https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1254

National Social Security Fund Board of Trustees v Kenya Tea Growers’ Association & 13 others; Trade Unions (Cotu & 3 others (Interested Parties) (Civil Appeal (Application) E656 of 2022) [2026] KECA 1254 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1254 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E656 of 2022 W Karanja, K M'Inoti & P Nyamweya, JJA July 3, 2026 Between National Social Security Fund Board of Trustees Appellant and Kenya Tea Growers’ Association 1st Respondent Agricultural Employers' Association 2nd Respondent Kenya County Government Workers Union 3rd Respondent Hon Attorney General 4th Respondent The Cabinet Secretary for Labour Social Security and Services 5th Respondent Retirement Benefits Authority 6th Respondent Competition Authority of Kenya 7th Respondent Kenya Quarry & Mine Workers Union 8th Respondent Kenya Building, Construction, Timber Furniture & Allied Workers Union 9th Respondent Kenya Union of Entertainment & Music Industry Employee 10th Respondent Union of National Research Institutes of Kenya (UNIRISK) 11th Respondent Kenya Glass Workers Union 12th Respondent Nkauraki Edwin Lesidai & 89 others 13th Respondent Kenya Plantations & Agricultural Workers Union 14th Respondent and Trade Unions (Cotu Interested Party Employers (Fke) ………………………… 2Nd Interested Party Kenya Ports Authority Interested Party Img Media/Image-1.Jpg}}Association Interested Party Workers Union Interested Party (Application for joinder of the Proposed Interested Party in Appeal No. E656 of 2022 from the Judgment and Decree of the Employment & Labour Relations Court at Nairobi (Nderi, Wasilwa & Mbaru, JJ.) dated 19th September 20202inELRC Pets. No. 38 of 2014 consolidated with Pet. Nos. 34, 35,49 and 50 of 2014 Petition 38, 34, 35, 49 & 50 of 2014 (Consolidated) ) Ruling 1.This ruling determines the Notice of Motion dated 23rd September 2024, and taken out by the proposed Interested Party, the Kenya Export, Floriculture, Horticulture and Allied Workers Union (the applicant). 2.The applicant seeks two substantive prayers, namely:i.That the Kenya Export Floriculture, Horticulture & Allied Workers Union be joined as an interested party; andii.That Kenya Export Floriculture, Horticulture & Allied Workers Union be allowed to file submissions on the appeal. 3.The application is taken out under Article 25(c) and 50 (1) of the Constitution, section 3(1) of the Court of Appeal (Organisation & Administration) Act, sections 3A and 3B of the Appellate Jurisdiction Act and rules 2 and 44 of the Court of Appeal Rules and is supported by a supporting affidavit sworn on 22nd September 2024 and two further affidavits sworn on 14th October 2024, all by Mr. David Benedict Omulama, the applicant’s Secretary General. 4.Before delving into the merits National Social Security Fund Act, No. 45 of 2013, (the 2013 Act) which received presidential assent on 24th December 2014 and commenced on 10th January 2015. Among others, the 2013 Act repealed the existing National Social Security Fund Act, Cap 258. 5.Immediately thereafter, five petitions were filed challenging the constitutionality of the 2013 Act. Two of those petitions were filed in the High Court in Nairobi, one in the Employment and Labour Relations Court (ELRC) in Nairobi, and two in the ELRC in Nakuru. By an order dated 6th June 2014, the High Court transferred the petitions filed before it to the ELRC after finding that they raised matters relating to employment and labour and were, therefore, properly within the remit of the ELRC under Article 162(2) (a) of the Constitution. 6.At the ELRC, the Petitions were consolidated, heard and determined vide a ruling delivered on 19th September 2023 by an uneven bench (Nderi, Wasilwa & Mbaru, JJ). The ELRC found, among others, that it had jurisdiction to entertain the petitions; that there was no evidence of sufficient public participation prior to enactment of the 2013 Act; that the 2013 Act was unconstitutional because it had implications on County finances and yet there was no concurrence from the Senate; and that the Act unlawfully created a monopoly in the provision of pension and social security services. 7.The appellant, the National Social Security Board of Trustees, was aggrieved by the judgment of the ELRC and preferred an appeal to this Court. By a judgment dated 3rd February 2023, the Court (Okwengu, Warsame & Mativo, JJA) held that the ELRC did not have jurisdiction in the matter and further that enactment of the 2013 Act did not require the concurrence of the Senate. Accordingly, the Court allowed the appeal, but directed each party to bear their own costs. 