The Court of Appeal has set aside its own ruling in a long-running dispute involving the National Social Security Fund (NSSF) after acknowledging that it mistakenly determined an application that had already been overtaken by events.
In its latest decision, the appellate court held that the ruling delivered on May 29, 2026 was based on an “error apparent on the face of the record” after it inadvertently ruled on an application for stay of execution filed by NSSF in October 2022 instead of determining a pending application by a trade union seeking to be joined in the appeal.
The dispute stems from Employment and Labour Relations Court (ELRC) Petition No. 38 of 2014, in which judgment was delivered on September 19, 2022. Following that judgment, NSSF lodged an appeal before the Court of Appeal and filed an application seeking to stay execution of the ELRC decision pending the outcome of the appeal.
However, the substantive appeal was determined by the Court of Appeal on February 3, 2023, rendering the stay application spent. The matter later proceeded to the Supreme Court, which, on February 21, 2024, remitted the case back to the Court of Appeal for determination on its merits, leaving only a separate application by the Kenya Export Floriculture, Horticulture and Allied Workers Union seeking to be enjoined as an interested party awaiting determination.
According to the case summary, the court mistakenly delivered its May 29 ruling on the obsolete stay application instead of the union’s joinder application, which had been heard by the parties and reserved for ruling. The error was attributed to the multiplicity of interlocutory applications filed during the appeal.
Following the discovery of the mistake, the Attorney General filed an application on June 10, 2026 seeking to have the erroneous ruling recalled and set aside, relying on the Constitution, the Appellate Jurisdiction Act and the Court of Appeal Rules.
In allowing the application, the appellate court cited previous decisions establishing that courts have inherent jurisdiction to correct obvious errors where failure to do so would occasion injustice or undermine public confidence in the administration of justice.
The judges unanimously found that the ruling had been issued on an application that was no longer live, while the application properly before the court remained undetermined.
The court further held that public confidence in the justice system would have been compromised had the error not been corrected because parties had not been heard on the application that was inadvertently determined.
Consequently, the Court of Appeal vacated the May 29 ruling, made no order as to costs on the basis that the mistake originated from the court itself, and fixed July 3, 2026 as the new date for delivering its ruling on the union’s joinder application.
Once the joinder issue is resolved, the remitted appeal is expected to proceed to hearing on its substantive merits in line with directions previously issued by the Supreme Court, which ordered that the matter be heard on a priority basis. The appeal will address the underlying employment and pension dispute after jurisdictional questions were settled.
The case summary also notes that counsel for NSSF had expressed concern that some parties had acted on the mistaken impression that the Court of Appeal had declined to grant a stay of execution. With the erroneous ruling now vacated, the legal position reverts to the status quo before the mistaken decision was delivered.
Read:Â COTU Accuses Private Pension Firms of Undermining NSSF in Heated Retirement Debate
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