A jurisdictional analysis and critique of the Court of Appeal decision in Nairobi Civil Appeal No. 656 Of 2022 (The NSSF Case)

The Court of Appeal aptly gave the synopsis of the appeal before it. For clarity, it would only be appropriate if I replicate the synopsis in the manner which the Court did having in mind that the Court is composed of a bench of intellectuals with vast knowledge and experience. The matter arose from five consolidated petitions before the High Court (Petition Nos. 34, 35, 38, 49 & 50 of 2014). Three out of these five petitions (Petitions No. 34, 35 & 38 of 2014) were initially filed at the Constitutional and Human Rights Division of the High Court at Nairobi but were later transferred by the High Court to the ELRC, Mumbi J reasoning that the matter pertained to issues related to Social Security and Employment and properly fell within the jurisdiction of the Employment and Labour Relations Court.

The gravamen of the Petition was identified by the ELRC bench in the following words:

‘…. The gravamen of the petition is for the court to find the enactment of the National Social Security Act No. 45 of 2013 (NSSF Act) in its entirety to be in violation of the Constitution of Kenya 2010 and the court to declare it null and void; and in the alternative to find and declare that some of the provisions of the new Act contravene the constitution and the Competition Act and provide the reliefs sought in the consolidated petition’. (Emphasis mine)

That said, it should be noted that the main question that was before the Court of Appeal was the question or issue of the jurisdiction of the ELRC bench to hear and decide on the consolidated petitions. The Appellants, on the one hand, questioned the jurisdiction of the ELRC bench and further faulted the bench for failing to find that the disputes pleaded in the Petitions did not relate to the existing employer-employee relationship. The same arguments were advanced by the Cabinet Secretary for Labour, Social Security and Services, the Competition Authority and the Attorney-General with whom I am in congruence that the constitutionality of an Act of Parliament is a preserve of the High Court under Article 165 (3) (d) (i) of the Constitution.

The Respondents, on the other hand, argued on the contrary. Kenya Tea Growers Association and AEA through their Counsel advanced the arguments that the Petitions were initially filed before the High Court but were later transferred to the ELRC by the High Court on grounds that social security and employment issues were within the jurisdiction of the ELRC and that the Appellants never opposed the transfer.

Interestingly, the Respondents relied on two South African decisions, namely, GCABA v Minister of Safety and Security and Others CCT 64/08 [2009] ZACC 26 and Solidarity and Others v South Africa Broadcasting Corporation, Case No. J 1343/16 while advancing the argument that the ELRC Court has concurrent jurisdiction with the High Court in matters touching on alleged or threatened violation of fundamental rights arising from employment and Labour Relations and any dispute over the constitutionality of any executive or administrative act, threat or conduct by the state in its capacity as an employer. They also urged the Appellate Court that in the event it finds that ELRC had no jurisdiction, it should allow the cross-appeal and refer the matter to the High Court for trial because his clients should not suffer due to the court’s decision to transfer the petitions to the ELRC.

The Kenya Federation of Employers and Kenya County Government Workers Union adopted the above arguments. KCGWU through their Counsel added that objections on jurisdiction must be raised at the earliest opportunity possible and not during an appeal. In this, they cited Owners of Motor Vessel Lilian S v Caltex Oil (Kenya) Ltd [1989] eKLRand Section 16 of the Civil Procedure Act.[1]

The appellate court’s findings and analysis

Before I proceed further, I take this earliest opportunity to fault KCGWU for trying to mislead the Court. while I agree with them on the first part of their argument that jurisdiction should be raised at the earliest opportunity possible, that cannot be interpreted to act as a deterrence to an aggrieved party from raising the competence of the Court when it comes to matters concerning jurisdiction to hear a matter on appeal. It is in fact in this case which they cited that the judge noted that a question of jurisdiction could be raised during proceedings and ‘as soon as that is done, the Court should hear and dispose of that issue without further ado’.

It is therefore not plausible an argument that the question of jurisdiction cannot be raised upon appeal. The Court of Appeal built on this and stressed that jurisdiction can be raised at any stage of the proceedings in the High Court, on appeal and even in the Supreme court for the first time. It further added that it could be raised by any of the parties or suo moto by the Court and once that is done, the Court would do well and examine it and render a considered ruling on it.

In paragraph 22, the Appellate bench identified three ingredients that must co-exist for a Court to have the competence to hear and determine a matter. The three elements in the Court’s wisdom include:

  • Proper constitution as regards numbers and qualifications of members of the bench, and that no member is disqualified for one reason or another;
  • Subject matter being within the jurisdiction of the Court and that there is no feature in the case which prevents the Court from exercising jurisdiction; and
  • Legality of the case instituted before the Court initiated by due process and upon fulfilment of any condition precedent to the exercise of jurisdiction.

It went ahead to identify the effect of a decision rendered by a Court which was wrongly infused of jurisdiction in the following words:

‘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’.

