CASE BRIEF

IN THE MATTER OF PETITION, NO 38 OF 2014, CONSOLIDATED WITH

PETITION 34, 35, 49 AND 50 OF 2014 AT THE ELC COURT IN NAIROBI.
Background Facts
The consolidated petition is against the National Social Security Fund (NSSF) board of
trustees, the Cabinet Secretary for Labor, Social Security and Service, the Retirement
Benefits Authority, (RBA), the Competition Authority, and the Attorney General
respectively. The Central Organization of Trade Unions (COTU) and the Federation of
Kenya Employers (FKE) are listed as interested parties. The gravamen of the petitioner’s
claim is that the National Social Security Fund Act No. 45 of 2013 (NSSF Act) is
unconstitutional in its entirety. The petitioners seek orders from the court invalidating
several sections of the impugned act and seeks to be awarded costs of the petition. At the
outset, the petitioners claim that there wasn’t sufficient public participation prior to the
enactment of the impugned act. The petitioners also claim that members with alternative
pension scheme arrangements should not be made to register with NSSF mandatorily.
They also claim that there is a sense of discrimination since such registration has been
made a precondition for access to public services. They also allege that discrimination is
clear from the fact that NSSF is made compulsory only for employers and employees and
not the entire population of Kenya’s citizenry. The petitioners cite article 21(2) to show
that the government is mandated to ensure progressive realization of the rights listed
under article 43 of the Constitution. The petitioners also question whether NSSF, being a
retirement benefit scheme for all intends and purposes is and /or should be regulated by
the RBA. The petitioners also question the fact that the NSSF bill that preceded the NSSF
Act was not debated in senate. They contend that it should have been debated in the
senate since the operation of the act touches on county finances pursuant to articles 110
& 205 of the Constitution. They equally make the case that the Act only lists the
National Government as an employer, yet the same act requires that County Governments
make contributions toward NSSF for its employees.

The Issues for Determination

 1. Whether there was sufficient public participation as envisaged under Article 10
of the Constitution of Kenya prior to the enactment of the NSSF Act No.45 of
2013.
The petitioners make the case that the National Assembly did not conduct any and/or
sufficient public participation to create awareness and consensus with the members of the
public prior to enactment of the impugned act.
The respondents argue that there was sufficient public participation in the process of the
enactment of the act. The court observed that in the case of Kenya Human Rights
Commission General v Attorney General1, it was stated that where the petitioner has
attacked a legislative process on the grounds that the law-making process did not meet
the constitutional standard of public participation, the onus was on the respondents to
show that there was public participation that met the constitutional standard.
In the present case, the respondents have provided a list of attendees of four separate
meetings it held between 8th March and 17th July 2012. It met stakeholders at KICC,
COTU members at Panafric hotel, FKE Stakeholders at Serena and stakeholders at the
Great Rift Valley Lodge in Naivasha. The total number of stakeholders that the
respondents in this period totals to 4,500.
The petitioners do not dispute that they attended the meetings adduced by the respondent.
They clearly disagree with many provisions of the impugned act, but they did not
expressly state that they did not attend the meetings. The petitioners bear the initial
burden of proof to show that they were not involved in the public participation process,
and it is only then that the burden of proof shifts to the respondents to show that the
public participation was reasonable.
In the case of Matatiele Municipality and Others v The President of the Republic of
South Africa and 2 others2, the court stated that the nature of the legislation and its effect
on the provinces undoubtedly plays a role in determining the degree of facilitation that is
reasonable and the mechanisms that are most appropriate to achieve public involvement.
In the present matter, the argument by the petitioners that members of the informal sector
were not involved in the public participation falls because those members have not
approached the court to object to the process of enactment of the bill. The petitioners
herein are members of the formal sector and reasonable public participation was
conducted to appraise them of the bill that preceded the NSSF Act 2013.

