Kenya Union of Commercial Foods and Allied Workers v National Social Security Fund; Salaries and Remuneration Commission (Objector) [2021] KEELRC 1989 (KLR)
The bottom line
#Kenya's employment court ruled NSSF workers aren't public officers, so the SRC couldn't block their union's pay agreement with the Fund.
What this practically means
#Executive summary
#Key legal issues
#Whether NSSF employees are public officers subject to SRC advice under Article 230(4) of the Constitution
NSSF employees are not public officers because their remuneration is not payable directly from the Consolidated Fund or money provided by Parliament, and NSSF is not a State organ or body established under the Constitution.
Article 260 defines a public office as one whose remuneration and benefits are payable directly from the Consolidated Fund or out of money provided by Parliament. NSSF derives its existence from the NSSF Act, 2013 and the State Corporations Act, is not a commission, office, agency or body created under the Constitution, and pays its employees from its own generated income and investments. State corporations are therefore outside the SRC's mandate to advise on remuneration of other public officers.
Whether the prior decision in Petition No. 30 of 2014 binds this court and precludes re-litigation of the objection
The decision in Petition No. 30 of 2014 was clear and unequivocal, was not stayed or overturned, and SRC cannot repeatedly raise the same arguments expecting a different outcome.
The court noted that SRC has consistently lost on the argument that CBAs of state corporations not funded by the exchequer require SRC approval. The decision in Petition 30 of 2014 was never stayed or overturned by any competent court, and no stay of the pending appeals was demonstrated. SRC also failed to supply pleadings from the appeals to enable the court assess whether the issues were similar.
Whether the authorities relied on by SRC were applicable
The authorities cited by SRC were not relevant because the entities they concerned (TSC, Nairobi City County Government, Moi Teaching and Referral Hospital, Kenyatta National Hospital) are funded directly from the Consolidated Fund or funds set aside by Parliament, unlike NSSF.
The court distinguished the cited cases on the source of funding of the employers concerned. Since NSSF is self-funding through members' contributions and investments, the decisions upholding SRC's role over directly exchequer-funded bodies did not apply to it.
Legal principles established
#- A decision of a court of co-ordinate jurisdiction is not binding though persuasive.
- Employees of state corporations not funded directly from the Consolidated Fund or money provided by Parliament are not public officers whose remuneration is subject to SRC advice under Article 230(4).
- CBAs are time-bound and disputes relating to them must be determined with haste.
Court orders
#- 1.The objection to registration of the CBA is dismissed
- 2.The CBA dated 23rd July 2020 between Kenya Union of Commercial and Food Allied Workers and National Social Security Fund for the period 1st July 2019 to 30th June 2021 is registered
- 3.Each party shall bear its own costs
- Jurisdiction invoked
- Section 60 of the Labour Relations Act (registration of collective bargaining agreements)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Foods and Allied Workers v National Social Security Fund; Salaries and Remuneration Commission (Objector) [2021] KEELRC 1989 (KLR)", Case Analysis (2021). Registration of Collective Bargaining Agreement (presented by letter dated 8th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1989/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.