the Constitution.

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 24 of 49
[47] Lastly, as regards its locus standi to prosecute its case before the Court
having been an interested party before the trial court and having failed to
participate in proceedings before the Court of Appeal; the 3rd appellant attributed
its non-involvement to the 1st to 5th respondents’ failure to serve it with the Notice
and Memorandum of Appeal as well as hearing notices in Civil Appeal No. E656 of
2022. It is urged that this was in violation of the audi alteram partem rule
rendering the resultant judicial decision null and void. To that end, the 3rd
appellant concludes that the challenge of its standing before this Court is
unwarranted and unavailable to parties that refused, failed or omitted to serve it.

(ii) 1st Respondent’s Submissions

[48] In its submissions dated 6th and 27th April 2023, the 1st respondent contends
that the appellants’ submissions are a distortion of the facts leading to the present
appeal and that they misapprehended the Court of Appeal’s Judgment. It gave a
synopsis of the repealed Act which set out a scheme providing for a mandatory
provident fund to which employers and employees were obligated to remit
monthly contributions. However, the repealed Act excluded casual workers from
compulsory registration as members of the Fund. The 1st respondent urged that the
Constitution of Kenya 2010 made social security a fundamental right to which
‘every person’ is entitled under Article 43. Therefore, the NSSF Act, 2013 was
enacted for realization of social security which is entirely different from social
assistance as alleged by the appellants. Further, it is urged that social security is
defined by three pillars, namely: Pillar I, which is basic and mandatory social
security for all persons equated to contributions under Tier I; Pillar II which is a
complementary contribution component under Tier II, and Pillar III which is a
voluntary personal savings pillar. The 1st respondent submits that social security
has inbuilt financial contributions from members in formal employment, self –
employment and in the informal sector.

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 25 of 49
[49] It is the 1st respondent’s further submission that the 1st and 2nd appellants are
owners of vast tea and coffee estates who employ hundreds of casual or seasonal
workers during the harvest period. Accordingly, they represent the commercial
interests of their members whose position is that gratuity payment is sufficient
social security for permanent workers. For casual workers, compulsory
registration was not required, however under the repealed Act, seasonal workers
were mandatorily registrable. According to the 1st respondent, gratuity does not
suffice as social security for the reasons that: it is an award based on merit and
length of service payable at the employer’s discretion; it applies to continuous
length of service excluding casual workers who work only during the high season;
gratuity conditions vary from employer to employer based on the specific
employment agreement or CBA; and finally, gratuity is not a funded scheme,
leaving employees at the mercy of employers and may not be payable in cases of
insolvency.

[50] The 1st respondent then submits on the following issues; whether the ELRC
had jurisdiction to determine the constitutional validity of an Act of Parliament
with no nexus to a contest involving employers and employees; whether the NSSF
Bill 2013, was a Bill concerning counties; whether the Court of Appeal had powers
to remit the dispute to the High Court and the locus standi of the 3rd appellant
before the Court.

[51] As pertains the jurisdiction of the ELRC to determine the constitutional

validity of the NSSF Act 2013, the 1st respondent cited Article 165(3)(d) which gives
the High Court jurisdiction to determine whether any law is inconsistent with or
in contravention of the Constitution. It is submitted that to protect jurisdictional
integrity of specialized courts, Article 165(5) precludes the High Court from
determining matters falling within the jurisdiction of specialized courts, and vice
versa. The 1st respondent also relied on the Karisa Chengo Case in which the
Supreme Court stated that parity of hierarchical structure does not imply that
either the Environment and Land Court or the ELRC is the High Court or vice

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 26 of 49
versa. Further, submitted the 1st respondent, when weighed against Section 12 of
the ELRC Act, it is evident that the present action whose dominant purpose is
adjudication of the constitutionality of a statute is beyond the purview of the ELRC.
The 1st respondent also cited the Albert Chaurembo Case in urging that
pensions disputes are not categorized as trade disputes.

[52] On whether the NSSF Bill 2013, was a Bill concerning counties, the 1st
respondent set out the definition of bills concerning County Governments under
Article 110 of the Constitution. Namely, bills containing provisions affecting the
functions and powers of County Governments as set out in the Fourth Schedule;
relating to elections of County Assembly or a County Executive or referred to in
Chapter Twelve affecting the finances of County Governments. Consequently, the
1st respondent surmises that the NSSF Bill did not affect county finances which
classification applies specifically to sharing of revenues between both levels of
Government. The 1st respondent reiterates that the NSSF Act 2013, was in
furtherance of the right to social security under Article 43(1)(e) of the Constitution,
as opposed to the provision of welfare assistance to vulnerable persons under
Article 43(3) of the Constitution and the Social Assistance Act 2013. Therefore, it
falls squarely under the functions of the National Government stipulated in part 1,
paragraph 14 of the Fourth Schedule which provides for consumer protection,
including standards for social security and professional pension plans. In support
of its submission, the 1st respondent cited the Court of Appeal decision in Pevans
East Africa Limited & Another v. Chairman, Betting Control &
Licensing Board & 7 Others Civil Appeal No. 11 of 2018; [2018] eKLR.