2. Whether the NSSF No. 45 of 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 Article 205 (1) & 110 of the Constitution.
The petitioners made the case that the new act has provisions that touch on financial
mattes involving the county government. As a result, it is the petitioner’s view that the
bill should have been sent to the senate for consideration after the approval by the
1
[2018] eKLR
2
(CCT73/05A) [2006] ZACC12
National Assembly and before the presidential assent. Further, they submitted that the bill
should have been considered by the commission for revenue allocation (CRA). They
conclude that the failure to have the bill considered by the senate and the CRA makes the
NSSF Act null and void ab initio.
The petitioners offer two reasons why the bill is affected by article 110 (1) of the
constitution.
First, they submit that section 20 of the New Act defines an employer as among other
definitions, the Government. It is not in contest that the Act does not specify County
Governments.
Second, Petition No. 35 of 2014 filed by Union of employees of county governments who
are equally affected by the provisions of the NSSF Act. The Act enjoins county
governments to make financial contributions towards the fund at a rate of 6% of each
employee’s salary in addition to any contribution made by the employee. Further, county
governments can only pay their contributions towards NSSF by charging the County
Revenue Fund established under Article 207 thus making such a financial matter. County
governments have pension schemes or are in the process of establishing them. Various
provisions of the NSSF Act such as Section 20 requiring mandatory contributions to the
fund will inevitably affect this arrangement. In addition, penalties for non-payment or
late payment under section 27(1) of the New Act will necessarily be paid from the fund
where county governments are concerned. In any event, salaries for all county
government staff comes from the county government budgets which must consider the
NSSF contributions under the New Act.
The court was guided by the Advisory opinion rendered in Supreme Court Advisory
Opinion No. 2 of 2013 where the court held that,” The extent of the legislative role of the
Senate can only be fully appreciated if the meaning of the phrase ‘concerning counties’ is
examined. Article 110 of the Constitution defines bills concerning counties as being bills
which contain provisions that affect the functions and powers of the county governments
as set out in the Fourth Schedule; bills which relate to the election of members of the
county assembly or county executive; and bills referred to in Chapter Twelve as affecting
finances of the county governments. This is a very broad definition which creates room
for the Senate to participate in the passing of bills in the exclusive functional areas of the
national government, for as long as it can be shown that such bills have provisions
affecting the functional areas of the county governments. For instance, it may be argued
that although security and policing are national functions, how security and policing
services are provided affects how county governments discharge their agricultural
functions. As such, a bill on security and policing would be a bill concerning counties….
With a good Speaker, the Senate should be able to find something that affects the
functions of the counties in almost every bill that comes to Parliament, making it a bill
that must be considered and passed by both Houses.”
The court here was referring to The Court’s observation in Re the Matter of the Interim
Independent Electoral Commission is borne out in an official publication, Final Report
of the Task Force on Devolved Government Vol. 1: A Report on the Implementation of
Devolved Government in Kenya at page 18.
The court held that it was clear that from the binding decision of the supreme court that
the NSSF Act touched on matters where the National and County Governments have
concurrent jurisdiction including Finance, budget and planning and public service
notwithstanding the fact that the Act does not mention County Governments expressly. It
imposes mandatory and optional pension schemes on public officers in both National and
County Governments. The court declared that the failure by the National Assembly to
involve the senate in enacting the act was fatal. The court found that the NSSF Act No.
45 of 2013 is void ab initio.
3. Whether the NSSF Act No. 45 of 2013 violates the Constitutional rights of the
Petitioner’s members.
The petitioners have challenged various petitions as being unconstitutional, particularly
sections 13, 17 (6) (b), 18(2), 19(2) 20, 21, 27, 35(4), 49(2) and 71.
The court began by taking the approach that the statute should be interpreted purposively,
as it avoids the shortcomings of the literal approach, namely absurd interpretations or
those that appear to run counter to the purpose and functioning of the legislative regime,
with reliance on the Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others case.
The court was thorough in taking the position that the interpretation that is given to any
statute should promote the spirit, purport, and objects of the constitution. The notion that
a statute is unconstitutional must be justified through a constitutional lens. The effect of a
declaration that a statute is unconstitutional renders the statute inapplicable as held in
Norton v Shelby County.
The respondent’s case is anchored on Article 43 of the C.o.K, 2010, which creates a duty
to provide social security to its citizens. This duty is also provided for in General
Comment No. 9, Article 9 of ICESR. Article 43 (5) creates a duty for the state to avail
resources towards the enjoyment of the right to social security. The resources to be
availed should emanate from the state. For the fund to remove such duty from the state to
the registered members is an overreach on its statutory mandate.
Regarding Section 20 (2), the petitioner’s case is that it violates Article 35 of the
Constitution (Access to Information) as it alludes only to employees paid on monthly
basis and leaves out a huge group such as casual laborers, piece rate workers and journey
workers among others while operators of existing pension schemes are not exempted
from the application of section 21 of the impugned act.
The court found that pursuant to section 24(2) of the NSSF Act, 2013, every registered
member is required to open and have an individual account and allowed access
therefrom. Such an account is to be credited all contributions made to the pension fund by
and in respect of each member of the pension fund. Further, section 24(7) grants access
rights both electronically and manually. Therefore, the court found that the constitutional
right to access of information is not negatively affected.
Regarding Section 19(2), the petition is that the impugned section predicates access to
public services upon membership of NSSF which violates articles 21 (1), 47(1) and
232(1) of the constitution on the right to equal protection and benefit of the law, on fair
administrative action and on the values and principles of the public service respectively.
The respondent’s case in this regard is that section 19 of the NSSF Act provisions is
meant to minimize evasion of NSSF contributions.
The Court relied on the test established in Kenya Human Rights Commission v
Communications Authority of Kenya & 4 Others 3 to establish whether in limiting access
to public services, thereby denying citizenry a right, the Act was justified. The test
provides that two criteria must be satisfied:
a) The importance of the objective of the law- the purpose for the law must of
sufficient importance to warrant the limit of the right in question. The standard
must be high to lock out trivialities.
b) The means chosen for the law must be reasonable and reasonably justified.
This limb creates a proportionality test which is three pronged.
i. It must be carefully designed, i.e., it must be rationally connected to the
objective.
ii. It should impair the right in question as little as possible.
iii. The effect of the measures proposed by the enacted law must be
proportional to the objective that, pursuant to (1) hereinabove, is of
“sufficient importance”

