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Court of AppealDismissedCourt of Appeal Appeal (Criminal/Judicial Review) - judgment as delivered

National Social Security Fund v Kiprono & 2 others (Civil Appeal 613 of 2019) [2026] KECA 376 (KLR)

Court of Appeal of Kenya
27 February 2026
4,185 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that NSSF cannot prosecute over unpaid contributions decades late when the governing law sets strict time limits.

What this practically means

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Executive summary

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The National Social Security Fund appealed against a High Court judgment (Chepkwony, J, 29th March 2019) that quashed by certiorari and prohibited by prohibition criminal charges it had preferred against William Kibet Kiprono and Kenya Wildlife Service for failure to pay monthly contributions contrary to Section 36A of the repealed NSSF Act. The charges related to alleged defaults between May 1990 and April 1991 but were only instituted in November 2014, after Kiprono had been appointed a director of KWS in 2012. The Court of Appeal framed the overarching question as whether Kiprono and KWS had established grounds for certiorari and prohibition, that is, whether the prosecution amounted to an abuse of the court process. The Court held that NSSF's statutory prosecutorial power under Sections 36(a) and 39 had to be exercised judiciously and not unreasonably, in bad faith, or for an ulterior purpose, and that the burden lay on the respondents to prove abuse. The Court accepted that the Judge properly considered the statutory time bar in Section 37(1), under which proceedings must be brought within three months of the Minister becoming aware of sufficient evidence or twelve months of the offence, whichever is later. NSSF failed to demonstrate compliance with that period, and charges filed roughly 23 years after the alleged offences could not stand. The Court also held that the High Court was justified in undertaking a measure of merit review, following the Supreme Court's decision in Saisi v Director of Public Prosecutions. Acknowledging that the power to quash criminal proceedings must be exercised sparingly and in the rarest of rare cases, the Court found this an exceptional case and dismissed the appeal with costs to the 1st and 2nd respondents, affirming the High Court judgment in full.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether Kiprono and KWS established, to the required standard, a basis for the grant of the orders of certiorari and prohibition
  2. 2.Whether the prosecution of Kiprono and KWS by NSSF amounted to an abuse of the process of the court
  3. 3.Whether the learned Judge usurped the mandate of the criminal court in exonerating Kiprono and KWS from criminal liability
  4. 4.Whether the High Court had jurisdiction to undertake a merit review of the decision to prosecute
  5. 5.Whether KWS was exempted from making contributions to the NSSF for its permanent and pensionable employees
  6. 6.Whether the existence of a staff superannuation scheme precluded the need for KWS to contribute to NSSF
  7. 7.Whether NSSF's demands for outstanding contributions were time barred under Section 37 of the NSSF Act

Key legal issues

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01

Whether the prosecution was time barred under Section 37(1) of the repealed NSSF Act

Holding

Yes. NSSF bore the burden of showing the prosecution was instituted within the statutory period (three months from the Minister becoming aware of sufficient evidence, or twelve months from commission of the offence, whichever last expires) and failed to do so; charges filed approximately 23 years after the alleged offences did not meet the statutory requirement.

Reasoning

Although there is generally no limitation period for criminal charges, Section 37(1) of the NSSF Act made specific provision for offences under the Act. The Judge correctly took the point in assessing abuse of process. NSSF produced no evidence of the Minister's opinion preceding the prosecution. The court could not fault the Judge for terminating a prosecution commenced 23 years after the alleged offences of 1990-1991.

02

Whether the High Court, in judicial review, could delve into the merits of the decision to prosecute

Holding

The High Court was justified in undertaking a measure of merit review, following the Supreme Court decision in Saisi v Director of Public Prosecutions, in the context of determining whether the prosecution amounted to an abuse of the court process.

Reasoning

The appellants argued, relying on Dande, that an Order 53 application confines the court to a traditional process-focused review. The court held that where the question is whether prosecution constitutes an abuse of process, some examination of merits is necessary and proper, and the Supreme Court in Saisi supports that approach.

p. 8
03

Whether NSSF's prosecution amounted to an abuse of the court process

Holding

Yes. Between the time bar under Section 37(1) and the inability of Kiprono, who was not a director at the material time, to bear criminal responsibility, the respondents established grounds for certiorari and prohibition.