[53] As regards remitting of the case to the High Court, the 1st respondent relies
on Section 75 of the Civil Procedure Act and Order 42 Rule 24 of the Civil
Procedure Rules, in its submission that the power to remand a dispute is a
discretionary power to be exercised by an Appellate Court; the power can be
exercised where the Appellate Court has disposed of the suit on a preliminary
point; and the Court from which the appeal originated should have had

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 27 of 49
jurisdiction. Based on these considerations, it is urged, discretion to remand was
not available to the Court of Appeal because the ELRC had no jurisdiction to hear
the dispute.

[54] As pertains the locus standi of the 3rd appellant before the Court, the 1st
respondent submits that the 3rd appellant applied to be joined as an interested
party before the trial court on grounds that it represented the interests of over
6000 pensioners of Laptrust. However, the 1st respondent argues that the Laptrust
Defined Benefit Pension Scheme is a closed fund. Therefore, it does not admit new
members but exists solely for the purpose of paying out provident funds until the
last retiree is paid, at which point, it will be wound up. For this reason, it is
submitted, the scheme is not within the purview of the NSSF Act 2013. To this end,
the 1st respondent urges that the 3rd appellant has no identifiable stake in the
consolidated petition, more so in its peripheral role as an interested party before
the trial court. Further, the 1st respondent urges that the 3rd appellant was served
with the requisite pleadings and was aware of the proceedings before the Court of
Appeal.

(iii) 2nd, 3rd, 4th and 5th Respondents’ Submissions

[55] The 2nd, 4th and 5th respondents’ submissions dated 10th and 25th April 2023
and the 3rd respondent’s submissions dated 11th and 27th April 2023 are largely
similar to those of the 1st respondent. The additional aspects they have submitted
on are whether the NSSF Act 2013, creates a monopoly in the consumer market
and whether a law can be declared unconstitutional for being inconsistent with
another law.

[56] As regards the issue, whether the NSSF Act 2013, creates a monopoly in the
consumer market, it is submitted that the alleged superiority or monopoly of the
NSSF scheme is merely speculative and not backed by evidence. They argue that
the retirement program established under the NSSF Act 2013, is a primary
programme that does not deter employees and businesses from negotiating better
programmes. Moreover, Tier I of the scheme acts as a safety net in the event that
Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 28 of 49
alternative schemes fail; and the fund fosters healthy competition among
retirement plans. Therefore, the NSSF Act 2013, was enacted in an effort to fulfil
progressive realization of rights guaranteed under Article 43 of the Constitution.

[57] On whether a law can be declared unconstitutional for being inconsistent

with another law, the 2nd, 4th and 5th respondents cite the case of Juma
Nyamawi Ndungo & 5 Others v. Attorney General; Mombasa Law
Society (Interested Party) Mombasa HC Constitutional Petition No. 196 of
2018; [2019] eKLR, in which the High Court held that when the provisions of a
later Act are so contradictory to those of an earlier Act that the two cannot exist,
the earlier Act is implicitly repealed by the later Act. Therefore, it is submitted, the
mandatory contribution to NSSF as prescribed in the NSSF Act 2013, takes
precedence over competition provisions in Section 5 of the Competition Act. In
conclusion, they urged that the consolidated appeal be dismissed in its entirety,
with costs.

D. ISSUES FOR DETERMINATION

[58] Based on the parties’ pleadings and respective submissions, we consider that
the following five issues, once determined will dispose of the appeal at hand:

(i) Whether the 3rd appellant is a proper party to participate

in the appeal as of right under Article 163(4) (a) of the
Constitution;

(ii) Whether the Employment and Labour Relations Court

lacked jurisdiction to determine the constitutional
validity of the NSSF Act 2013.

(iii) Whether the Court of Appeal exercised original

jurisdiction in partially determining the constitutionality
of the NSSF Act 2013;

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 29 of 49
 (iv) Whether the case should be remitted to the High Court for
determination; and

(v) Reliefs, if any, available to the parties.

E. ANALYSIS

(i) On the 3rd appellant’s locus standi before the Court

[59] In its preliminary objection dated 7th March 2023, the 1st respondent has
made heavy weather of the 3rd appellant’s capacity to institute its appeal as of right
before the Court, it having been “simply” an interested party before the trial court
and not having participated in the proceedings before the Court of Appeal. The 2nd,
3rd, 4th and 5th respondents associate themselves with the 1st respondent’s
argument. Collectively, the respondents take issue with the 3rd appellant mutating
from an interested party and purporting to take over the role of primary parties,
yet it did not have independent claims and remedies before the trial court.

