- LSK wanted to be enjoined as a ‘friend of the court’ (Amicus curiae)
- But the Apex court said LSK’s participation in the matter will not be of any assistance in the resolution of the dispute.
The Supreme Court has disallowed an application by the Law Society of Kenya (LSK) that sought to participate in a case in which pensioners are seeking to stop the state from effecting an increase in the National Social Security Fund (NSSF) contributions.
LSK wanted to be enjoined as a ‘friend of the court’ (Amicus curiae)
But the Apex court said LSK’s participation in the matter will not be of any assistance in the resolution of the dispute.
"Furthermore, the legal issues it intends to raise have been exhaustively addressed by the parties to the consolidated appeal; and in any event, LSK has not met the threshold for Admission as amicus curiae," the court ruled.
In the case, the County Pensioners Association and others moved to the Supreme Court following a decision by the Court of Appeal that set the motion for the NSSF to increase workers' monthly deductions from March 9, 2023.
The NSSF act increases monthly contributions to the NSSF by 98 percent (that is from Sh200 to Sh2160). The act provides for further increases in subsequent years.
The association represents 6000 retirees who were contributors to the local authorities' pensions trust.
The association says implementation of the Act poses a serious threat of monopoly and it will impoverish the entire pensions industry.
The enactment of the act triggered an avalanche of constitutional petitions before the high court and the Employment and Labour Relations Court.
As a result, 5 petitions were filed challenging the constitutionality of the act.
The petitions filed in different courts in Kenya were consolidated and heard by the ELRC Court in Nairobi.
The said court in September last year, termed the Act as unconstitutional to the extent that the national assembly excluded the Senate in the enactment.
The ELRC judges in their decision also said a section of the act permitted CS Labour to usurp the constitutional mandate of the Salaries and Remuneration Commission (SRC).
The judges said a provision in the Act violated the right to free choice by forcing persons who were in superior pension schemes to join the NSSF.
Aggrieved with the decision, the NSSF Board of Trustees and the Attorney General appealed.
And on February 3, the appellate court set aside the ELRC decision.
The Court of Appeal held that ELRC lacked jurisdiction to determine the consolidated petitions.
The appellate court also found that the Employment and Labour Relations Court had no powers to determine the case and that the High Court should have handled the dispute.
The judges said that the Labour Relations Court can only hear matters where constitutional issues are raised in a context of an employer-employee dispute.