8.The 1st respondent (Kenya Tea Growers Association), the 2nd respondent (Agricultural Employers’ Association) and the 4th Interested Party (County Pensions Association) were aggrieved and escalated the dispute to the Supreme Court. By a judgment dated 21st February 2024 the Supreme Court held, among others, that in exercising its jurisdiction over disputes emanating from employment and labour relations, the ELRC could determine the constitutional validity of a statute and that what that court could not do was to proceed as though it were the High Court acting under Article 165 of the Constitutionand declare a statute unconstitutional in matters outside or peripheral to employment and labour relations. Further, that having held that the ELRC did not have jurisdiction, this Court ought not to have delved into and determined the issue of the concurrence of the Senate. Accordingly, the Supreme Court allowed the appeal, set aside the judgment of this Court, and remitted the matter back to this Court for hearing and determination on substantive merits and on priority basis. On costs, the Court directed each party to bear its own costs. 9.It is apposite to note at this stage that the applicant now before the Court was not a party to the proceedings and did not participate in the ELRC, this Court and the Supreme Court. It was only after the Supreme Court remitted the appeal to this Court that the applicant’s interest in the litigation was piqued. 10.Back to the application before the Court, the applicant, represented by its Secretary General, Mr. Omulama, states that it is a trade union of employees in the floriculture, horticulture and allied sectors and that its members are contributors and beneficiaries of the 2013 Act. It adds that the 2013 Act seeks to enhance contributions by employers and employees to the Fund, which is beneficial to the applicant’s members because it guarantees them a better safety net in retirement. For that reason, the applicant claims to have a direct interest in the appeal justifying joinder as an interested party, so as to defend the interests of its members. 11.It is also contended that under Article 22 of the Constitution, the applicant is entitled to approach the Court for enforcement of its rights. Lastly, the applicant argues that unless it is admitted in the appeal, its members will suffer prejudice and irreparable loss if they are denied the opportunity to be heard and the outcome of the appeal is against their interest. 12.The above position is reiterated in the applicant’s written submissions and supplementary submissions dated 14th October 2024 and 20th January 2025, respectively. On why the applicant was seeking to join the proceedings so late in the day, the applicant submits that while it was aware of the litigation, it did not have legal capacity because its registration was stayed by the ELRC and it had first to litigate on the registration all the way to the Supreme Court. The applicant also submits that it is neither affiliated to, nor does it have any working relations with any of the other trade unions in the appeal and, therefore, the interests of its members will not be catered for. 13.The application is opposed by Kenya Tea Growers Association (1st respondent), and Agricultural Employers Association (2nd respondents), vide a replying affidavit sworn by Ms. Lindah Oluoch, the 1st respondent’s Executive Officer, on 8th October 2024 and written submissions dated 22nd October 2024. Those respondents, represented by Mr. Obura, learned counsel, question the applicant’s identity, existence and capacity to join the appeal, as well as the competence of the deponent to the applicant’s affidavits. It is contended the applicant’s alleged members were neither identified nor ascertainable and that while the litigation had taken more than ten years in three different levels of the courts, there is no plausible explanation why the applicant is seeking to join the litigation as an interested day so late in the day. 14.It is the 1st and 2nd respondents’ contention that seven of the respondents to the appeal are duly registered trade unions and that the 1st interested party, the Central Organisation of Trade Unions (COTU), is an umbrella trade union organisation and that those parties would articulate all the issues affecting workers in the appeal. Further, that the applicant has neither demonstrated how its participation in the appeal would assist the Court nor the prejudice it would suffer if it was not joined to the appeal. 