[60] Moreover, the respondents urge that the 3rd appellant’s claim that it was not
served is immaterial, as it was fully aware of the pendency of the appeal. They
assert that the 3rd appellant attended a meeting held on 19th October 2022, and
fully participated in discussions on the appeal filed by the 1st respondent, proposing
that the appeal be withdrawn. It is also urged that in any event, the 3rd appellant’s
membership consists of former employees of local authorities who were
contributors of a closed scheme, to wit, Laptrust, a Fund being run as a going
concern, which will be wound up upon payment of the last contributor.
Consequently, it is urged, the impugned Act does not apply to its members, thereby
divesting the 3rd appellant of any identifiable stake in the present proceedings.

[61] On the other hand, the 3rd appellant denies that it was served with the Notice
and Record of Appeal, or that it was aware of the proceedings before the Court of
Appeal. To buttress its denial, the 3rd appellant challenged the respondents,
specifically the Attorney General, to prove service by way of an affidavit of service.

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 30 of 49
The 3rd appellant avers that no such evidence has been placed before the Court and
it must follow therefore, that this ground of appeal is not contested. On the
allegation that counsel for the 3rd appellant attended the meeting of 19th October
2022 alluded to by the respondents, the 3rd appellant responded that the informal
meeting was held long after the expiry of the 7-day deadline prescribed by Rule
79(1) of the Court of Appeal Rules 2022, and could not be a substitute for service.
Furthermore, the 3rd appellant urges that contrary to their argument, the
respondents signed a consent before the ELRC acknowledging that the 3 rd
appellant had an interest in the matter. Accordingly, they are now estopped from
alleging otherwise. To this end, it is submitted, the Court would be setting a
dangerous precedent if it were to indulge a party who refuses, fails or omits to serve
another, so as to deny it audience.

[62] Having set out the parties’ case, we now proceed to give our determination.
It is common ground that the 3rd appellant participated in the proceedings before
the trial court as an interested party, and did not participate in the proceedings
before the Court of Appeal. However, it is instructive to note that this Court
rendered itself on the 3rd appellant’s standing in its Ruling dated 16th June 2003
by stating:

“[22] …. Perusal of the prayers/reliefs and the case

advanced by the 3rd applicant in its appeal as well as its
motion reveals that they are more or less in tandem with the
1st and 2nd applicants’ case and reliefs sought in their appeal
and motion. As such, it cannot be said that the 3rd
applicant’s interests have gone over and above that of the
primary parties. What is more, we find that the 3rd applicant
has not introduced a new issue that was either not
canvassed before the superior courts below or did not arise
from the impugned judgment. As to whether the 3rd
applicant should have filed a review before the Court of

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 31 of 49
 Appeal as opposed to an appeal before this Court, we find
that issue would go to the merit of its appeal and ought to be
addressed in the consolidated appeal.”

[63] Be that as it may, despite the 5th respondent’s insistence that the 3rd appellant
was served with both the Notice and Record of Appeal, the State Counsel could
hardly prove service from the Record. They identified their Notice of Cross Appeal
at Volume 7, page 1028 of the 3rd appellant’s Record of Appeal, in support of their
assertion that they served the 3rd appellant by email. A perusal of the same reveals
that the 3rd appellant’s advocates on record are listed under “parties upon whom
the Attorney General intended to effect service”. However, this falls woefully short
of conclusive proof of service.

[64] Having concluded that there is no proof that the 3 rd appellant was served,
what remedy was available to it? The 3rd respondent suggests that in the
circumstances, the only avenue for redress available to it was to apply for review of
the Court of Appeal’s Judgment. However, we are differently minded. The
argument that the 3rd appellant was only an interested party before the trial court
with limited participation and is therefore precluded from filing an appeal before
this Court does not hold. Notably, it had a demonstrable interest and was active
before the trial court. Further, the lapse in service leading to its non-involvement
at the Court of Appeal lay squarely with the Attorney General and perhaps, to some
extent with the Court of Appeal itself.

[65] We agree with the 5th respondent that the overriding interest is that of a
primary party, in accordance with the principles set out in the case of Francis
Karioki Muruatetu & Another v. Republic & 5 Others Petition No. 6 of
2016; [2016] eKLR thus:

“Having carefully considered all arguments, we are of the

opinion that any party seeking to join proceedings in any
capacity, must come to terms with the fact that the overriding
interest or stake in any matter is that of the primary/principal
Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 32 of 49
 parties’ before the Court. The determination of any matter will
always have a direct effect on the primary/principal parties.
Third parties admitted as interested parties may only be
remotely or indirectly affected, but the primary impact is on
the parties that first moved the Court…

…. Therefore, in every case, whether some parties are enjoined

as interested parties or not, the issues to be determined by the
Court will always remain the issues as presented by the
principal parties, or as framed by the Court from the
pleadings and submissions of the principal parties.” [Emphasis
ours]

[66] However, we reiterate that in this case, the 3rd appellant’s case and prayers
are identical to those of the 1st and 2nd appellants, whose petition is the lead file.
The respondents’ argument as to the standing of the 3rd appellant is therefore
unmerited.

