Editor's Review

"The case is hereby remitted to the Court of Appeal to determine the substantive merits of the ELRC Judgment on an urgent basis." 

The Supreme Court has overturned the Court of Appeal’s decision that declared the NSSF Act 2013 constitutional. 

In a ruling delivered on Wednesday, February 21 by a seven-judge bench led by Chief Justice Martha Koome, the Supreme Court noted that the appellate court was wrong to nullify the Employment and Labour Relations Court (ELRC) decision on the NSFF Act on grounds that it lacked jurisdiction.

The apex court stated that ELRC has jurisdiction to determine the constitutional validity of a statute in matters concerning employment and labor relations.

“Notwithstanding the fact that this dispute did not emanate from an employee-employer relationship to the extent that the NSSF Act 2013, introduces enhanced and mandatory contributory amounts of employees’ earnings, the new law attracts justiciable grievances from certain cadres of employees and involves major players in the employment and labor relations sector, these factors bring the dispute within the purview of the ELRC,” the Supreme court ruled.

“Consequently, the ELRC has jurisdiction to determine the constitutional validity of a statute in matters concerning employment and labor relations under Article 162(2)(a) of the Constitution.”

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File image of the Supreme Court judges. 

The apex court ordered the case to be heard afresh by the Court of Appeal to determine the substantive merits of the ELRC Judgment on a priority basis.

“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.

"The case is hereby remitted to the Court of Appeal to determine the substantive merits of the ELRC Judgment on an urgent basis, and each party shall bear its own costs,” the Supreme Court ruled.

ELRC had ruled that the NSSF Act had implications on County Governments’ finances, and therefore ought to have been tabled before the Senate, and ultimately, the trial court declared the Act unconstitutional.

The Court of Appeal set aside ELRC’s judgment and all consequential orders because the ELRC lacked jurisdiction to determine the constitutional validity of the NSSF Act 2013.

The Appellate Court mentioned that the issue fell within the jurisdiction of the High Court under Article 165(3)(d)(i) of the Constitution.