Republic v Cabinet Secretary, Ministry of Labour and Social Protection & 2 others Ex Parte George Njoroge Mbothu & 10 others [2019] KEELRC 733 (KLR)
The bottom line
#The Employment and Labour Relations Court ruled Kenya's NSSF cannot be forced to pay salary arrears owed by insolvent employers like Nakumatt.
What this practically means
#Executive summary
#Key legal issues
#Whether the application falls within judicial review
The remedies sought (mandamus, certiorari, prohibition) are judicial review remedies under Order 53 and the Fair Administrative Action Act, but the Applicants failed to establish the grounds for their issuance
The court set out the scope of the three JR remedies and the expanded grounds under section 7 of the Fair Administrative Action Act. It held that for the orders to issue, the Applicants had to establish that the Respondents failed to perform a duty owed them or acted beyond their mandate, which they did not demonstrate.
Whether the NSSF is obliged under section 66 of the Employment Act to pay salary arrears of employees of an insolvent employer
No. The NSSF Act, being the later Act, does not list payment on employer insolvency among its objectives, and section 34 limits the uses of the Pension Fund; such payment would be ultra vires
Section 66 of the Employment Act obliges the Minister to pay employees of insolvent employers out of the NSSF. However, the NSSF Act (2013) post-dates the Employment Act (2007), and its section 4 objectives and section 34 permitted uses do not include insolvency payments. Applying the literal rule and the rule that later statutes override earlier ones, the court held the NSSF cannot lawfully make such payments.
Legal principles established
#- A creature of statute can only do what its enabling Act permits it to do; anything outside that renders it amenable to the High Court's supervisory jurisdiction
- Where an earlier Act and a later Act conflict, the later Act's provisions override the earlier one
- The first rule of statutory construction is literal construction; courts cannot strain statutory language to ascribe a meaning the legislature did not employ
Court orders
#- 1.The whole judicial review application is dismissed in its entirety
- 2.No order of costs
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules; Fair Administrative Action Act 2015, Section 7
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary, Ministry of Labour and Social Protection & 2 others Ex Parte George Njoroge Mbothu & 10 others [2019] KEELRC 733 (KLR)", Case Analysis (2019). Judicial Review Application (Chamber Summons) filed 28th March 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/733/eng@2019-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.