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Court of AppealPartially AllowedNot expressly stated in the judgment as supplied

National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR)

Court of Appeal of Kenya
3 February 2023
HOHannah OkwenguMohamed Abdulahi WarsameM. WarsameJMJohn Mativo
10,995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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The Court of Appeal reinstated the NSSF Act, 2013, ruling that the employment court lacked jurisdiction to declare a national statute unconstitutional.

What this practically means

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Executive summary

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The Court of Appeal (Okwengu, Warsame and Mativo, JJA) allowed the appeal by the National Social Security Fund Board of Trustees against the ELRC bench's judgment of September 19, 2022 declaring the NSSF Act, 2013 unconstitutional. The court first flagged that on an appeal where jurisdiction is challenged, an appellate court should decide jurisdiction and also give a considered judgment on the merits. On the first issue, it held that the ELRC had wrongfully assumed jurisdiction: the gravamen of the consolidated petitions was the constitutional validity of a statute and its legislative process, a stand-alone claim reserved to the High Court under article 165(3)(d)(i), not an employer-employee dispute under section 12(1)(a)-(f) of the ELRC Act. The word 'including' in section 12(1) is not invariably a word of extension and cannot be used to swallow a substantive constitutional claim. Parties cannot by consent confer jurisdiction, and proceedings before a court without jurisdiction are a nullity. The court therefore set aside the ELRC judgment in its entirety, refusing the plea to remit the matter to the High Court. On the second issue, it applied the pith and substance test: social security and professional pension plans are an exclusive national government function under part 1 of the fourth schedule, and the Act had no provisions affecting county government functional areas, so Senate concurrence under article 110(3) was not required. The ELRC bench was faulted for relying uncritically on Advisory Opinion No 2 of 2013, which was confined to the division of revenue bill. The court also held it was improper to declare specific sections unconstitutional after nullifying the whole Act. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ELRC had jurisdiction to entertain the consolidated petitions challenging the constitutionality of the NSSF Act, 2013
  2. 2.Whether the enactment of the National Social Security Fund Act, 2013 required the concurrence/participation of the Senate as provided under article 110 of the Constitution

Key legal issues

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01

Whether the ELRC had jurisdiction to determine the constitutionality of the NSSF Act, 2013

Holding

The ELRC wrongfully assumed jurisdiction. The germane issue was the constitutional validity of a statute, a stand-alone claim under article 165(3)(d)(i) reserved for the High Court, not an employer-employee dispute under section 12(1)(a)-(f) of the ELRC Act.

Reasoning

The court analysed section 12(1)(a)-(j) of the ELRC Act and held that the word 'including' does not automatically extend jurisdiction; it must be read in context. The petitions' gravamen was the constitutional validity of the legislative process, not an employer-employee dispute. Although the NSSF Act affects employers and employees, side winds do not determine what a law is 'in relation to'; the central focus governs. The word 'includes' cannot be used to swallow a substantive constitutional claim.

p. 19
02

Interpretation of the word 'including' in section 12(1) of the ELRC Act

Holding

The word 'includes' is not invariably a word of extension; context may make it exhaustive ('mean and include'). Jurisdiction is extended only by necessary implication from section 12(1)(a)-(j).

Reasoning

Relying on Dilworth v Commissioner of Stamps and Reynolds v Commissioner of Income Tax, the court held that whether 'includes' enlarges or exhaustively defines depends on the text and context. The ELRC Act's preamble and section 12(1)(a)-(f) show Parliament intended the court to resolve employer-employee disputes as defined by article 162. No necessary implication brings the constitutional validity of a statute within that scope.

03

Whether enactment of the NSSF Act, 2013 required Senate concurrence under article 110(3)

Holding

No. Applying the pith and substance test, the Act falls within the exclusive national government function of social security and professional pension plans under part 1 of the fourth schedule; it has no provisions affecting the functional areas of county governments.

Reasoning

The ELRC bench failed to undertake the pith and substance analysis and instead relied uncritically on Advisory Opinion No 2 of 2013, which concerned the division of revenue bill. Although article 110(1)(a) defines bills concerning counties broadly, the burden lies on the party alleging that a bill concerns counties. The Act relates exclusively to national government functions and none of its objects touch schedule 4 part 2 functional areas.

p. 26
04

Whether declaring the whole Act unconstitutional justified further declarations on specific sections

Holding

It was improper. Once the entire Act was nullified, the inquiry ended; further declarations served no utilitarian value, and alternative prayers cannot be granted after the main prayer has been allowed.

