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Supreme CourtDismissedPetition (Application) E004 of 2023 & Petition E002 of 2023 (Consolidated)

Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others; Law Society of Kenya (Intended Amicus Curiae)

Supreme Court of Kenya
14 July 2023
1,658 words in judgment
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The bottom line

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Court rejects LSK's late amicus bid; parties already covered its points.

What this practically means

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The Supreme Court dismissed the Law Society of Kenya's request to join a case as a friend of the court. The court found that LSK's arguments were already raised by the main parties, and its application came too late—filed in May 2023 after pleadings closed in March 2023. The court warned that amicus briefs must be timely, neutral, and bring new legal points, not repeat what others have said. Each side paid its own costs to avoid discouraging future public-interest applications.

Executive summary

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The Law Society of Kenya (LSK) filed a notice of motion seeking leave to be admitted as amicus curiae in a consolidated appeal before the Supreme Court concerning the jurisdiction of the Employment and Labour Relations Court (ELRC) to determine the constitutionality of the NSSF Act, 2013. LSK proposed to address three points of law: the constitutional contours of ELRC jurisdiction under Article 162(2)(a); the interpretation of 'disputes relating to employment and labour relations'; and whether pension statute validity disputes fall within that category. The application was opposed by several respondents, including the NSSF Board of Trustees, the Cabinet Secretary for Labour, the Competition Authority, the Attorney General, and the Kenya County Government Workers Union, on grounds that LSK's proposed issues had already been addressed by the parties, the application was made with inordinate delay, and LSK had not demonstrated neutrality. The Supreme Court, applying the principles from the Mumo Matemu case, found that LSK's proposed amicus brief did not introduce novel aspects of the legal issue, as the parties had already addressed those points in their pleadings and submissions. Additionally, the court was not convinced that the motion was brought within reasonable time, given that the petitions were filed in February 2023 and pleadings closed in March 2023, yet LSK applied in May 2023 without explanation. Consequently, the court dismissed the motion. On costs, the court ordered each party to bear their own costs, guided by the Jasbir Singh Rai case, to avoid deterring future bona fide amicus applications. The judgment was unanimous, authored by Chief Justice Koome, with the full bench concurring.

Questions the Court framed

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

  1. 1.Whether LSK has met the principles for admission as amicus curiae as set out in rule 19 of the Supreme Court Rules, 2020 and the Mumo Matemu case.

Key legal issues

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01

Whether LSK met the threshold for admission as amicus curiae in the consolidated appeal.

Holding

LSK did not meet the threshold because its proposed amicus brief did not introduce novel aspects of the legal issue and the application was not made timeously.

Reasoning

The court applied the four principles from the Mumo Matemu case: amicus briefs must be limited to legal arguments, neutral, filed timeously, and address points of law not already addressed by the parties. The court found that the arguments in LSK's proposed brief had largely been addressed by the parties through their pleadings and submissions, and the motion was not brought within reasonable time, given that the petitions were lodged in February 2023 and pleadings closed in March 2023, yet LSK filed its application in May 2023 without explanation for the delay.

02

Whether costs should be awarded against the unsuccessful applicant for amicus curiae admission.

Holding

Each party should bear their own costs to avoid barring bona fide applications for admission of amici curiae.

Reasoning

The court exercised its discretion, guided by the Jasbir Singh Rai case, and held that ordering costs against LSK might deter future bona fide applications for admission as amicus curiae. The court also recognized that LSK was motivated by public interest, even though its application failed.

Legal principles established

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  • Amicus briefs must be limited to legal arguments and remain neutral.
  • Amicus applications must be filed timeously, with no unexplained delay.
  • An amicus brief must introduce novel legal points not already addressed by parties.
  • Courts may deny amicus status if the proposed brief merely repeats existing arguments.
  • Costs may be waived for unsuccessful amicus applicants acting in public interest.

