Listen to This Article Enhance your reading experience by listening to this article.

Chief Justice Martha Koome is expected to empanel a Bench of judges to hear an appeal petition seeking to stop a government decision to increase National Social Security Fund (NSSF) contributions from Thursday, March 9, 2023.

The move comes after the Supreme Court Registrar, Bernard Kasavuli yesterday forwarded the file to the CJ’s office to enable her appoint judges to determine the lawsuit lodged by 6,000 pensioners.

“I direct that this matter be referred to the President of the Court to constitute a Bench to hear and determine the notice of motion application on record filed by the appellants. Once the decision of the court is made parties will be notified on the same,” Kasavuli said.

Seeking orders

Kasavuli said that the parties will also be informed on the ruling date by the bench to be appointed.

The applicants are seeking a conservatory order to bar the government from implementing the Court of Appeal decision that paved way for the increase of the NSSF contributions.

The directives by the apex court registrar were issued after the NSSF Board of Trustees, the Retirement Benefits Authority and the Federation of Kenya Employees (FKE) the Attorney General and other parties who are sued in the case confirmed they had filed all their pleadings in the matter as earlier directed by the court.

Over 6,000 pensioners through the County Pensioners Association petitioned the top court in the country wanting it to set aside the decision of the appellant court dated February 3, 2023 and declare mandatory contributions to NSSF unconstitutional.

The petitioners through lawyer Muthomi Thiankolu wants the Supreme court to issue orders barring the NSSF Board of Trustees, the Retirement Benefits Authority and the Federation of Kenya Employees (FKE) from increasing workers’ monthly deductions which is set to kick off as from March 9, 2023 pending the hearing and determination of the case.

Irreparable harm

“The public will suffer substantial and irreparable harm (including but not limited to a run-on pension schemes superior to the NSSF) unless this Honourable Court stops the implementation of the impugned Act pending the hearing and determination of the Applicant’s appeal,” Lawyer Muthomi argues.

They challenge the decision on grounds that the Court of Appeal in its decision misinterpreted and misapplied various provisions of the Constitution when it allowed a ten-fold increase to Sh 2,068 in workers’ monthly contributions.  “We seek the court to suspend the impugned implementation of the Court of Appeal decision as there is serious threat of monopoly and emasculation that the impugned Act (especially sections 18, 19, 20 and 71) poses to the entire pensions industry—specifically, the threat of mass transfers of employees from superior pension schemes to the NSSF,” the County Pensioners Association states in their court papers.

It is the County Pensioners Association argument that the conservatory orders they seek will not cause any harm, damage or prejudice to the government as allowing the state to implement the impugned NSSF Act during the pendency of their appeal would aggravate the miscarriage of justice already occasioned on them.