[67] This case is clearly distinguishable from our decision in Law Society of
Kenya v. Communications Authority of Kenya & 10 Others (Petition 8
of 2020) [2023] KESC 27 (KLR), wherein the Court declined to admit an appeal by
the intending appellant who had never been a party to the case at both the High
Court and Court of Appeal. The Court found difficulty in granting relief at the
appellate stage to a party who did not litigate those issues before the superior
courts.

(ii) Whether the Employment and Labour Relations Court

lacked jurisdiction to determine the constitutional validity
of the NSSF Act 2013

[68] It is the appellants’ argument that the ELRC had jurisdiction to declare the
NSSF Act unconstitutional. They base their argument on Article 162(2)(a) of the
Constitution and the opening paragraph of Section 12(1) of the ELRC Act, to urge

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 33 of 49
that the expression ‘relating to employment and labour relations’ cannot be
construed to mean only disputes between ‘employers and employees.’ Similarly, it
is urged, the expression ‘connected purposes’ in the preamble should be construed
to mean any dispute connected with employment and labour relations. As regards
the list of scenarios enumerated in Section 12(1) of the ELRC Act, the appellants
assert that the expression ‘including’ means “includes but is not limited to” in
accordance with the interpretation in Article 259(4)(b) of the Constitution. They
cite the case of EG v. Non-Governmental Organization Coordination
Board & Others HC Petition No. 440 of 2013; [2015] eKLR, on an inclusive
construction of the word ‘including’.

[69] Additionally, it is the appellants’ case that provision of social security benefits
including pensions is an integral component of employment and labour relations
both domestically and internationally. The NSSF Act 2013, they submit, falls
within that sphere. They urge that pension rights cannot exist outside of
employment; and that the drafters of the Constitution intended that the ELRC
should have jurisdiction on all matters relating to employment and labour
relations.

[70] In this regard, they posit that the interpretation of constitutional provisions
is not the preserve of the High Court more so where employment and labour
relations are involved. In their estimation, by necessary inference and deduction,
a dispute relating to the constitutionality of an Act of Parliament that applies only
to employers and employees and deals entirely with pension must be a dispute
within the four corners of the jurisdiction of the ELRC. Furthermore, the
appellants implore the Court to adopt the practice in the South African and
Nigerian Labour Courts which are empowered to nullify laws within their purview.

[71] Conversely, the respondents contend that the first issue as framed by the trial
court itself, was that the gravamen of the petition was for the court to find the
enactment of the NSSF Act No. 45 of 2013 in violation of the Constitution. They
therefore surmise that the trial court assumed jurisdiction over the enactment

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 34 of 49
process of the Act, which was not an issue incidental to the employer-employee
relationship. According to the respondents, the ELRC assumed the jurisdiction of
the High Court under Article 165(3)(d).

[72] This appeal turns on the ELRC’s jurisdiction as a court of the status of the
High Court to determine the constitutional validity of an Act of Parliament. In this
regard, this Court in the Karisa Chengo Case adopted the definition of
jurisdiction in the following terms:

“[35] In the above regard, we note that in almost all the legal
systems of the world, the term “jurisdiction” has emerged as
a critical concept in litigation. Halsbury’s Laws of
England (4th Ed.) Vol. 9 at page 350 thus defines
“jurisdiction” as “…the authority which a Court has to
decide matters that are litigated before it or to take
cognizance of matters presented in a formal way for
decision.” John Beecroft Saunders in his treatise Words
and Phrases Legally Defined Vol. 3, at page 113 reiterates
the latter definition of the term ‘jurisdiction’ as follows:
“By jurisdiction is meant the authority which a Court has to
decide matters that are litigated before it or to take
cognisance of matters presented in a formal way for its
decision. The limits of this authority are imposed by the
statute, charter or commission under which the Court is
constituted, and may be extended or restricted by like
means. If no restriction or limit is imposed, the jurisdiction
is said to be unlimited. A limitation may be either as to the
kind and nature of the actions and matters of which the
particular Court has cognisance or as to the area over which
the jurisdiction shall extend, or it may partake both these
characteristics…. Where a Court takes upon itself to

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 35 of 49
 exercise a jurisdiction which it does not possess, its decision
amounts to nothing. Jurisdiction must be acquired before
judgment is given.” [Emphasis added]

[73] For us to dispose of this issue in the face of the two contrasting positions of
the parties, it is important to briefly revisit the constitutional reform process that
preceded the establishment of the ELRC. In the Karisa Chengo Case, the Court
recounted the history and context in which the Committee of Experts (CoE)
conceived of specialised courts. Specifically, that the drafters of the Constitution
intended to delineate the roles of specialised courts, for the purpose of achieving
specialization while conferring equality of the status of the High Court to the new
category of courts. The Court clearly stated thus:

