Court recalls own ruling after error in NSSF appeal

The Court of Appeal has set aside its own ruling after finding it had mistakenly determined an application that was no longer before the court in the long-running National Social Security Fund (NSSF) dispute involving employers and workers' representatives.

In a ruling delivered in Civil Appeal (Application) No. E656 of 2022, the appellate court acknowledged that it had erroneously issued a decision on May 29, 2026, on an application for stay of execution that had already been overtaken by events.

The appeal stems from a judgment delivered by the Employment and Labour Relations Court (ELRC) on September 19, 2022, in a dispute involving the NSSF Board of Trustees, the Kenya Tea Growers' Association and other parties.

Following the ELRC decision, NSSF lodged an appeal and filed an application dated October 14, 2022, seeking a stay of execution. However, the Court of Appeal determined the substantive appeal on February 3, 2023, rendering the stay application spent.

The matter later reached the Supreme Court, which on February 21, 2024, remitted the appeal back to the Court of Appeal for determination on its merits.

By then, the only pending application before the appellate court was one filed by the Kenya Export Floriculture, Horticulture and Allied Workers Union on September 23, 2024, seeking to be joined as an interested party.

The union's application was heard on January 23, 2025, and reserved for ruling.

However, on May 29, 2026, the Court of Appeal mistakenly delivered a ruling on the obsolete stay application instead of deciding the union's joinder application.

After lawyers for NSSF pointed out the error, the Attorney General filed an application seeking to have the ruling recalled and set aside.

The three-judge bench held that the mistake amounted to an "error apparent on the face of the record" because it determined an application that was no longer live while leaving the only pending application undecided.

The court said it had inherent powers under the Constitution, the Appellate Jurisdiction Act and the Court of Appeal Rules to recall and correct its own decisions where obvious errors would otherwise result in injustice.

The judges further observed that allowing the erroneous ruling to stand would undermine public confidence in the administration of justice, particularly because parties had not been heard on the application that was mistakenly determined.

Consequently, the court unanimously vacated the May 29 ruling, made no order as to costs because the mistake originated from the court itself, and fixed July 3, 2026, as the date for delivering its ruling on the union's joinder application.

Once that application is determined, the remitted appeal is expected to proceed to a hearing on its substantive merits, in line with the Supreme Court's directive that the matter be handled on a priority basis.

The court also noted concerns raised by NSSF's lawyers that some parties had acted on the mistaken belief that the court had declined to grant a stay of execution.

By setting aside the erroneous ruling, the court restored the legal position to what it was before the mistake occurred, meaning there has been no valid determination on the stay application.