Jurisdiction emanates from the law. It springs from the Constitution and therefore any decision reached without jurisdiction is rendered a nullity and treated as one that did not occur. This begs several questions, firstly, did the ELRC have the jurisdiction to entertain the matter? The answer is negative on my side. Secondly, what is the legal cure for a decision that was rendered by a bench that did not have the competence to do so on trial? The Appellate Court, and I concur, believe that ‘the issue under consideration in the consolidated petition was the constitutionality of the impugned Act and some specific provisions of the Act’ which did not in any way arise from an employer-employee relationship. The Court noted that the ELRC Act was enacted to resolve employer-employee disputes as provided under Article 162 (a) of the Constitution. While it held that constitutional issues could be determined by the ELRC if they arose from an employer-employee relationship, the same was not the case in the appeal as it did not arise from such.

The Appellate Court went further to appreciate that questions regarding the constitutionality of a Statute is the province of the High Court through the provision of Article 165 (3) (d) (i) of the Constitution and therefore the ELRC bench fell into a grave error when it failed to appreciate that it was litigating on an area it had no jurisdiction on.

One important takeaway when it comes to the question of the constitutionality of an Act before the ELRC, the Court has itself that the Constitutional issues arise from an employer-employee relationship; and further must note that the employment cases are not the appropriate mechanism for the ventilation of the grievances of the litigant’s constitutional issues except where the issues arise in an employer-employee dispute.

It is noteworthy that jurisdiction is determined based on pleadings before consideration of the substantive merits of the case, a position which was properly discussed by the Court of Appeal. The Court cited the South African Constitutional Court in Vuyile Jackson Gcaba Versus Minister for Safety and Security First & Others Case CCT 64/08 [2009] ZACC 26 which stated that:

‘Jurisdiction is determined on the basis of the pleadings…and not the substantive merits of the case… In the event of the Court’s jurisdiction being challenged at the outset (in limine), the appellant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say the facts asserted by the applicant would also sustain another claim, cognizable only in another court. If, however the pleadings, properly interpreted, establish that the applicant is asserting a claim…, one that is to be determined exclusively by… {another court}, the High Court would lack jurisdiction…’

The Appellate Court concluded that the ELRC bench wrongfully assumed jurisdiction even after it had rightfully and correctly noted that the petitions challenged the constitutional validity of the legislative process leading to the enactment of a legislation and or some of its provisions and stated in paragraph 41 that proceedings conducted by a Court without jurisdiction are a nullity. It proceeded to note that an award or judgment and or orders arising from such proceedings of a Court acting without jurisdiction are also nullities.

That notwithstanding, the Court, after declaring that the proceedings before the ELRC bench were a nullity since it is assumed they were never conducted in the first place, proceeded to make determinations on the substantive issue of the petitions and/ or appeal. This was unnecessary. It beats logic as to the rendering of the jurisdiction of the ELRC bench worthless. I believe that Mr Obura’s (Respondent’s Counsel) plea that in the event the Court found that the ELRC bench had no jurisdiction, it should refer the matter back to the High Court was justifiable and was the only just thing the Appellate Court was expected to do. It should have referred the matter to the High Court to hear the petitions on the first instance before it could be heard on appeal. The Appellate Court was being sarcastic in this situation by deciding on a matter that they had assumed was never heard in the first place—purely hot air!

The Appellate Court in denying the contents of the counterclaim claimed that the parties were allowed to address the Court on the question as to jurisdiction after the directions by the chief justice and that it was the appropriate time to make the plea. The appellate Court’s argument is untenable for the fact that even though the parties ‘fiercely defended their respective positions on jurisdiction’, the order of transfer was made by the Court. The High Court proceeded on the wrong premises and arrived at a wrong conclusion and the Court’s per incuriam decision and error cannot be meted upon innocent the Respondents.


My argument is that the same way the Appellate Court found that the ELRC had no jurisdiction is the same way the Appellate Court lost jurisdiction to determine the substantive issue of the appeal once it had made that determination. As it stands now, and perhaps through the oldest and the oft-cited case of Owners of Motor Vessel Lilian S(supra), the effect of lack of jurisdiction is now elementary law. Njarangi J (as he then was) stated that:

‘Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given’.

Having concluded that the ELRC bench lacked jurisdiction, the appellate Court should have stopped instantly and referred back the matter to the High Court for a fresh trial. Declaring that the bench had no jurisdiction then further proceeding to look into the issue of whether the entrenchment of the Act required the concurrence of both houses of Parliament to me, is in their own words an ‘overkill’. The inquiry should have ended there.

While it is trite knowledge that the main objective in civil litigation is to reap the fruits of judgment, a litigant who has lost should feel that even though he did not win, justice prevailed, and a fair judgment was rendered. In this case, I am of the view that the Respondents were not fairly heard and that could only mean one thing, the Court of Appeal decision is easily challengeable in the Supreme Court.The writer is a law student at the University of Nairobi. He has established himself as a researcher with vast interests in Constitutional law and constitutional affairs, Human Rights law and Public International law. He can be reached via adamsllayton01@gmail.com

[1] Owners of Motor Vessel Lilian S v Caltex Oil (Kenya) Ltd [1989] eKLR.

Law student at the University of Nairobi, Faculty of Law. Researcher with vast interests in Constitutional law, transformative constitutionalism and constitutional reforms, Human Rights law and Public International law. adamsllayton01@gmail.com