“[51] Flowing from the above, it is obvious to us that

status and jurisdiction are different concepts. Status
denotes hierarchy while jurisdiction covers the sphere of the
Court’s operation. Courts can therefore be of the same status,
but exercise different jurisdictions. That is why this Court has
reaffirmed its position that the jurisdiction of Courts is
derived from the Constitution, or legislation (see In Re the
Matter of the Interim Independent Electoral Commission, at paras.
29 and 30; and Samuel Kamau Macharia and Another v. Kenya
Commercial Bank and Two Others, Sup.Ct. Civil Application No. 2
of 2011 [para. 68]). In this instance, the jurisdiction of the
specialized Courts is prescribed by Parliament, through the
said enactment of legislation relating, respectively, to the
ELC and the ELRC.” [Emphasis added]

[74] Pursuant to Article 162(2)(a) of the Constitution, the ELRC was

operationalized by the Employment and Labour Relations Court Act No. 20 of
2011, whose purpose is to “establish the Employment and Labour Relations Court
to hear and determine disputes relating to employment and labour relations”. By

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 36 of 49
dint of Section 12 (1) of the Act, the jurisdiction of the Court is delineated as
follows:

12. Jurisdiction of the Court

(1) The Court shall have exclusive original and appellate

jurisdiction to hear and determine all disputes referred to
it in accordance with Article 162(2) of the Constitution and
the provisions of this Act or any other written law which
extends jurisdiction to the Court relating to employment
and labour relations including —

(a) disputes relating to or arising out of

employment between an employer and an
employee;

(b) disputes between an employer and a trade

union;

(c) disputes between an employers' organisation

and a trade unions organisation;

(d) disputes between trade unions;

(e) disputes between employer organizations;

(f) disputes between an employers' organisation

and a trade union;

(g) disputes between a trade union and a member

thereof;

(h) disputes between an employer's organisation

or a federation and a member thereof;

(i) disputes concerning the registration and

election of trade union officials; and

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 37 of 49
 (j) disputes relating to the registration and
enforcement of collective agreements.

[75] Section 12 (2) of the Act provides that:

“An application, claim, or complaint may be lodged with

the Court by or against an employee, an employer, a trade
union, an employers’ organization, a federation, the
Registrar of Trade Unions, the Cabinet Secretary or any
office established under any written law for such
purpose.”

From the above provisions of the Constitution and the Act, it is clear that the
jurisdiction of the ELRC is limited in terms of the types of disputes and the parties.

[76] On the other hand, the jurisdiction of the High Court to determine the
constitutional validity of a statute is clearly stipulated in Article 165(3)(d)(i) of the
Constitution in the following terms:

165....

(3) Subject to clause (5) the High Court shall have:

(d) jurisdiction to hear any question respecting the

interpretation of the Constitution including the
determination of:

(i) the question whether any law is inconsistent with

or in contravention of this Constitution...

[77] The question before us is whether, within the scheme of the jurisdictional
virements effected by the Constitution between the High Court and the two
specialized courts, the latter can determine the constitutional validity of a statute.
In order to answer this question, we have to revisit the relevant provisions of the
Constitution as above quoted.

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 38 of 49
Clause 5 to which Article 165 (3) is subject provides as follows:

“The High Court shall not have jurisdiction in respect of

matters-

a. reserved for the exclusive jurisdiction of the Supreme

Court under this Constitution, or

b. falling within the jurisdiction of the courts

contemplated in Article 162 (2).

[78] Once again, we are guided by this Court’s finding in the Karisa Chengo
Case wherein the Court held as follows:

“[52] In addition to the above, we note that pursuant to

Article 162(3) of the Constitution, Parliament enacted the
Environment and Land Court Act and the Employment and
Labour Relations Act and respectively outlined the
separate jurisdictions of the ELC and the ELRC as stated
above. From a reading of the Constitution and these Acts of
Parliament, it is clear that a special cadre of Courts, with
sui generis jurisdiction, is provided for. We therefore
entirely concur with the Court of Appeal’s decision that
such parity of hierarchical stature does not imply that
either ELC or ELRC is the High Court or vice versa. The
three are different and autonomous Courts and exercise
different and distinct jurisdictions. As Article 165(5)
precludes the High Court from entertaining matters
reserved to the ELC and ELRC, it should, by the same token,
be inferred that the ELC and ELRC too cannot hear matters
reserved to the jurisdiction of the High Court.” [Emphasis
added]

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 39 of 49
[79] In our view, there is nothing in the Constitution, the ELRC Act, or indeed in
our decision in the Karisa Chengo Case to suggest that in exercising its
jurisdiction over disputes emanating from employment and labour relations, the
ELRC Court is precluded from determining the constitutional validity of a statute.
This is especially so if the statute in question lies at the centre of the dispute. What
it cannot do, is to sit as if it were the High Court under Article 165 of the
Constitution, and declare a statute unconstitutional in circumstances where the
dispute in question has nothing or little to do with employment and labour
relations within the context of the ELRC Act. But, if at the commencement or
during the determination of a dispute falling within its jurisdiction, as reserved to
it by Article 162 (2) (a) of the Constitution, a question arises regarding the
constitutional validity of a statute or a provision thereof, there can be no reason to
prevent the ELRC from disposing of that particular issue. Otherwise, how else
would it comprehensively and with finality determine such a dispute? Stripping
the Court of such authority would leave it jurisdictionally hum-strung; a
consequence that could hardly have been envisaged by the framers of the
Constitution, even as they precluded the High Court from exercising jurisdiction
over matters employment and labour pursuant to Article 165 (5) (b). We are
therefore in agreement with the appellants’ submissions regarding this issue as
encapsulated in paragraph 69 of this Judgment.