The court was not satisfied that the section met this test and therefore declared it
unconstitutional.
Regarding Section 49 (2) and 71, the petition is that these sections as read with section 38
of the RBA Act violate the petitioner’s rights as provided for under Article 27(1), 30&
46(1)(a) of the Constitution by restricting the investment of pension scheme money to
government securities and infrastructure bonds. The court found that these provisions are
not in conflict and that funds which are not for the time being required to be applied for
the purposes of the fund should be invested in movement securities or infrastructure
bonds issued by public institutions as these are public funds for the benefits of the
members.
Regarding Sections 18(2) and 72, the petition is that on one hand the Act provides that
the fund shall retain and continue to operate the old provident fund previously operated
by the now repealed “Old” NSSF Act exclusively for purposes specified under the 2 nd
schedule.
Section 72 of the impugned act repeals the old act save for sections 9, 14, 16, 19 as et out
in clause 2(f) of the second schedule. That to repeal the old act before resolving the issue
of liabilities and assets under the old provident fund infringes on the constitutional rights
of the beneficiaries.
The court found that the solution is within the provision of Section 18(3) of the new
NSSF Act as read with section 51. The court concluded that the members of the old
provident fund are well insulated.
Regarding Section 17, the petition is that the act criminalizes any refusal and/or neglect
to answer a question or to furnish any information or documents when required to do so,
without giving limits such as criminal intent of the person or willful disobedience
3
[2018] eKLR
contrary to article 50 of the constitution. The court’s finding was that the appointed
compliance officer is bound by the rules of natural justice in the execution of such
mandate and is required to only sanction conduct that is found to be refusal and or neglect
to furnish information by willful delays or obstruction in the exercise of any power under
this section.
Regarding section 13, which concerns itself with remuneration to be paid to the board
and committee members, it stipulates that such payment is subject to the approval of the
CS. The court found that the mandate of the SRC is codified under Article 230(4) of the
constitution as read together with Section 11 of the Salaries and Remuneration
Commission Act. Under section 11 of the SRC Act, the SRC is conferred with additional
functions to those set out under 230(4) of the constitution. This position received backing
in Teachers Service Commission v Kenya National Union of Teachers & 3 others.
The mandate to set and determine remuneration including allowances payable is vested in
the Salaries and Remuneration Commission by article 230(4) (a)
In Kudhehia Workers v SRC4, the court held that state corporations are creatures of
national government and so its officers are so regulated.
The court held that section 13 is unconstitutional since it vests powers/ functions to
approve remuneration payable to board and committee members to the Cabinet Secretary.
The funds drawn for such payment comprise public funds and fall under the ambit of the
SRC.
Regarding section 27, the petition is that the impugned section is unconstitutional for
charging of interest on late payment but there is no provision that such interest should be
credited to a member’s account. However, the court concluded that such a notion is
incorrect in the context of section 24(2)(d) and (4) stated in mandatory terms that all
interests charged should be credited into the individual member account.
Regarding section 27, the petition is this section is unconstitutional for charging of
interest on late payment but there is no provision that such interest should be credited to a
member’s account. However, the court found that such notion is incorrect in the context
of Section 24(2) (d) and (4) stated in mandatory terms that all interests charged should be
credited into the individual member account.
Regarding Section 35 (4), the petition is that the impugned section is unconstitutional
since it gives the board absolute power to decline to pay or vary payment to a nominated
beneficiary, which amounts to usurping the role of the courts. Also, the petition contends
that giving the board sole discretion to make arrangements with credit institutions on
loans and advances to staff has the danger of allowing the board to act inconsistently with
regard to fairness, ignoring the provisions of Articles 201 and 227 (1) of the constitution.
The court found that the challenged provisions in their nature are self-enforcing and do
not relate to articles 201 and 227.
Regarding Section 37(1), the petition is that it pegs payment of survivors’ benefits to 36
months’ contribution thus denying the survivors’ their right to property as the state will
appropriate funds contributed by petitioners and their members over periods less than 36
months without justification. The court observed that this payment arises in the
4
[2014] eKLR
unfortunate demise of the contributory member before pensionable age and not less than
36 payments had been made at the time of his demise. It further held that it was incorrect
to claim denial since the benefits payable under section 37(1) results from the total
aggregate equal in value to the member’s credit. Further that section 37(60 makes
sufficient and adequate provisions towards benefit of a survivor’s family members.
Regarding section 20, the petitioners had alleged that to the extent that the NSSF Act
2013 makes it mandatory to contribute premiums, it violated the rights of the members to
free choice. The court held that there was no reason for members who are already
existing members of an established pension scheme to make such mandatory payments.
The court therefore found this section unconstitutional with reference to CIS V Directors,
Crawford International School & 3 Others5.
There were serious allegations by the petitioners regarding discrimination arising from
the fact the act only targets employers and employees. The NSSF Act was accused of
being discriminative since did not address the underprivileged. They also submitted that
the fund did not have an opt-out option despite there being superior pension schemes and
that one would have to first have to register as a member before making an application to
opt out under tier II.
The court held that there was indication of preferential treatment but that did not
necessarily amount to discrimination, referencing Mohammed AbdubaDida v Debate
Media Limited & Another.