Reasoning

NSSF's statutory power to prosecute under Sections 36(a) and 39 had to be exercised judiciously and not oppressively or in bad faith. The respondents discharged their evidential burden: Kiprono was appointed a director only in 2012, long after the alleged offences, and the charges were grossly out of time under the statute's specific limitation provision.

p. 5
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The limits of the power to quash criminal proceedings

Holding

The power must be exercised sparingly, with circumspection, and only in the rarest of rare cases, endorsing the Supreme Court of India's guidance in State of Maharashtra v Arun Gulab as adopted in Lalchand Fulchand Shah v Investments & Mortgages Bank Limited.

Reasoning

The court acknowledged that quashing criminal proceedings is an extraordinary power that cannot be exercised arbitrarily or at an uncalled-for stage. Here, however, the patent statutory time bar and the absence of any basis for Kiprono's personal criminal liability brought the case within the exceptional category justifying intervention.

p. 8

Legal principles established

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  • Where a statute prescribes a specific limitation period for prosecution of offences under it, the prosecuting authority bears the burden of demonstrating that the prosecution was instituted within that period; failure to do so justifies judicial intervention
  • A prosecutorial body may not exercise its powers of prosecution unreasonably, in bad faith, or to achieve an ulterior motive; the court retains inherent power to stop a prosecution that amounts to an abuse of process
  • In judicial review proceedings challenging a decision to prosecute, a measure of merit review is justified where necessary to determine whether the prosecution amounts to an abuse of the court process
  • The power to quash criminal proceedings must be exercised sparingly, with circumspection, and only in the rarest of rare cases
  • The burden lies on the party seeking to quash criminal proceedings to prove, by evidence, that the prosecution is an abuse of process or is actuated by an ulterior or collateral purpose

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st and 2nd respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi, Judicial Review Division
Miscellaneous Application No. 467 of 2014
Jurisdiction invoked
First appeal / appellate review of a High Court judicial review judgment (certiorari and prohibition) under the Court of Appeal's appellate jurisdiction

Relief refused

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NSSF's appeal against the quashing and prohibition of the criminal charges

The prosecution was instituted outside the time limited by Section 37(1) of the NSSF Act and Kiprono and KWS established an abuse of process

Costs

The appeal is dismissed with costs to the 1st and 2nd respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Enough said, the appeal has no merit. It is accordingly dismissed with costs to the 1st and 2nd respondents.
p. 8Final orders - dismissal of appeal
For the prosecution of Kiprono and KWS to have survived scrutiny by the learned Judge, it was incumbent upon NSSF to demonstrate that it was instituted within the time stipulated under Section 37(1).
p. 7Burden on prosecutor to establish compliance with statutory limitation period
The offences in question having allegedly been committed in 1990-1991, the institution of the charges approximately 23 years later is not in our view consistent with the requirements of Section 37(1).
Time-barred prosecution
It was therefore not open to NSSF to unreasonably exercise its powers of prosecution or to do so in bad faith or to achieve ulterior motive.
p. 6Limits on prosecutorial power
the burden lay with Kiprono and KWS to prove, by evidence, that their prosecution was tantamount to an abuse of the court process or that there was any ulterior motive or collateral purpose on the part of NSSF in making the decision to charge them.
p. 7Burden of proof in abuse-of-process applications
it was justified in undertaking a measure of merit review. See the Supreme Court of Kenya decision in Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR).
p. 8Merit review permissible in judicial review of prosecutorial decisions

Issues in the judgment

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minor

The charge is described in the judgment as Criminal Case No. 289 of 2010 although it was filed on 3rd November 2014, an apparent internal inconsistency in the case number

minor

The judgment variously records Kiprono's appointment date as 1st October 2012 and 5th October 2012, and describes him as appointed 'a director' and as 'acting Director General and Chief Executive Officer'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "National Social Security Fund v Kiprono & 2 others (Civil Appeal 613 of 2019) [2026] KECA 376 (KLR)", Case Analysis (2026). Court of Appeal Appeal (Criminal/Judicial Review) - judgment as delivered. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/376/eng@2026-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.