[80] Having said so, we have to emphasize that the High Court retains the residual
jurisdiction to determine whether any law is inconsistent with the Constitution
within the meaning of Article 165, bearing in mind the provisions of Article 165 (5)
(b). It must also be restated that the High Court (as between it and Courts
established under Article 162 of the Constitution), has the original and exclusive
jurisdiction (without exception) to hear and determine applications for redress of
denial, violation, or infringement of rights and fundamental freedoms in the Bill of
Rights pursuant to Articles 22 and 23 of the Constitution (See Supreme Court
Judgment in The County Assemblies Forum v. the Attorney General &
Others; Pet. No. 22 of 2017, at Paragraph 56).

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 40 of 49
[81] We now come to the specific question whether the ELRC correctly assumed
jurisdiction to determine the constitutional validity of the NSSF Act 2013.
Towards this end, we are persuaded by the appellants’ argument to the effect that
the Court of Appeal adopted a rather restrictive view of the reach of the NSSF Act
2013, in holding that the matter before the ELRC did not emanate from an
“employer-employee” dispute. The extensive provisions of the Act, requiring
employers and employees to contribute specific amounts of money to a Social
Security Fund cannot be said to have nothing to do with an employer-employee
relationship. Even if the matter did not emanate from an employer-employee
dispute within the confines of the ELRC Act, to the extent that it introduces
enhanced and mandatory contributory amounts of employee earnings, the Act has
potential to ignite justiciable grievances from certain cadres of employees. No
doubt these grievances would end up at the ELRC which would likely be called
upon, as it was in this case, to determine the constitutional validity of the same.
But even beyond the employer-employee dispute resolution regime, the NSSF Act
2013, seeks to expansively regulate a wide array of labour relations especially the
social security of the employed cadre when they finally exit formal employment.
Should it then be surprising that an employee should be concerned about what
his/her future would look like after salaried employment?

[82] We must ask, who were the parties to this dispute? From the pleadings on
record, before and after the consolidation of the various petitions, it is clear that
the dispute pitted trade unions, workers associations, employers’ associations and
certain employees, against the Cabinet Secretary for Labour, the NSSF Board of
Trustees, and the Attorney General. The dispute roped in organizations and
authorities as diverse as the Central Organization of Trade Unions (COTU),
Federation of Kenya Employers (FKE), the Retirement Benefits Authority (RBA),
and the Competition Authority. What were the appellants complaining about?
From the proceedings as re-enacted in this Judgment, whether rightly or wrongly,
they complained among others, about the burdensome nature of the new
contributions to the scheme that had been introduced by the NSSF Act 2013. They

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 41 of 49
complained about the enhanced powers of the Cabinet Secretary for Labour over
the management of their Scheme. They complained about the legality of a Fund
premised on an employer and employee relationship. They complained about the
negative effect the new law would have on the existing Collective Bargaining
Agreements (CBAs).

[83] Can it be said that the parties herein are not among the disputants
contemplated under Section 12(2) of the ELRC Act? Even where the Act stipulates
that a complaint, application or suit may be lodged against the Cabinet Secretary
for Labour or any office established by law for that purpose? Or that the nature of
the dispute is not one that falls within the jurisdiction of the ELRC, even where, as
in this case, both employers and employees, trade unions, and workers
associations are decrying what they consider to be the adverse effect of a new law
on their working conditions? We are in agreement with the Court of Appeal to the
effect that this dispute did not arise strictly from an employer-employee
relationship. But what about the other aspects of the dispute? What meaning is to
be ascribed to the phrase “labour relations”?

