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ELRCOtherPetition No. 35 of 2014 (Lead file), consolidated with Petitions 34, 38, 49 and 50 of 2014· [2015] KEELRC 1549 (KLR)

Kenya County Government Workers’ Union v National Social Security Fund Board of Trustees & 5 others [2015] KEELRC 1549 (KLR)

Employment and Labour Relations Court
27 February 2015
MNMathews N. Nduma
2,615 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court ruled that both it and the High Court can hear challenges to the NSSF Act 2013, and recommended a multi-judge bench.

What this practically means

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Executive summary

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This is a first-instance jurisdictional ruling in consolidated Petitions 34, 35, 38, 49 and 50 of 2014 (Lead Petition 35), challenging the constitutionality of the National Social Security Fund Act, 2013. By consent of counsel, the petitions were consolidated and referred to the Chief Justice for empanelment of a bench of not less than three judges under Article 165(4). The Chief Justice directed that the question of the jurisdiction of the Employment and Labour Relations Court be argued first before the Principal Judge. The Petitioners, through Mr. Obura Mbeche, submitted that the disputes relating to the NSSF Act fall within the exclusive jurisdiction of the Employment and Labour Relations Court under Article 162 and Section 12 of the Industrial Court Act, while the 1st Respondent submitted that the matters fall outside Section 12 and belong to the High Court, and that counsel had no authority to certify substantial questions of law by consent. The court held the issues were a 'mixed grill' spanning employment and labour relations and constitutional interpretation, so that neither court had exclusive jurisdiction and both could determine the issues. Relying on Evangelical Mission for Africa v Kimani Gachihi, Kenya Medical Research Institute v Attorney General and USIU v Attorney General, it certified that the consolidated petition raised substantial questions of law and directed the Chief Justice to consider empaneling a bench of not less than three judges drawn from both courts, sitting as the Employment and Labour Relations Court. No costs order was made. The substantive constitutional questions remained for determination by the empaneled bench.

Key legal issues

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01

Jurisdiction over the consolidated petition challenging the NSSF Act, 2013

Holding

Both the High Court and the Employment and Labour Relations Court have jurisdiction because the issues are of a 'mixed grill' nature - employment and labour relations questions together with constitutional interpretation and validity of legislation.

Reasoning

The court reasoned that the NSSF Act, 2013 establishes a fund contributed to by employers, employees and self-employed persons, so the dispute is premised partly on employment relationships and partly on broader constitutional questions. Because the issues interpret the Constitution, question the legality of substantial portions of the Act and of a fund premised on both employment and self-employment, neither court holds exclusive jurisdiction over all issues; both courts' respective strengths would benefit determination of the dispute.

p. 4
02

Whether the consolidated petition raises substantial questions of law under Article 165(4)

Holding

Yes - the court certified that the consolidated petition raises substantial questions of law warranting empanelment by the Chief Justice of a bench of not less than three judges drawn from both courts.

Reasoning

Adopting Evangelical Mission for Africa v Kimani Gachihi, the court held the circumstances are special and require extraordinary jurisdiction. It relied on Kenya Medical Research Institute v Attorney General and USIU v Attorney General for the proposition that courts established under Article 162(2) have the same status as the High Court and that the Chief Justice may empanel any judge of such a court. The certification is a matter for the judge, not counsel's consent.

p. 4

Legal principles established

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  • Where issues in a petition are of a 'mixed grill' nature spanning employment and labour relations as well as constitutional interpretation, neither the High Court nor the Employment and Labour Relations Court has exclusive jurisdiction over all the issues, and both courts may determine them.
  • The empanelment of a bench under Article 165(4) arises where circumstances are special and the jurisdiction to be exercised is not ordinary.
  • In assigning Judges under Article 165(4), the Chief Justice is free to appoint any Judge of a court with the status of the High Court, including judges of the Employment and Labour Relations Court.

Court orders

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  1. 1.That the consolidated petition raises substantial questions of law concerning employers and employees and matters incidental thereto
  2. 2.That the consolidated Petition raises substantial questions of law on the constitutionality of the National Social Security Fund Act, 2013 and matters incidental thereto
  3. 3.That the High Court and the Employment and Labour Relations Court have the jurisdiction to determine the issues raised in the consolidated Petition
  4. 4.That the Hon. the Chief Justice consider empaneling a bench of uneven number of Judges, being not less than three (3), from both the High Court and the Employment and Labour Relations Court but sitting as Employment and Labour Relations Court to hear and determine the consolidated Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21(2), 23(1), 27(1), 30, 35, 40, 41, 43, 46, 47, 50, 159(2)(e), 162(2), 162(3), 165(3)(a)-(d), 165(4), 165(5), 191, 205(1), 110
  • Industrial Court ActSection 12
  • National Social Security Fund Act, 2013Sections 4(b), 13, 17(6)(b), 18(2), 19(2), 20, 27, 35(4), 49(2), 49(3), 72

Cases cited (6)

  • Evangelical Mission for Africa and Another v. Kimani Gachihi and Another
    [2014] eKLR
  • Kenya Medical Research Institute v. The Attorney General and 3 Others
    [2014] eKLR
  • United States International University (USIU) v. The Attorney General
    [2012] eKLR
  • Daniel N. Mugendi v. Kenyatta University and 3 Others
    [2013] eKLR
  • The Speaker of the Senate and Another v. Attorney General and Others, Supreme Court Advisory Opinion No. 2 of 2013
    Advisory Opinion No. 2 of 2013
  • HCC Misc. Civil Application 56 of 2011
    HCC Misc. Civil Application 56/2011
Jurisdiction invoked
Articles 162(2), 165(3)(b) and (d) and 165(4) of the Constitution; Section 12 of the Industrial Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya County Government Workers’ Union v National Social Security Fund Board of Trustees & 5 others [2015] KEELRC 1549 (KLR)", Case Analysis (2015). Petition No. 35 of 2014 (Lead file), consolidated with Petitions 34, 38, 49 and 50 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1549/eng@2015-02-27

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