Court orders

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  1. 1.The notice of motion dated May 15, 2023 and lodged on May 16, 2023 by LSK is hereby dismissed.
  2. 2.Each party shall bear their own costs.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Rule 19 of the Supreme Court Rules, 2020
Consolidated with
SC Petition No E002 of 2023, SC Petition No E004 of 2023

Relief refused

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Leave for admission of LSK as amicus curiae in the consolidated appeal

The proposed amicus brief does not introduce novel aspects of the legal issue in question and the motion was not brought within reasonable time.

Leave to make written and oral arguments on the proposed points of law

Same as above; the application for admission was dismissed.

Costs

Each party shall bear their own costs.

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.

the arguments in the proposed amicus brief have largely been addressed in one way or another by the parties to the consolidated appeal through their pleadings and/or submissions. As such, the proposed amicus brief does not introduce novel aspects of the legal issue in question.
p. 6 Amicus curiae admission - novelty requirement
we are not convinced that the motion was brought within reasonable time.
p. 6 Amicus curiae admission - timeliness requirement
The notice of motion dated May 15, 2023 and lodged on May 16, 2023 by LSK is hereby dismissed.
p. 7 Final order - dismissal of application
Each party shall bear their own costs.
p. 7 Costs order

Key timeline

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February 2023
Consolidated petitions filed in the Supreme Court on NSSF Act jurisdiction.
March 2023
Pleadings and submissions closed among the main parties.
2023-05-15
LSK files notice of motion seeking amicus curiae admission.
2023-05-16
Motion lodged; respondents oppose on grounds of delay and repetition.
2023
Supreme Court dismisses LSK's motion; each party bears own costs.

Practical implications

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For lawyers

Amicus timing and novelty are key

When seeking amicus curiae status in the Supreme Court, file your application promptly after the main pleadings close—ideally within weeks, not months. Ensure your brief raises a genuinely new legal angle, not one already covered by the parties. The court will scrutinize both timing and novelty strictly, as shown here where LSK's delay from March to May without explanation was fatal.

For businesses

NSSF Act jurisdiction remains unsettled

This ruling does not resolve whether the Employment and Labour Relations Court can decide the constitutionality of the NSSF Act 2013. That core issue is still pending before the Supreme Court. Businesses should monitor the main appeal closely, as its outcome will affect employer contribution obligations and pension fund governance. The LSK's exclusion does not change the stakes.

For individuals

Your NSSF rights case continues

The Supreme Court has not yet decided the key question: which court can hear challenges to the NSSF Act's constitutionality. If you are a worker or pensioner affected by NSSF contributions, the main appeal will determine your legal options. This ruling only affects who can join as a friend of the court, not your substantive rights. Stay informed as the main case progresses.

Frequently asked questions

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What is an amicus curiae in Kenya's Supreme Court?+

An amicus curiae, or 'friend of the court,' is a person or organization allowed to give legal arguments in a case they are not a party to. In Kenya, the Supreme Court requires amicus briefs to be neutral, timely, and bring new legal points not already raised by the main parties.

Why did the Supreme Court reject LSK's amicus application in Kenya?+

The court rejected LSK's application because its proposed arguments were already covered by the main parties in their pleadings and submissions. Also, LSK filed its motion in May 2023, two months after pleadings closed in March 2023, without explaining the delay. The court requires amicus applications to be timely and novel.

Does this ruling affect the NSSF Act case in Kenya?+

No, this ruling only decides that LSK cannot join as a friend of the court. The main appeal—about whether the Employment and Labour Relations Court can decide the NSSF Act's constitutionality—is still ongoing. The Supreme Court will hear the parties' arguments and issue a final decision later.

Can LSK reapply as amicus curiae in the same case in Kenya?+

The court dismissed LSK's motion without prejudice, meaning LSK could theoretically reapply if it addresses the court's concerns—such as filing timeously and presenting genuinely novel legal points. However, given the case's stage, a new application would need strong justification and immediate action.

Later judgments citing this (4)

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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, "Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others; Law Society of Kenya (Intended Amicus Curiae)", 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/2023/63/eng@2023-07-14

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