[84] It has been submitted by the respondents herein, that by dint of our decision
in the Albert Chaurembo Case, the ELRC has no jurisdiction over disputes
arising from the implementation of the NSSF Act 2013, as the same deals with
“Pensions”. But what was the decision in Chaurembo? At Paragraph 145, the
Court pronounced itself as follows:

“On the other hand, section 2 of the Employment and Labour

Relations Court Act defines the term an “an employee” to
mean a person employed for wages or salary and includes
an apprentice and indentured learner. The provision
further defines “employer” to mean any person, public
body, firm, corporation or company who or which has
entered into a contract of service to employ any individual
and includes the agent, foreman, manager or factor of such

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 42 of 49
 person, public body, firm, corporation, or company. Thus,
whereas a dispute may well fall within an employment dispute, the
meaning of a pensioner is nowhere near the meaning of an
employee, neither can the scheme of organisation fit in the meaning of
an employer.” [Emphasis added]

[85] Again, at paragraph 146, the Court stated:

“In our view, once a member leaves the employment of a

Sponsor, by becoming a pensioner, there is no longer a
relationship of employer-employee that exists between such
a pensioner and the sponsor. The relationship that exists in
that case becomes that of trustee and beneficiaries
(members) of a trust and that relationship is governed by
the Retirement Benefits Act, Trustees Act, Cap 167 of the
Laws of Kenya and the general common law on trusts. It is
important to note that nowhere in the Employment and
Labour Relations Court Act is there jurisdiction conferred
on the Employment and Labour Relations Court to resolve
issues between trustees of a pension scheme and members of
the scheme (pensioners).”

[86] It is clear that our decision in Chaurembo, does not oust the jurisdiction of
the ELRC to determine disputes, arising out of the application of the provisions of
the NSSF Act 2013, to employees who are yet to become pensioners. What the
ELRC lacks, is jurisdiction over disputes between pensioners and trustees of a
specific pension scheme as the latter is governed by dedicated statutes and
applicable common law. A pensioner is a person who is no longer in employment.
He cannot therefore seek any redress arising from a dispute between him and the
trustees of a Scheme to which he is a member from the ELRC. The appellants
herein are not pensioners but organizations representing employees who are still
in active employment. Although the NSSF Board of Trustees is a main protagonist

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 43 of 49
in the dispute, it has been enjoined due to the fact that it is the one which will
administer the Scheme of which the appellants are dissatisfied with.

[87] For the avoidance of doubt, and so as to stop the pendulum of jurisdictional
re-jigging that has characterised this case from the beginning, we hereby restate
that the ELRC has jurisdiction to determine the constitutional validity of a statute
in matters employment and labour. Suffice it to say that the statute in question
must be in focus and at the centre of the dispute in question. Having so declared,
there remains the question as to whether the ELRC rightly and judiciously,
exercised its jurisdiction in declaring the NSSF Act 2013, unconstitutional. It is no
longer a question whether the Court had or lacked jurisdiction to so do, but
whether it correctly exercised its jurisdiction in declaring the Act unconstitutional.
Had the Court of Appeal not found to the contrary, it would have answered this
question comprehensively when the appeal came up for hearing before it. But
having found that in declaring the NSSF Act 2013, unconstitutional, the ELRC had
acted without jurisdiction, the Appellate Court could not pronounce itself on the
merits of the trial court’s findings. It had to down its tools and remit the matter to
the court that had jurisdiction, in this case, the High Court. However, instead of
remitting the matter as aforesaid, the Appellate Court went on to determine the
merits of one issue, while leaving the others in abeyance. It is this scenario that
brings us to the next issue for determination.

(iii) Whether the Court of Appeal exercised original jurisdiction

in partially determining the constitutionality of the NSSF
Act, 2013

[88] On the one hand, the appellants contend that by pronouncing itself on the
substantive merits of the case, (the Senate’s concurrence in the enactment of the
NSSF Act), the Court of Appeal assumed original jurisdiction, in effect pre-empting
trial court level determination. They urge that the court committed a fundamental
error. In their opinion, having declared the ELRC proceedings a nullity, there was

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 44 of 49
no Judgment from the trial court upon which the Court of Appeal could make a
determination.

[89] In this regard, they argue that the Court of Appeal ran afoul of the limits of
its appellate jurisdiction under Article 164(3) of the Constitution and Section 3 of
the Appellate Jurisdiction Act. In effect, the appellants conclude that the Court of
Appeal’s determination that the enactment of the impugned Act did not require
the Senate’s concurrence is null and void.

[90] On the other hand, the respondents argue that the Court of Appeal correctly
determined that the NSSF Act 2013, being a legislation on social security and
professional pension plans, is a National Government function under Part 1 of the
Fourth Schedule to the Constitution and consequently, it was not a Bill amenable
to concurrent legislation by the National Assembly and the Senate under Article
110.

[91] The respondents also faulted the trial court for misapplying this Court’s
Advisory in, In the Matter of the Speaker of the Senate; Advisory Opinion
Reference No. 2 of 2013; [2013] eKLR which was clearly distinguishable as it dealt
with a Money Bill. Furthermore, they faulted the trial court for failing to apply the
correct test to ascertain whether the NSSF Act 2013, dealt with functions, powers
and finances of the County Government.

