The Salaries and Remuneration Commission (SRC) has been given powers to have a say in the salaries of the National Social Security Fund (NSSF) employees after the Court of Appeal overturned a ruling that had stripped it of the mandate.
Court of Appeal judges, in a judgment on February 28, ruled that NSSF is a public office and that its employees are public officers falling under the jurisdiction of SRC.
“Having found that NSSF is a public office, it cannot be gainsaid that any person holding an office in NSSF is a public officer.
“…members employed by NSSF and whose remuneration and emoluments are derived from such public funds are public officers whose salaries and emoluments are subject to the jurisdiction of the Commission,” the Court of Appeal ruled.
Its decision followed an appeal by the SRC after the Employment and Labour Relations Court ruled that NSSF employees fell outside the armpit of the SRC.
The lower court had ruled that the government was only a trustee in the NSSF and that the institutions generated revenues from investing funds it gets from workers’ deductions, rather than parliamentary appropriations.
“The employees of NSSF are not public officers within the meaning of Article 260 of the Constitution. Their remuneration and benefits are not payable directly from the consolidated fund or directly from money provided by parliament,” the labour court ruled.
SRC appealed the decision leading to the judgment by justices Asike-Makhandia, Agnes Murgor and Sankale Ole Kantai last week.
The Court of Appeal noted that being a State entity charged with the responsibility of managing pension contributions, NSSF accounts are liable to audit by the Auditor General, which makes it a public entity.
“On the basis of this assessment, we find that NSSF clearly falls within the category of a state corporation as defined under the State Corporation Act,” the appeal court said.
It also faulted the employment court conclusion that only funds going through the consolidated fund as what should be considered public funds as narrow, concluding that monies handled by NSSF are public funds.
The legal battles started over a decade ago after the SRC issued a circular to chief executives of State corporations and other statutory bodies, seeking to have a say through collective bargaining agreements (CBAs) between employers and unions.
The SRC circular sparked protests from the Kenya Union of Commercial and Food Allied workers who rushed to court, starting a case that has lasted over a decade.
