• The judges agreed with the state submissions that the application was delayed
• They questioned why LSK wanted to be admitted at this tail end of the litigation
Image: FILE
The Law Society of Kenya has lost a bid to be enjoined as amicus curie in the case at the apex court seeking to stop the government from raising NSSF contributions.
The Supreme Court on Friday dismissed an application by the LSK seeking to be amicus so they could help the court to make a decision on the issue.
In the case, more than 6,000 pensioners moved to Supreme Court to appeal the appellate court’s decision that overturned the ruling of the Employment and Labour Relations Court, which had declared the NSSF Act 2013 unconstitutional.
The bone of contention before the Supreme Court now is whether ELRC had jurisdiction to determine the constitutionality of the said Act, and LSK wanted to give an amicus brief on that.
However, the bench, led by Chief Justice Martha Koome and Justices Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala and William Ouko, ruled that they were not convinced that the application by LSK was brought within time.
“For those reasons, we find that LSK has not met the conditions which would warrant its admission as amicus curiae in the consolidated appeal,” the court ruled.
The judges agreed with the state submissions that the application was delayed and questioned why LSK wanted to be admitted at this tail end of the litigation.
The court also noted that from their submissions to court, the legal body had taken sides instead of being neutral.
“What is more, LSK has not demonstrated any expertise in the issues it seeks to advance and has taken sides by advancing the appellants’ position,” the court ruled.
It also ruled that the arguments proposed by LSK to be included in their brief to court have largely been addressed in one way or another by the parties to the consolidated appeal through their pleadings and submissions.
“As such, the proposed amicus brief does not introduce novel aspects of the legal issue in question,” the court ruled.
Labour CS Florence Bore, through her lawyers, had opposed LSK's application, arguing that they had delayed in filing it.
Bore alongside the AG and the Competition Authority had argued that the dispute has been pending before the superior courts below for more than 10 years, yet LSK did not seek to be admitted before those courts.
The NSSF had also opposed the application, arguing that the legal issues LSK intended to raise had been exhaustively addressed by the parties to the consolidated appeal and had not met the threshold for admission as amicus curiae.
The consolidated appeal by the pensioners relates mainly to the parameters of the ELRC’s vis-à-vis the High Court’s jurisdiction as far as the determination of the constitutionality of NSSF Act, 2013 is concerned.
The petitioners want the Supreme Court to determine whether ELRC has jurisdiction to entertain a dispute that does not arise from an employer-employee dispute.
Further, whether the determination of the constitutionality of the NSSF Act, 2013 was the mandate of the High Court under Article 165 (3) (d) (i) or the ELRC under Article 162 (2) (a) of the Constitution.