[92] We note that while citing the case of Desai v. Warsaw (1967) EA 351, the
Court of Appeal held that proceedings conducted by a court without jurisdiction,
as well as any award, Judgment or Orders arising therefrom are a nullity.
Notwithstanding its finding, the Appellate Court proceeded to decide on the
concurrence issue. It is instructive to note that in doing so, the Court of Appeal
termed it as a threshold issue. The effect of this determination which went to the
merits of the claim, to the exclusion of the grounds challenging the validity of the
NSSF Act 2013, leaves other factual and constitutional questions of live
controversy that are yet to be determined through the requisite appellate process.
In the case of The Kenya Section of the International Commission of
Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 45 of 49
Jurists v. Attorney General, Crim. Appeal 1 of 2012, [at p. 4, paras.24-26] this
Court stated:

“We recognize that generally, the entry into the sphere of

emerging jurisprudence is located at the High Court which
bears original jurisdiction to interpret the Constitution
and which has an appellate jurisdiction from lower Courts
that address the basic scenarios of fact that spawn issues
of jural character.

The Supreme Court all by itself and without the benefit of

such other Courts would be insufficiently resourced and
empowered to develop rich jurisprudence as provided for.
The law-making chain indeed goes back to the Subordinate
Courts, which constitute the “grassroots” entry-point into
the varied intellectual dimensions of law that will guide the
process of construction of legal ideas.

It follows that the Supreme Court, to best situate itself so as

to address the complexity of the construction of law, must
safeguard the proper jurisdiction of the Courts below it.”

[93] In view of our opinion as expressed in the paragraph above, it is our holding
that where the Court of Appeal determines 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.

(iv) Whether the case should be remitted to the High Court for
determination

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 46 of 49
[94] The appellants urge that in the event that the Court upholds the Court of
Appeal, the case ought to be remitted to the High Court for determination on its
merits. On the other hand, the respondents’ position is that remanding the case
back to the High Court was not an avenue available to the Court of Appeal. They
relied on Section 75 of the Civil Procedure Act to argue that a case can only be
remanded to a court from which it came, that had jurisdiction to determine it in
the first place.

[95] In order to make an informed determination on this issue, it behoves us to

revisit the procedural environment in which this matter was filed, as well as the
chronology of events through the various superior courts. It is common ground
that two of the five petitions were initially filed at the Constitutional and Human
Rights Division of the High Court. When placed before Mumbi Ngugi J. (as she
then was), the learned judge directed that the matter be placed before the
Employment and Labour Relations Court, as its subject matter involved social
security, a matter within the ELRC’s jurisdiction. Thereafter, the question of
jurisdiction arose at the outset, with the Chief Justice empanelling a mixed bench
before the same was declared unconstitutional pursuant to the Karisa Chengo
Case. Subsequently, the Court of Appeal set aside the ELRC Judgment and all
consequential Orders.

[96] 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. In the unique circumstances of this case, the relief that
lends itself to us is Section 22 of the Supreme Court Act 2011, which empowers the
Court to remit proceedings in the following terms:

22. Power to remit proceedings

The Supreme Court may remit proceedings that began
in a court or tribunal to any court that has jurisdiction
to deal with the matter.

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 47 of 49
[97] 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.

(v) Costs

[98] The respondents made submissions on their entitlement to costs. Guided by

this Court’s holding in the case of Jasbir Singh Rai & 3 Others v. Tarlochan
Singh Rai & 4 Others SC Petition No. 4 of 2014; [2014] eKLR, the general rule
is that costs follow the event. However, the Court may in appropriate cases exercise
discretion and decide otherwise, to ensure that the ends of justice are met. In this
instance, we do not think that there is justification to direct the respondents to bear
the costs of this litigation. As it is, this case is yet to be substantively determined
by the Court of Appeal, with the possibility that a further appeal may still lie to this
Court. Consequently, the Order that commends itself to us is to direct each party
to bear its own costs.

F. ORDERS

[99] We make the following consequential Orders:

(i) The consolidated appeal is hereby allowed on the narrow

ground that the ELRC had jurisdiction to determine the
constitutional validity of the NSSF Act 2013;

(ii) The case is hereby remitted to the Court of Appeal to

determine the substantive merits of the ELRC Judgment
on an urgent basis;

(iii) Each Party shall bear its own Costs; and

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 48 of 49
 (iv) We hereby direct that the sum of Kshs. 6000/- deposited
as security for costs in each appeal herein be refunded to
the appellants.

It is so Ordered.

DATED and DELIVERED at NAIROBI this 21st Day of February 2024.

……………………..…………..........................

M. K. KOOME
CHIEF JUSTICE &
PRESIDENT OF THE SUPREME COURT

……………………..…………............................ …………………………….……………………………

P. M. MWILU M. K. IBRAHIM
DEPUTY CHIEF JUSTICE & JUSTICE OF THE SUPREME COURT
VICE-PRESIDENT OF
THE SUPREME COURT

……………………..…………............................. ………………….………………………………………

S. C. WANJALA NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

………………………………….…………….……….. ………………………………………………………….

I. LENAOLA W. OUKO
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
I certify that this is a true copy of the original

REGISTRAR,
SUPREME COURT OF KENYA

Petition No. E004 of 2023 as Consolidated with Petition No. E002 of 2023 Page 49 of 49