The Court of Appeal has withdrawn an earlier ruling in the long-running legal battle over the National Social Security Fund (NSSF) Act after admitting it mistakenly ruled on an application that was no longer before the court.
In a fresh decision delivered on Friday, a three-judge bench acknowledged that its May 29 ruling was issued in error after it inadvertently determined the wrong application.
The judges explained that several applications had been filed under the same appeal, resulting in a mix-up that saw the court rule on a matter that had already been overtaken by events.
“We, therefore, find that the ruling erroneously delivered by this Court on 29th May 2026 is amenable to setting aside in the interests of justice, and we accordingly set aside the said ruling in its entirety,” the bench said.
This last decision has effectively invalidated the May 29 decision and reverted the matter to its previous status.
Under the current situation, there is no Court of Appeal decision, either dismissing or approving of NSSF’s application to suspend an Employment and Labour Relations Court judgment that had declared the NSSF Act, 2013 unconstitutional.
It should be noted that the Court has confirmed that the sole outstanding application before the Court was an application by the Kenya Export Floriculture, Horticulture and Allied Workers Union to be admitted as a party to the appeal.
In making this decision, the Court said that allowing the erroneous decision would defeat the principles of natural justice because both sides were not given a chance to contest the matter.
The judges said it was important for the error to be rectified in order to uphold public confidence in the administration of justice.
The Court of Appeal has now scheduled July 3, 2026, to deliver its ruling on the union’s application before the substantive appeal proceeds.
The latest development comes just weeks after NSSF directed employers to continue deducting and remitting contributions under the enhanced rates despite the legal dispute surrounding the 2013 Act.
The Fund has maintained that the law remains operational based on an earlier Court of Appeal decision delivered in February 2023 and that the ongoing proceedings have not affected the current contribution rates.
For now, employers will continue remitting NSSF deductions under the existing framework as the legal battle over the constitutionality of the NSSF Act, 2013 continues before the courts.