A Nairobi Court of Appeal has set aside an earlier ruling that dismissed an application by the National Social Security Fund (NSSF) seeking to suspend a judgment that declared the NSSF Act 2013 unconstitutional.

Justices Wanjiru Karanja, Kathurima M’Inoti and Pauline Nyamweya, on May 29, 2026, had declined to grant stay orders sought by the NSSF Board of Trustees pending the hearing of its substantive appeal.

The application arose from a September 19, 2022, judgment by the Employment and Labour Relations Court (ELRC), which declared the NSSF Act, 2013, unconstitutional, null and void.

In the new ruling delivered on Friday, June 26, 2026, the three-judge bench stated that they erred and that the ruling that the court delivered on May 29, 2026, was on a different application, which was not a live issue.

The court noted that the public confidence in the administration of justice is at stake; it delivered a May 29, 2026, ruling on an application which was not live and on which the parties had not been heard.

Further, they state that it is a constitutional imperative that parties should be given the opportunity to be heard before any decision is made affecting their rights or interests.

In addition, the bench avers that the application dated September 23, 2024, which was the subject of the hearing, remains undetermined, and it is in the interests of justice that the said application be determined timeously to progress the hearing and determination of the remitted appeal.

“We therefore find that the ruling erroneously delivered by this court on May 29, 2026, is amenable to setting aside in the interests of justice, and we accordingly set aside the said ruling in its entirety,” the bench ruled.

The NSSF Act 2013 introduced a phased contribution structure based on workers’ earnings, leading to substantially higher deductions. For many salaried employees, the new system resulted in monthly deductions running to thousands of shillings.

Under the older law, NSSF contributions were fixed at Ksh200 from the employee and Ksh200 from the employer every month, totalling Ksh400.