Kenya's long-running battle over National Social Security Fund (NSSF) contributions has escalated sharply, after the Law Society of Kenya (LSK) declared that there is currently no legal foundation for enforcing the disputed higher deduction rates. The intervention adds fresh uncertainty to a dispute already worth Sh715 billion, and puts employers, employees, and NSSF officials squarely in the crosshairs of the courts.
LSK Says Court Ruling Against NSSF Act Still Stands
In a statement issued by LSK president Charles Kanjama, the lawyers' body argued that the 2022 Employment and Labour Relations Court (ELRC) decision — which found the NSSF Act, 2013 unconstitutional — remains legally binding. According to the society, this is because the Court of Appeal recently refused to suspend that judgment while a full appeal is pending.
LSK was blunt in its assessment, stating there is "no judicial basis supporting the continued enforcement of the enhanced contribution framework."
Omtatah Heads to Court, Seeks Contempt Charges Against NSSF Bosses
The LSK statement landed just as Busia Senator Okiya Omtatah filed a fresh application at the Labour Relations Court. Omtatah wants to be joined as an interested party in the constitutional case and is pushing for contempt proceedings against top NSSF officials, accusing them of defying binding court orders by continuing to enforce the higher rates.
His petition asks the court to:
- Suspend the enhanced NSSF deductions immediately
- Revert contributions to the old flat-rate model of Sh200 per month for both employer and employee
How Contributions Have Changed Under the NSSF Act, 2013
The dispute centers on the shift from a flat Sh200 monthly contribution to a tiered, income-based system. Under current rates:
- Employees earning Sh25,000 pay Sh1,500
- Those earning Sh35,000–Sh50,000 pay Sh2,100
- Earners in the Sh50,000–Sh75,000 bracket pay Sh3,000
- Those earning Sh75,000–Sh100,000 pay Sh4,500
- Workers on Sh100,000 pay Sh6,000
- Those earning Sh200,000 and above hit the ceiling of Sh6,480
Employers must match these amounts, pushing the combined maximum monthly contribution to Sh12,960 per employee.
A Court Battle With Several Twists
The legal saga has moved through multiple court levels:
- September 2022 — The ELRC ruled the NSSF Act, 2013 unconstitutional following a challenge from employers and other stakeholders.
- February 2023 — The Court of Appeal reversed that ruling on jurisdictional grounds, paving the way for the enhanced rates to take effect.
- February 2024 — The Supreme Court overturned the Court of Appeal's decision and referred the matter back for a substantive hearing — effectively reviving the original 2022 ruling, according to LSK.
- May 29, 2026 — The Court of Appeal declined to grant NSSF a stay of the 2022 judgment, a decision LSK says leaves no valid order shielding the enhanced contribution framework from challenge.
NSSF and COTU Cry Foul Over "Monumental Error"
NSSF and the Central Organisation of Trade Unions (COTU) have pushed back hard against the May 29 ruling, arguing the judges ruled on an application that was no longer live before the court.
Senior Counsel Fred Ngatia, representing NSSF, wrote to the Court of Appeal Registrar describing the ruling as a "monumental error," insisting the judges had instead been deliberating a separate matter — a union's request to be joined as an interested party — not the original 2022 stay application.
COTU Secretary-General Francis Atwoli echoed this position, maintaining that the original stay application had already been overtaken by events and was no longer a "live controversy" capable of determination by the time the ruling was issued.
COFEK Joins the Fray Over June 5 Directive
Adding to the legal confusion, the Consumers Federation of Kenya (COFEK) has filed a separate case challenging an NSSF directive issued on June 5, instructing employers to keep remitting contributions at the enhanced rates — despite the unresolved Court of Appeal ruling.
What's at Stake for Employers and Employees
LSK's intervention significantly raises the legal risk for employers who continue deducting contributions under the disputed framework. The society warned that:
- Employers who keep enforcing the higher rates could face legal liability if the ELRC judgment is ultimately upheld
- Affected workers may be entitled to pursue refunds or restitution for unlawfully deducted contributions
- Officials found in deliberate breach of court orders could face contempt proceedings, with penalties ranging from fines to asset seizure and even imprisonment
For its part, NSSF maintains that the enhanced contribution regime is lawful and has directed employers and employees to continue complying with the current rates.
Bottom Line
With the Law Society of Kenya, a sitting senator, trade unions, and a consumer rights body all weighing in from different — and often conflicting — angles, Kenya's pension contribution framework remains in a state of legal limbo. Until the Court of Appeal delivers a substantive ruling on the matter, employers and employees alike face continued uncertainty over which NSSF rates actually carry the force of law.
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