By Nyang’au Araka
The Law Society of Kenya (LSK) has warned employers and state agencies to immediately stop making enhanced National Social Security Fund (NSSF) deductions.
LSK argues that the legal framework underpinning the deductions currently stands invalid following a recent Court of Appeal ruling.
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In a statement, LSK President Charles Kanjama said the Employment and Labour Relations Court (ELRC) judgment that declared the NSSF Act, 2013 unconstitutional remains in force after the Court of Appeal declined to grant a stay of execution on May 29, 2026.
The lawyers’ body said there is currently no court order suspending the ELRC decision, meaning employers have no legal basis to continue implementing the enhanced contribution rates introduced under the Act.
“Until the substantive appeal is heard and determined, the ELRC judgment remains operative and binding,” LSK said.
The society traced the long-running legal battle over the NSSF Act to 2014, when the ELRC declared several provisions of the law unconstitutional.
Although the Court of Appeal overturned that decision in February 2023 on jurisdictional grounds, the Supreme Court reversed the appellate court’s finding in February 2024 and returned the matter to the Court of Appeal for determination on its merits.
According to LSK, that effectively restored the force of the ELRC judgment pending the outcome of the appeal.
The society stressed that respect for court orders is a constitutional obligation and accused some stakeholders of advancing interpretations that undermine judicial authority.
“Court orders are not suggestions or advisory opinions but binding mandates that must be obeyed unless lawfully reviewed, varied, or set aside,” the statement said.
Mandatory obligation
Citing previous court decisions, LSK noted that obedience to court orders is mandatory and warned against attempts to alter the legal position through administrative directives or public pronouncements.
“The current legal position can only be altered through lawful judicial processes, not through circulars, press statements, or unilateral interpretations,” the society stated.
LSK’s position is that employers should immediately revert to the contribution regime that existed before the implementation of the NSSF Act, 2013.
It also noted that employers and workers remain free to make retirement savings through registered occupational pension schemes and private pension providers independent of the contested law.
The society further warned that employers who continue making deductions under the disputed framework could face legal consequences if the ELRC judgment is ultimately upheld.
“Employers who continue making deductions under the NSSF Act, 2013 do so at their own peril and may face legal liability,” LSK cautioned.
It added that employees subjected to what it termed unlawful deductions could pursue restitution claims in court.
The society said it is closely monitoring compliance and may institute contempt of court proceedings against individuals or entities found to be deliberately disregarding court orders.
“Obedience to court orders is not optional,” LSK said, warning that sanctions for contempt could include fines, sequestration of assets and imprisonment.
The dispute over the NSSF Act affects millions of Kenyan workers and thousands of employers, making the pending appeal one of the most consequential labour and social security cases in the country.
