The Court of Appeal in Civil Appeal No. 656 of 2022 The National Social Security Fund Board of Trustees v. Kenya Tea Growers Association & 14 others held that the Employment and Labour Relations Court (“ELRC”) has no jurisdiction to determine the constitutionality of a statute unless the dispute arises out of an employer-employee relationship.

The appeal arose from a petition filed in the ELRC where the petitioner had challenged the National Social Security Fund Act 2013 (“the Act”) for being unconstitutional. ELRC nullified the Act.

On appeal, the Court of Appeal found that challenging the constitutionality of a statute is a substantive claim brought under Article 165 (3) (d) (i) of the Constitution which therefore falls under the jurisdiction of the High Court. The High Court has jurisdiction over all matters concerning the interpretation of the Constitution including whether any law is inconsistent with the Constitution. The Court of Appeal held that the jurisdiction of the ELRC is limited to hearing and determining disputes arising from an employer-employee relationship.

The Petitioner had challenged the legality of the Act on the basis that it was passed by the National Assembly without the consent of the Senate despite concerns from the county governments. The appellate court held that the functions of social security and pension plans fall within the powers of the national government under Part 1 of the Fourth Schedule in the Constitution. The bill did not affect the functions and powers of county governments, so there was no need for it to be introduced in the Senate.

This decision means that any challenge to the validity of law falls within the jurisdiction of the High Court and not specialised courts (ELRC and Environment and Land Court). Article 162 (2) of the Constitution establishes these two specialised courts as ‘courts with the status of the High Court’. This decision deals a blow to the jurisdiction they have assumed in many disputes. The parties have a right to appeal to the Supreme Court to decide the question as to whether specialised courts can assume jurisdiction under Article 165 (3) (d) (i) of the Constitution.