By Kurian Musa
The latest court application filed by Busia Senator Okiya Omtatah Okoiti has once again thrust Kenya’s National Social Security Fund (NSSF) into the centre of a legal and constitutional debate whose implications extend far beyond courtrooms.
At stake is not merely a technical interpretation of judicial decisions, but a fundamental question: when courts speak, how should public institutions respond?
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On March 11, 2026, Omtatah moved to the Employment and Labour Relations Court (ELRC) seeking to join ongoing litigation surrounding the NSSF Act, 2013.
Omtatah is also asking the court to institute contempt proceedings against NSSF officials for allegedly continuing to implement a law that he argues should no longer be in force.
The application stems from a complex legal history that has unfolded over several years. In 2022, the ELRC declared the NSSF Act, 2013 unconstitutional.
A year later, the Court of Appeal overturned that decision, not necessarily because it disagreed with the substance of the ruling, but because it found that the ELRC lacked jurisdiction to determine the matter.
The legal landscape shifted again in 2024 when the Supreme Court restored the ELRC’s jurisdiction.
Now, Omtatah’s argument is that the Supreme Court’s decision effectively revived the original 2022 judgment, making it the prevailing legal position. If that interpretation is correct, he contends, NSSF should have ceased implementing the 2013 Act immediately.
NSSF, however, has continued with the phased implementation of contribution rates under the 2013 law.
The trigger for the latest litigation was a public notice issued in February 2026 announcing Year Four contribution rates.
Omtatah argues that the notice amounts to deliberate defiance of the courts and that workers and employers are being compelled to make contributions under a legal framework that should no longer be operative.
The implications are enormous. Millions of Kenyan workers contribute to NSSF every month, while employers are legally required to remit matching contributions.
The NSSF Act, 2013 significantly increased contribution levels compared to the older NSSF Act of 1965.
Consequently, the outcome of this dispute could affect payroll structures, employee deductions, employer obligations and the future administration of retirement benefits across the country.
Yet this matter should not be viewed simply through the lens of contribution rates. It is fundamentally a test of legal certainty.
Citizens, businesses and public institutions require clarity about which laws are in force and which court decisions are binding.
When multiple judgments are issued at different levels of the judiciary, interpretations can become contested. Resolving those disputes is precisely why courts exist. Until a court makes a definitive determination on Omtatah’s latest application, uncertainty will continue to linger.
Equally important is the issue of contempt.
Omtatah is asking the court to find NSSF officials personally liable for allegedly disobeying judicial orders. Such a finding would carry serious consequences, including the possibility of civil sanctions.
However, contempt is among the most serious allegations that can be levelled against public officials, and courts traditionally require a high threshold of proof before imposing penalties.
For this reason, the public should be cautious about drawing conclusions before the ELRC has heard all parties and delivered its ruling.
Senator Omtatah’s application contains legal arguments and allegations, but they remain untested.
NSSF will undoubtedly have an opportunity to present its own interpretation of the Supreme Court judgment and justify its continued implementation of the 2013 Act.
What is clear, however, is that this case transcends pension contributions. It speaks to broader questions about constitutional governance, institutional accountability and respect for judicial authority.
Whether the court ultimately sides with Senator Omtatah or NSSF, Kenyans deserve a definitive legal answer that eliminates uncertainty and restores confidence in the administration of one of the country’s most important social protection programmes.
The coming proceedings may well determine not only how much workers contribute to NSSF, but also how Kenya interprets and enforces the authority of its courts in the years ahead.