15.Relying on the ruling of this Court in Muungano Wa Wanavijiji Akiba Mashinani Trust v. Kihiu & 3 Others [2023] KECA 946 (KLR), the 1st and 2nd respondents submit that the applicant has failed to satisfy the joinder parameters, such as identifiable and proximate personal interest or stake in the appeal; that joinder will resolve all the matters in dispute; and that joinder will not vex the other parties or convolute the appeal. The decision of the Supreme Court in Muruatetu & Another v. Republic & Others [2017] KESC 12 KLR is cited in support of the submission that the fact that Article 22 of the Constitution allows access to the court is not the basis for joinder of an interested party in proceedings. 16.It is further submitted that the applicant’s alleged interest in the appeal is peripheral to the appeal; that the applicant has not demonstrated anything new that it would add to assist the Court in the appeal; and that imposition of contribution by the 2013 Act was general to all employees rather than exclusive to members of the applicant. 17.The 4th Interested Party, represented by Dr. Thiankolu, SC., and Mr. Njoroge, learned counsel, joined in opposing the application, vide a replying affidavit sworn on 9th October 2024 by its Secretary, Mr. Charles Ikenye Muiruri, and written submissions dated 24th October 2024. The substance of the response is that the applicant has not satisfied the relevant principles for joinder, such as demonstration that joinder would assist the Court to effectively and completely determine all the issues in dispute; presentation of a clear, identifiable, substantial and proximate interest or stake in the appeal; prejudice or irreparable harm in the event of non-joinder; demonstration of new and relevant issues not addressed by the other parties to the appeal; and the cogent case that the applicant intends to advance in the appeal. In support, the 4th Interested Party relies on the decisions of the Supreme Court in Muruatetu & Another v. Republic & Others (supra) and Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 others [2015] eKLR and the decision of this Court in Appollos Kennedy Mwangi v. Margaret Wanjiku Chege & 3 thers [2019] eKLR. 18.The 4th interested party further submits that the applicant had failed to identify or tender evidence of its alleged members, contributors and beneficiaries under the Act. This party also contends that there has been inordinate delay in making the application for joinder, noting that the Supreme Court upheld the applicant’s registration way back in January 2020, but it took the applicant four years to apply for joinder. It is contended that the applicant had not offered any explanation for the delay. 19.The application for joinder is also opposed by the appellant, the National Social Trust Fund Board of Trustees, represented by Mr. Ngatia, SC. The appellant filed a replying affidavit sworn by its Managing Trustee/ Chief Executive Officer, Mr. David Koross who deposed that since making the application for joinder, the applicant was dissolved on 10th December 2025 and ceased to exist as a trade union. He annexed to the affidavit a Certificate of Dissolution of the applicant duly signed by the Registrar of Trade Unions. 20.We have carefully considered the application for joinder, which we surmise turns on two issues only, namely, whether the applicant has satisfied the conditions for joinder, and whether the applicant still has legal personality to enable it to join this appeal. 21.In Muruatetu & Another v. Republic & Others (supra), the Supreme Court reiterated that joinder is not a right of a party, but is at the discretion of the court and that an applicant must present sufficient grounds to satisfy the court of the need to make an order for joinder. The Supreme Court held that an applicant for joinder must:i.set out the personal interest or stake in the matter, which must be clearly identifiable and proximate enough, rather than peripheral;ii.identify clearly the prejudice to be suffered in the event of non-joinder, which must not be remote; andiii.set out the case or submissions that he intends to make and demonstrate their relevance and the fact that they are not a mere replication of the position by the other parties. 22.In the application before the Court, the interest or stake identified by the applicant is that it is a trade union with members who contribute to the fund. The prejudice is that the decision of the Court may affect the members negatively if they are not heard. The applicant has, however, singularly failed to present even an outline of the case it intends to make, to show how unique or different it is from that of the other parties, many of whom are trade unions like itself, including the umbrella organisation of trade unions, the 1st Interested Party. 23.Looking at the application and the submissions in support, we are satisfied that the applicant has not presented sufficient reasons to enable us exercise our discretion in its favour, particularly taking into account that it is seeking to join the litigation so late in the day. In particular, the applicant has not demonstrated that its interests will not be articulated in a litigation replete and teeming with trade unions, unless it is made a party. 