NAIROBI, Kenya — The Law Society of Kenya (LSK) has warned employers and state agencies against continuing enhanced National Social Security Fund (NSSF) deductions, arguing that a court judgment declaring the NSSF Act, 2013, unconstitutional remains in force pending the determination of an appeal.
In a statement dated June 17, 2026, LSK President Charles Kanjama said the Court of Appeal’s decision on May 29, 2026, declining to grant a stay of execution meant there was no legal order suspending the effect of the Employment and Labour Relations Court (ELRC) judgment.
“The ELRC judgment declaring the NSSF Act, 2013, unconstitutional remains operative,” LSK said, adding that employers should revert to the contribution framework that existed before implementation of the contested law.
The dispute over the NSSF Act, 2013, has been in court since 2014 after employees and employers challenged provisions requiring mandatory registration and contributions under the new pension framework. The ELRC initially found several provisions unconstitutional, including concerns around mandatory participation and the legislative process used to enact the law.
The Court of Appeal later overturned that decision on jurisdictional grounds in 2023, allowing the Act to continue operating. However, the Supreme Court in February 2024 found that the ELRC had jurisdiction to hear the dispute and sent the matter back to the Court of Appeal for determination on the substantive issues.
Following the Supreme Court decision, the ELRC judgment regained legal effect pending the final outcome of the appeal. The Court of Appeal later declined NSSF’s request to suspend that position while the appeal proceeds.
Rule of law argument
LSK grounded its position on the constitutional principle that court orders and judgments remain binding unless overturned, reviewed, or stayed through lawful processes.
The society cited previous judicial decisions emphasising that court orders cannot be ignored by parties dissatisfied with them.
“Court orders are not decorative pieces of paper with court seals and signatures. They must be obeyed unless lawfully set aside,” LSK quoted from previous court decisions.
The lawyers’ body warned that continued deductions under a framework declared unconstitutional could expose employers to legal challenges, including claims over unlawful salary deductions and possible restitution.
“Employers who continue making deductions under the NSSF Act, 2013, do so at their own peril,” LSK said.
NSSF position challenged
The dispute has created uncertainty for employers and employees after NSSF maintained that the enhanced contribution rates under the 2013 law should continue pending final determination of the case.
The disagreement has also triggered fresh legal action, with the Consumers Federation of Kenya (COFEK) challenging NSSF’s directive to employers to continue implementing the enhanced contribution framework.
The matter now places the Court of Appeal at the centre of determining the future of Kenya’s pension contribution system. The final ruling will determine whether the 2013 NSSF Act will remain the governing framework or whether the country returns to the previous regime.