4. Whether the NSSF Act No. 45 of 2013 is in conflict with the Provisions of the
Competition Act.
Article 10 (1) (b) and (c) of the constitution outlines the national principles and values
that parliament is obliged to follow when making policy decisions and enacting
legislation. The court observed that parliament should have considered the constitutional
provisions before the enactment of the impugned act. Among the objectives of the
Competition act is to consumers of services and products. The competition act defines
competition as competition in a market in Kenya and refers to the process whereby two
or more persons—
(i) supply or attempt to supply to; or
(ii) acquire or attempt to acquire from,
the people in that market the same or substitutable goods or services.
In the case of getting into a pension scheme, the court held that the impugned act favors
NSSF over other pension providers as social security providers in the entire country. The
court further stated that the implementation of this act would kill or stifle other pension
and social security schemes across the country. It is therefore the court’s finding that the
New Act conflicts with the competition authority act.
5. Who Should Pay Costs?
5
[2020] eKLR
The court held that both parties should bear their own costs.
ORDERS
A. That the 1 and 2 Respondents are restrained from applying the NSSF Act No. 45
st nd

of 2013 to the petitioner’s members or any other employees who have adequate
alternative social security or pension schemes unless they opt in.
B. An Order of Injunction prohibiting and restraining the respondents by themselves,
their servants, agents, assigns or any other person claiming through them
otherwise from demanding, compelling, and /or requiring mandatory registration,
enrollment or listing of any employer or employee whether registered as a
member, or any retirement benefit scheme or not to register, enroll or list and
contribute their earnings or any part thereof in terms of the NSSF Act No. 45 of
2013.

Delivered by Judges Mathews N. Nduma, Hellen Wasilwa and Monica Mbaru on

19th September 2022 at the Employment and Labor Relations Court in Nairobi.

Prepared By:

Salaton Lemayian.
Legal Intern.