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ELRCDismissedJudicial Review Application (Chamber Summons) filed 28th March 2019· [2019] KEELRC 733 (KLR)

Republic v Cabinet Secretary, Ministry of Labour and Social Protection & 2 others Ex Parte George Njoroge Mbothu & 10 others [2019] KEELRC 733 (KLR)

Employment and Labour Relations Court
18 September 2019
4,377 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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Eleven former employees of Nakumatt Holdings Limited, then under administration, sought judicial review orders of mandamus, certiorari and prohibition compelling the Cabinet Secretary for Labour and Social Protection to pay half of their salary arrears and terminal dues out of the National Social Security Fund pursuant to section 66 of the Employment Act 2007, and to quash and restrain the NSSF Board of Trustees' letter of 12th February 2019 obstructing such payment. The NSSF opposed, arguing its statutory mandate under the NSSF Act does not extend to paying salary arrears of insolvent employers' employees, that such payment would be ultra vires the Fund's objectives and section 34, that the application improperly attacked the merits of its decision rather than the decision-making process, and that the Applicants had not proved their claims. In a judgment delivered on 18th September 2019, Lady Justice Hellen Wasilwa framed three issues: whether the application fell within judicial review, the legal principles on corporate insolvency, and whether the orders sought could issue. Applying the literal rule of statutory interpretation and the principle that a later Act overrides an earlier conflicting one, the court held that the NSSF Act (2013), unlike the Employment Act (2007), does not confer any role on the Fund in paying employees of insolvent employers, and that section 34 of the NSSF Act does not extend Pension Fund use to insolvency payments. The Applicants failed to show any failure or excess of duty by the Respondents warranting the orders. The entire application was dismissed with no order of costs.

Key legal issues

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01

Whether the application falls within judicial review

Holding

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

Reasoning

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.

p. 7
02

Whether the NSSF is obliged under section 66 of the Employment Act to pay salary arrears of employees of an insolvent employer

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The whole judicial review application is dismissed in its entirety
  2. 2.No order of costs

Authorities

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Legislation

  • Employment ActSections 66, 68, 69(1)(a), 70(1) and (2), Part VIII
  • NSSF ActSections 3, 4, 30, 34
  • Fair Administrative Action ActSection 7
  • Retirement Benefits Actnot specified
  • Insolvency Actnot specified
  • Civil Procedure RulesOrder 53 rule 1

Cases cited (13)

  • Kenya National Examination Council vs. Republic Ex Parte Geoffrey Gathenji Njoroge & Others
    [1997] eKLR / Nairobi Civil Appeal No. 266 of 1996
  • Joseph Mburu Kahiga & Another vs. Kenatco Taxis Limited & Another
    Nrb ELRC Petition 39 of 2012
  • Commercial Tax Officer, Rajasthan vs. M/S Binani Cement Limited & Another
    Civil Appeal No. 336 of 2003
  • Erica A. Ross vs. State
    (2000)
  • Reserve Bank of India vs. Peerless General Finance and Investment Company Limited
    1987 SCR (2) 1
  • Grace Wanjiku Mburu & 5 Others Suing on their own behalf and on behalf of 89 others vs. Kenatco Taxis Limited
    [2014] eKLR
  • Law Society of Kenya vs. Kenya Revenue Authority
    [2017] eKLR
  • Institute of Social Accountability & Another vs. National Assembly & 4 Others
    [2015] eKLR
  • Nicole Ann Thibodeau vs. Design Group One Architects LLC
    (SC 16593) (2002)
  • Republic vs. National Employment Authority & 3 Others Ex parte Middle East Consultancy Services Limited
    [2018] eKLR
  • Republic vs. Public Procurement Administrative Review Board & 2 Others Ex parte Rongo University
    [2018] eKLR
  • Republic vs. Principal Secretary, Ministry of Internal Security & Another Ex Parte Schon Noorani & Another
    [2018] eKLR
  • Starways Express Limited vs. National Transport & Safety Authority & 2 Others
    [2017] eKLR
Jurisdiction invoked
Order 53 of the Civil Procedure Rules; Fair Administrative Action Act 2015, Section 7

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, "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.