Nyakuri & 206 others v Board of Trustees National Social Security Fund (NSSF) (Petition E128 of 2023) [2024] KEELRC 797 (KLR)
The bottom line
#Kenya's Employment Court threw out NSSF employees' pay and discrimination claims but ordered the Fund to start issuing itemised payslips from May 2024.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of claims based on constitutionally defective HR instruments
Claims based on the PWC Report and HR instruments not approved by the Public Service Commission must collapse
The court adopted the COFEK decision which held that NSSF's human resource instruments and the PWC Report recommendations were implemented without the constitutional approval of the Public Service Commission and were therefore unconstitutional. Claims and prayers resting on those instruments could not be enforced and the petitioners' claims founded on them were unjustified.
Alleged discrimination against G5 and G6 management staff
No discrimination established under articles 27 and 41 read with section 5 of the Employment Act
The petitioners are management staff bound by their individual contracts; CBA benefits never became part of their contracts. Further, the recommendations of the PWC Report that were implemented for management cadres G1 to G6 were implemented uniformly across all management grades, and the petitioners did not rebut that position, so no comparative less favourable treatment was proved.
Prayer for disclosure of the PSC approval communication
Refused as superfluous since the respondent had already exhibited the communication
The respondent had already delivered the Public Service Commission communication approving the HR instruments and implementation matrix as exhibit CO 11 to the replying affidavit, so granting the disclosure prayer would serve no purpose.
Conversion of G6 employees to MG6
Individual grievances must first be pursued through internal and appellate procedures
G6 petitioners who were not converted to MG6 under the PSC-approved instruments may have their grievances considered internally by the respondent, and failing satisfaction may appeal to the Commission or file appropriate court proceedings. The petitioners had not shown exhaustion of those procedures, so the court declined to grant relief at this stage.
Consolidated salaries and itemised pay statements
Consolidated pay is lawful only with reasonable housing provision, and an itemised payslip must be issued going forward
Section 31 of the Employment Act permits consolidation only where the consolidated pay includes reasonable provision for housing, which must be shown in the pay statement. Relying on section 20 of the Employment Act, the court ordered the respondent to issue itemised pay statements to the petitioners starting with the salary payment at the end of May 2024.
Legal principles established
#- Claims founded on HR instruments implemented without Public Service Commission approval cannot be enforced as they are unconstitutional
- A consolidated salary is permissible only where it includes reasonable provision for housing, and the employer must itemise the pay statement accordingly
- CBA terms do not automatically become incorporated into the contracts of non-unionisable management staff
Court orders
#- 1.Declaration that the respondent shall henceforth, starting salary payment at the end of May 2024, deliver to the petitioners an itemised pay statement or payslip as contemplated in section 20 of the Employment Act
- 2.Each party to bear own costs of the petition
- Jurisdiction invoked
- Articles 27 and 41 of the Constitution of Kenya 2010 as read with the Employment Act, 2007 (employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakuri & 206 others v Board of Trustees National Social Security Fund (NSSF) (Petition E128 of 2023) [2024] KEELRC 797 (KLR)", Case Analysis (2024). Petition (filed June 30, 2023) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/797/eng@2024-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.