24.There is another compelling reason why we cannot, in the circumstances of this appeal, exercise our discretion in favour of the applicant, who we feel has not been candid in explaining its patently inordinate delay in making the application for joinder. The applicant attributes its failure to apply for joinder earlier to the litigation it was involved in regarding its registration. 25.The record indicates that after the Registrar of Trade Unions declined to register the applicant, it challenged that decision in the then Industrial Court and by a judgment dated 11th February 2014, the court ordered the registration of the appellant. The applicant was duly registered as a Trade Union on 17th February 2014. The 14th respondent in this appeal (KWAPU) lodged an appeal against the decision of the Industrial Court, by then renamed the Employment and Labour Relations Court. Pending the hearing and determination of the appeal, KPAWU applied for stay of execution of the decision of 11th February 2014. By a ruling dated 29th April 2014, the ELRC granted a stay of execution. 26.We must emphasise that the order of stay of execution did not have the effect of deregistering or cancelling the applicant’s registration, which had already been effected on 17th February 2014. As the ruling of the ELRC made clear, what was stayed were subsequent actions. 27.This Court dismissed KPAWU’ appeal on 12th May 2017.Similarly, the Supreme Court dismissed KWAPU’s further appeal on 23rd January 2020, thus upholding the applicant’s registration. As correctly pointed out by the 4th Interested Party, the applicant has not explained why it took a whole four years to apply for joinder, after the decision of the Supreme Court upholding its registration. 28.Be that as it may, from the record the applicant was registered continuously from 17th February 2014, and the order of stay of execution did not undo or affect that registration. There was nothing stopping it from applying for joinder and participating in the litigation leading to this appeal. 29.In his affidavit sworn on 14th October 2024, Mr. Omulama confirms that the applicant was aware of the litigation it is seeking to join, as early was when the matter was before the ELRC. He deposes as follows in paragraph 10 of that affidavit:“10.That…I confirm that the proposed interested party (the applicant) developed an interest in the matter way back when it was still in the Employment and Labour Relations Court at Nairobi but the interested party was incapacitated by numerous appeals against its registration by the 14th respondent in this appeal.” (Emphasis added). 30.In view of what we have stated above, there is no candid and valid explanation why the applicant had to wait for over ten years to seek to join litigation that it knew about all along. 31.Lastly, the affidavit sworn by the appellant, which the applicant has not controverted, indicates that the applicant’s registration as a trade union was dissolved on 10th December 2025. 32.Section 28 of the Labour Relations Act, No 14 of 2007 provides for cancelation or suspension of the registration of a trade union if it is dissolved. By dint of section 29 of the same Act, a trade union which has passed a resolution to dissolve is required to give a notice to that effect to the Registrar of Trade Unions within 14 days of the resolution. Upon receipt of the notice of dissolution, the Registrar is required to issue a certificate of dissolution and register the dissolution. Under section 29(3) the dissolution of the trade union takes effect from the date of its registration. 33.The appellant has exhibited a certificate of the applicant’s dissolution. Indeed, the fact of the dissolution of the applicant and its lack of capacity in law has been confirmed by the ELRC (Wasilwa, J.) in a ruling delivered on 23rd April 2026 in David Benedict Omulama and 5 Others v. Registrar of Trade Unions & Others [2026] KEELRC 1030 (KLR).Accordingly, the evidence on record indicates that the applicant has ceased to exist as a legal personality and, therefore, there is no basis, even if it had satisfied the required parameters for joinder, for adding a legally non-existent party to this appeal. 34.Ultimately, the application for joinder and leave for the applicant to file submissions in the appeal is dismissed with costs to the appellant, the 1st and 2nd respondents, and the 4th Interested Party. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.W. KARANJA...................................JUDGE OF APPEALK. M’INOTI...................................JUDGE OF APPEALP. NYAMWEYA...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.