Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others
The bottom line
#Supreme Court refuses to stop NSSF Act implementation; appeal to proceed on priority basis.
What this practically means
#The Supreme Court dismissed applications to stop the NSSF Act, 2013 from being implemented. The Court found that the Court of Appeal had only set aside an earlier ruling on jurisdiction, not issued a positive order that could be stayed. The applicants also failed to show that their members would suffer irreparable harm if the Act continued. The main appeal will now be heard quickly.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 3rd applicant (County Pensioners Association) has locus standi to file the motion and appeal.
- 2.Whether the applicants have demonstrated that the consolidated appeal is arguable.
- 3.Whether the appeal would be rendered nugatory unless the conservatory orders sought are granted.
- 4.Whether it is in the public interest to grant the conservatory orders sought.
Key legal issues
#Whether the 3rd applicant (County Pensioners Association) has locus standi to file the motion and appeal.
The 3rd applicant has locus standi because it retains the same identifiable interest in the dispute that led to its joinder at the ELRC, and its case is in tandem with the primary parties' case.
The court found that the 3rd applicant's interest in the constitutionality and implementation of the NSSF Act was the basis for its joinder at the ELRC. Since Laptrust still exists and receives contributions, the 3rd applicant's members have a stake. The 3rd applicant did not introduce new issues beyond those of the primary parties (the 1st and 2nd applicants), and its appeal and motion are aligned with theirs. Therefore, the challenge to its capacity fails at this interlocutory stage.
Whether the applicants are entitled to a stay of execution of the Court of Appeal judgment.
The prayer for stay of execution is denied because the Court of Appeal did not issue a positive order capable of execution; it merely set aside the ELRC judgment on jurisdictional grounds.
The court applied the principle from Western College of Arts and Applied Sciences v Oranga that a stay can only issue against a positive order requiring a party to do or refrain from doing something. Here, the Court of Appeal simply set aside the ELRC judgment for lack of jurisdiction, without ordering any party to act. Granting a stay would effectively reverse the Court of Appeal's decision at an interlocutory stage, prejudicing the pending appeal.
Whether the applicants are entitled to a conservatory order restraining implementation of sections 18, 19, 20 and 71 of the NSSF Act, 2013.
The conservatory order is denied because the applicants failed to demonstrate that the appeal would be rendered nugatory or that public interest favoured the grant.
The court applied the Gatirau Peter Munya principles: arguability, nugatory effect, and public interest. While the appeal was found arguable on the jurisdiction issue, the applicants did not show that their members would suffer irreparable harm. The 1st and 2nd applicants' members had already complied with the Act by registering and contributing to NSSF. No evidence was presented that contributions would be lost if the appeal succeeded. Public interest in social security implementation also weighed against the order.
Legal principles established
#- An interested party cannot raise new issues beyond those of the main parties in a case.
- A stay of execution requires a positive order that commands a party to do or refrain from doing something.
- A conservatory order will not be granted unless the applicant shows the appeal would be rendered nugatory without it.
- Public interest in social security implementation can weigh against granting conservatory orders.
- Locus standi of an interested party is preserved if it retains the same identifiable interest that led to its joinder.
- Compliance with a law by the applicant's members undermines a claim of irreparable harm.
Court orders
#- 1.The 1st and 2nd applicants' notice of motion dated March 2, 2023 and filed on March 3, 2023 is hereby dismissed.
- 2.The 3rd applicant notice of motion dated February 16, 2023 and filed on February 17, 2023 is hereby dismissed.
- 3.Costs of the motions shall abide the outcome of the consolidated appeal.
- 4.The consolidated appeal be set down for hearing on a priority basis.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No 656 of 2022
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Petition No E002 of 2023
Relief refused
#Conservatory order restraining implementation of sections 18, 19, 20 and 71 of the NSSF Act, 2013
The applicants did not demonstrate that the appeal would be rendered nugatory or that public interest favoured the grant of the orders.
Stay of execution and/or implementation of the Court of Appeal judgment dated February 3, 2023
The Court of Appeal did not issue a positive order capable of execution; granting the stay would reverse the judgment at an interlocutory stage.
Costs
Costs of the motions shall abide the outcome of the consolidated appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The 1st and 2nd applicants' notice of motion dated March 2, 2023 and filed on March 3, 2023 is hereby dismissed.
