Supreme court annuls CoA decision declaring NSSF Act unconstitutional

Details: East Africa; 21 February 2024; 563

The Supreme Court has annulled a Court of Appeal decision declaring the National Social Security Fund (NSSF) Act unconstitutional citing jurisdiction infringement.

In a decision rendered on Wednesday, the country’s highest court determined that a consolidated petition contesting the statute fell within the jurisdiction of the Employment and Labour Relations Court (ELRC) and that the Court of Appeal wrongfully assumed jurisdiction on the matter.

“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,” a full bench of the court led by Chief Justice Martha Koome determined.

The Supreme Court further argued that the Appellate Court, having determined the question of contested jurisdiction between the Constitutional Court and ELRC, appeal judges ought to have proceeded to remit the matter to the right court for determination.

“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,” the 7-bench court asserted.

Petitioners in the suit, who included the Kenya Tea Growers Association, had contested the coming into force of the Act citing insufficient public participation.

The Constitutional Court referred two petitions to ELRC which subsequently consolidated a petition in Nakuru and Nairobi for hearing.

The Supreme Court noted that then ELRC Principal Judge Juma Nderi agreed that both judges of the Constitutional Division and those of the Labour Division could hear the matter prompting the decision by the Chief Justice to empanel a mixed bench.

The Court of Appeal declared the establishment of a mixed bench unconstitutional and later annulled a verdict by an ELRC bench on grounds the court lacked jurisdiction.

In its decision on Wednesday, Supreme Court judges however faulted the Appeal Court’s failure to remit the matter to the Constitutional Division of the High Court which it determined as the appropriate forum for the case.

The apex court reinstated the verdict of the ELRC and referred the matter to the Court of Appeal to determine the petition based on the findings of the Employment Court. By Sharon Resian, Capital News