The Court of Appeal has dismissed NSSF’s application to suspend the ELRC judgment that declared the NSSF Act, 2013 unconstitutional. In simple terms, the Court has refused to revive an invalid law through interim orders and has insisted that constitutional violations cannot be cured by fear‑mongering about alleged chaos in the pensions sector.
The judges reaffirmed the well‑known Rule 5(2)(b) test which states that an applicant must show both an arguable appeal and that, without stay, the appeal would be rendered nugatory. They accepted that the intended appeal raises at least one arguable point including whether the High Court mis‑characterised the NSSF Act, 2013 as social assistance under Article 43(3) rather than a contribution‑based pension scheme and whether the Bill needed Senate input under Articles 110 and 205. However, they were emphatic that arguability alone is not enough. The Fund had to demonstrate concrete, evidenced risk that a successful appeal would be worthless if stay was denied and it failed to do so.
Crucially, the Court called out NSSF’s alarmist claims of destabilisation, governance quagmire and catastrophic financial loss. The Board alleged paralysis of the Haba na Haba scheme, exposure of over 580,000 informal‑sector members and billions in contributions and even the freezing of emigration and burial grants but placed no audited accounts, actuarial reports or empirical evidence before the Court. Bare assertions could not satisfy the stringent nugatory test, especially where respondents showed that contributions have flowed under Cap 258 for nine years without crisis, refunds, or threats of non‑remittance.