Reasoning

The court described the ELRC bench's section-by-section declarations as an 'over kill'. A nullified statute is no longer law, so determining the validity of its provisions was unnecessary and legally incoherent, and granting alternative prayers after allowing the main prayer was procedurally improper.

p. 7
05

Treatment of precedents and the effect of consent orders on jurisdiction

Holding

A case is authority only for what it decides; the Advisory Opinion No 2 of 2013 findings were confined to the division of revenue bill. Consent by parties or the Chief Justice's directions could not cure the ELRC's want of jurisdiction.

Reasoning

The court relied on State of Orissa v Sudhansu Sekhar Misra to stress that ratio is fact-bound, and on Niki Tobi JSC to hold that jurisdiction is a matter of hard law unaffected by sympathy. The parties' consent to consolidation and certification and the Chief Justice's directions could not confer jurisdiction the statute withheld.

p. 24

Legal principles established

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  • The ELRC's jurisdiction is limited to employer-employee disputes; constitutional issues may be determined by the ELRC only if they arise from an employer-employee dispute
  • Parties cannot by consent confer jurisdiction on a court which it does not have under its enabling statute
  • Proceedings conducted by a court without jurisdiction are a nullity, as are judgments and orders arising from them
  • Jurisdiction is determined on the basis of the pleadings, not the substantive merits of the case
  • The Senate's concurrence under article 110(3) is required only for bills concerning county governments; whether a bill concerns counties is determined by the pith and substance test, and a law is classified by its dominant characteristic
  • Legislative enactments enjoy a presumption of constitutional validity which the person alleging unconstitutionality must dislodge
  • A decision is authority only for what it actually decides; its ratio must be understood against the facts of the particular case
  • Once a court declares an entire statute unconstitutional, it should not proceed to declare specific sections unconstitutional; alternative prayers cannot be granted after the main prayer has been allowed

Court orders

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  1. 1.The appellant's appeal is allowed
  2. 2.The judgment of the ELRC delivered on September 19, 2022 and all consequential orders are set aside in their entirety
  3. 3.Each party shall bear its own costs for this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority

Wrote the judgment

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

JM
majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court
Consolidated Petition Nos 34 of 2014, 35 of 2014, 38 of 2014, 49 of 2014 and 50 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal; the judgment does not expressly cite the constitutional provision under which the appeal was filed. The court exercised appellate review of the ELRC judgment of September 19, 2022.

Relief refused

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Mr Obura's plea that, if the ELRC lacked jurisdiction, the matter be referred back to the High Court for trial

The parties had had the opportunity to address the jurisdiction question after the Chief Justice's directions and fiercely defended the ELRC's jurisdiction; the plea was undesirable

p. 19

Costs

Each party shall bear its own costs for this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where a court is drained of the jurisdiction to entertain a matter, the proceedings flowing from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity.
p. 14Effect of want of jurisdiction
Decided cases are in agreement that constitutional issues can be determined by the ELRC only if they arise from an employer-employee dispute.
p. 18Scope of ELRC jurisdiction over constitutional claims
Parties cannot by consent confer jurisdiction on a court, which it does not have by virtue of its enabling statute.
p. 19Consent cannot cure jurisdictional defect
The words "including" or "connected thereto" cannot be deployed to swallow such a substantive issue so as to justify invocation of other claims.
p. 18Interpretation of 'including' in jurisdictional statutes
if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires even though it might incidentally trench on topics not within its legislative competence.
p. 23Pith and substance test for legislative competence
it is a cardinal principle of law that legislative enactments enjoy a presumption of constitutional validity. This presumption operates until the person alleging unconstitutionality dislodges it by demonstrating the alleged unconstitutionality.
p. 25Presumption of constitutionality
Having concluded that the bench lacked jurisdiction, the only order which comments itself in the circumstances of this case is to allow the appellant's appeal which we hereby do and set aside the judgment of the ELRC delivered on September 19, 2022 in its entirety.
p. 20Final orders - disposition on jurisdiction
We therefore set aside the entire judgment dated September 19, 2022 and all the consequential orders. Each party shall bear its own costs for this appeal.
p. 26Final orders - disposition and costs

Issues in the judgment

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minor

The record of appeal names the respondents only as 'Kenya Tea Growers Association & 14 others' without disclosing the identities of the 14 others; the court noted this internally

minor

The judgment contains an internal date inconsistency: it states the parties recorded a consent on 'June 20, 2010' in a context that otherwise concerns events of 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR)", Case Analysis (2023). Not expressly stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/80/eng@2023-02-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.