Salaries and Remuneration Commission v Kenya Union Commercial Food and Allied Workers & 2 others (Civil Appeal E489 of 2020) [2025] KECA 402 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the Salaries and Remuneration Commission controls salaries at state corporations like NSSF, because their employees are public officers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Commission is authorized to inquire into and advise on the salaries and remuneration of officers of NSSF subject to the directives set out in the Circular dated July 4, 2012
- 2.Whether NSSF is a State corporation and therefore a public office within the meaning of the Constitution
- 3.Whether NSSF employs public officers whose salaries are eligible for oversight by the Commission
Key legal issues
#Whether NSSF is a State corporation
NSSF is a State corporation, being a creation of statute established by an Act of Parliament, funded through public funds, and liable to audit by the Auditor-General.
The court applied the three factors it distilled from the State Corporations Act and the Public Audit Act 2003: establishment by or under an Act of Parliament, funding through public funds, and mandatory audit by the Auditor-General. Section 3 of the National Social Security Fund Act establishes NSSF, its funds under section 49 comprise contributions, fees and other monies, and section 51 subjects it to audit by the Auditor-General pursuant to article 229 of the Constitution.
Whether NSSF is a public office within article 260 of the Constitution
NSSF is a public office because its operations, including staff salaries, are funded from public funds set aside through an Act of Parliament, satisfying article 260 read with article 206.
The court held the trial judge's reading of article 260 was unduly narrow. Reading articles 206 and 260 together, monies 'provided by Parliament' include monies authorised by an Act of Parliament, such as the administration funds under sections 50 and 51 of the NSSF Act, and funds retained under article 206(1)(b). The court adopted the persuasive High Court decision in KUDHEHIA and this Court's decision in SRC v NHIF.
Whether NSSF employees are public officers subject to the Commission
NSSF employees whose remuneration is derived from public funds are public officers subject to the Commission's jurisdiction under article 230(4)(b) and section 11 of the SRC Act.
Having found NSSF to be a public office, the court reasoned that any person holding an office in NSSF is a public officer under article 260. It adopted this Court's reasoning in SRC v NHIF that officers and persons serving in state corporations are public officers, and that their remuneration is payable either from money provided by Parliament through the national budget or from funds retained under article 206(1)(b).
Standard of review on a first appeal
A first appellate court must reappraise the evidence and draw its own conclusions before deciding whether the trial court's conclusions should stand.
Relying on rule 31(1)(a) of the Court of Appeal Rules, Peters v Sunday Post and Abok James Odera, the court restated its duty to re-evaluate, re-assess and re-analyse the record and to give reasons either way. The court found the Employment and Labour Relations Court misapprehended the Constitution and the law, justifying interference.
Legal principles established
#- Commercial state corporations whose operations are funded from public funds set aside by or under an Act of Parliament fall within the mandate of the Salaries and Remuneration Commission, and their employees are public officers whose remuneration is subject to the Commission's oversight under article 230(4)(b) of the Constitution and section 11 of the SRC Act.
- The phrase 'money provided by Parliament' in article 260 of the Constitution encompasses monies made available to a state entity through an Act of Parliament, whether by Appropriation Act or by specific legislation, and is not confined to direct payments out of the Consolidated Fund.
- Constitutional provisions must be read harmoniously; no single provision is to be segregated and construed alone.
Court orders
#- 1.The Judgment of the Employment and Labour Relations Court declaring the Commission's Circular dated July 4, 2012 inapplicable to the 1st and 3rd respondents is set aside in its entirety
- 2.The 1st respondent's petition dated May 23, 2014 is dismissed with costs to the appellant
- 3.The appellant shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction (rule 31(1)(a) of the Court of Appeal Rules) from the Employment and Labour Relations Court
Relief refused
#The 1st respondent's petition, including declarations of violation of article 41 rights and prayer for compensation
The appeal succeeded and the trial judgment was set aside; the petition was dismissed with costs
Costs
Petition dismissed with costs to the appellant; the appellant shall also have the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In sum, the appeal is merited and is allowed, with the result that the Judgment of the Employment and Labour Relations Court that declared the Salaries and Remunerations Commission’s Circular dated July 4, 2012 inapplicable to the 1st and 3rd respondent, be and is hereby set aside, in its entirety.
The respondent’s petition dated May 23, 2014 is accordingly dismissed with costs to the appellant. The appellant shall also have the costs of this appeal.
we find that the 1st respondent’s members employed by NSSF and whose remuneration and emoluments are derived from such public funds are public oficers whose salaries and emoluments are subject to the jurisdiction of the Commission under article 230(4)(b) of the Constitution and section 11 of the Salaries and Remunerations Commission Act.
the phrase“…monies provided by Parliament.” simply boils down to Parliament’s role in enacting legislation allowing public funds to be made available to a state entity or for a designated purpose.
we find that NSSF clearly falls within the category of a state corporation as defined under the State Corporation Act.
we find the learned Judge’s interpretation of article 260 to be narrow and tantamount to a derogation from the principles governing interpretation of the Constitution.
Issues in the judgment
#The judgment reproduces excerpts of the trial court's judgment with internal numbering jumping from paragraph 21 to paragraphs 32-33, creating a confusing textual sequence in the quoted material.
The record omits the 2nd respondent's identity; the parties list only describes the 1st and 3rd respondents by name, leaving the 2nd respondent unnamed.
The case number of the appeal is not stated in the judgment text provided; only the delivery date and coram appear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salaries and Remuneration Commission v Kenya Union Commercial Food and Allied Workers & 2 others (Civil Appeal E489 of 2020) [2025] KECA 402 (KLR)", Case Analysis (2025). Civil Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/402/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.