Oriaro v Social Security and Services & 4 others (Petition 24 of 2015) [2015] KEELRC 1076 (KLR)
The bottom line
#Kenya's Employment Court ruled it can hear disputes over NSSF pension fund management even without a direct employer-employee relationship.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction where no direct employer-employee relationship exists
The Court held that although the Trustees are not employees and there is no employer-employee relationship, the subject matter of the dispute - oversight of pension funds contributed pursuant to contracts of employment - falls within Section 12(1)(a) of the Industrial Court Act, so the Court has jurisdiction.
The Court accepted that Trustees of the NSSF are not employees within Section 2 of the Employment Act, and that neither the Cabinet Secretary nor the Fund is their employer. It also held Section 12(2) of the Industrial Court Act concerns locus standi, not jurisdiction. However, since the fund is created from deductions from employees and employers under contracts of employment, a dispute over its lawful oversight and management arises out of employment, bringing the matter within Section 12(1)(a). The Court characterized it as a borderline case but concluded it is best suited to determine the suit.
Effect of Section 12(2) of the Industrial Court Act
Section 12(2) does not confer jurisdiction; it merely identifies persons with locus standi to lodge applications, claims or complaints in the Court.
Counsel for the Petitioner/Claimants had argued that Section 12(2) adds a further genus of applications that may be lodged in the Court, including by or against the Cabinet Secretary, thus grounding jurisdiction. The Court rejected this, holding that the provision deals with who may bring suits rather than the Court's jurisdiction, and that the suit does not fall within the Court's jurisdiction merely because the 1st Respondent is the Cabinet Secretary named in the provision.
Legal principles established
#- Trustees of the NSSF are not employees of the Fund or the Cabinet Secretary within the meaning of Section 2 of the Employment Act.
- Section 12(2) of the Industrial Court Act deals with locus standi of persons named therein and does not confer jurisdiction on the Court.
- A dispute concerning oversight and management of pension funds contributed and invested pursuant to contracts of employment is a matter arising out of employment between an employer and an employee, conferring jurisdiction on the ELRC.
Court orders
#- 1.The preliminary objection is not upheld
- 2.The consolidated dispute will take its normal course
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 as read with Section 4 and Section 12 of the Industrial Court Act No. 20 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oriaro v Social Security and Services & 4 others (Petition 24 of 2015) [2015] KEELRC 1076 (KLR)", Case Analysis (2015). Employment and Labour Relations Petition 24 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1076/eng@2015-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.