The 3rd applicant notice of motion dated February 16, 2023 and filed on February 17, 2023 is hereby dismissed.
Costs of the motions shall abide the outcome of the consolidated appeal.
The consolidated appeal be set down for hearing on a priority basis.
we are persuaded that the 3rd applicant possesses the same identifiable interest in the dispute which led to its admission at the ELRC in the matter at hand.
the Court of Appeal did not issue a positive order capable of execution as defined by the Court of Appeal for East Africa in the often-quoted case of Western College of Arts and Applied Sciences v Oranga & others [1976] KLR 63
we are not satisfied that the applicants have met the other two principles to warrant the conservatory order sought
Key timeline
#Practical implications
#Stay requires positive order
When challenging a Court of Appeal decision that merely set aside a lower court ruling on jurisdiction, do not seek a stay of execution. Instead, focus on arguing the merits of the appeal. The Supreme Court confirmed that no positive order exists to stay, and a conservatory order requires clear evidence of nugatory effect and public interest.
Continue NSSF compliance
Employers who have already registered and contributed under the NSSF Act should continue doing so. The Supreme Court refused to halt implementation, noting that compliance by members of the Kenya Tea Growers Association and Agricultural Employers Association showed no irreparable harm. The appeal will be heard quickly, but until a final decision, the Act remains in force.
Pensioners can participate
The County Pensioners Association was allowed to remain in the case as an interested party. Individual pensioners who are members of such associations can rely on their group to represent their interests in court. However, the Court did not grant any immediate relief, so pensioners should continue to engage with NSSF as required by law.
Frequently asked questions
#Is the NSSF Act, 2013 still in force in Kenya after this Supreme Court ruling?+
Yes. The Supreme Court refused to stop implementation of the Act. The Court of Appeal had earlier set aside a declaration that the Act was unconstitutional, but that decision is now being appealed. Until the final appeal is heard, the NSSF Act remains valid and must be complied with.
What does a stay of execution mean in Kenya and why was it denied here?+
A stay of execution pauses a court order that requires someone to act or stop acting. The Supreme Court denied it because the Court of Appeal did not issue any positive order—it simply set aside an earlier judgment on jurisdiction. Without a positive order, there is nothing to stay.
Can an interested party in Kenya bring new issues to a case?+
No. The Supreme Court confirmed that an interested party cannot introduce new issues beyond those raised by the main parties. However, the interested party can argue on the same issues that affect its identifiable interest. In this case, the County Pensioners Association was allowed to continue because its arguments aligned with the main parties.
What happens next in the NSSF Act case in Kenya?+
The Supreme Court directed that the consolidated appeal be set down for hearing on a priority basis. The main issue is whether the Employment and Labour Relations Court had jurisdiction to declare the NSSF Act unconstitutional. Until that appeal is decided, the Act remains in effect.
Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lekakimon v Speaker, County Assembly of Baringo & 2 others (Petition E010 of 2024) [2025] KEELRC 2394 (KLR)[2025] KEELRC 2394 (KLR)29 Aug 2025applied
- Kenya Plantation & Agricultural Workers Union v Rea Vipingo Limited & another (Cause E008 of 2025) [2025] KEELRC 2098 (KLR)[2025] KEELRC 2098 (KLR)17 Jul 2025applied
- Abuya v CS, Ministry of Agriculture & Livestock Development & 2 others; Linyiru & 2 others (Interested Parties) (Employment and Labour Relations Petition E058 of 2024) [2025] KEELRC 1182 (KLR)[2025] KEELRC 1182 (KLR)28 Apr 2025
- Kenya Peasants League v Attorney General & 19 others (Civil Application E004 of 2025) [2025] KECA 448 (KLR)[2025] KECA 448 (KLR)7 Mar 2025
- Kennedy v International Rescue Committee Kenya; Kenya Medical Practitioners and Dentist Board (Interested Party) (Employment and Labour Relations Petition E012 of 2024) [2024] KEELRC 1963 (KLR)[2024] KEELRC 1963 (KLR)26 Jul 2024applied
- Odongo v Clerk, Nakuru County Assembly & 5 others[2024] KESC 29 (KLR)28 Jun 2024followed
Cite this brief
#Cite this brief
Caselaw, "Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others", Case Analysis (2023). Petition (Application) E004 of 2023 & Petition E002 of 2023 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/42/eng@2023-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.