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Court of AppealPartially AllowedCivil Appeal No. 119 of 2014· [2015] KECA 827 (KLR)

National Social Security Fund Board Trustees & 2 others v Central Organization Of Trade Unions (K) [2015] KECA 827 (KLR)

Court of Appeal of Kenya
13 February 2015
RNR. N. NambuyeWilliam OukoW. OukoKMK. M'inoti
4,386 words in judgment
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The bottom line

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The Court of Appeal confirmed that once appointed, NSSF trustees cannot be recalled at will and mandamus cannot enforce duties under a repealed law.

What this practically means

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Executive summary

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The Court of Appeal (Nambuye, Ouko and M'inoti, JJ.A) allowed a consolidated appeal (Civil Appeals Nos. 119 and 131 of 2014) against an order of mandamus issued by Odunga, J. on 8th April 2014, compelling the Cabinet Secretary for Labour to appoint and gazette COTU's replacement nominee to the NSSF Board of Trustees. The court framed two questions: whether a nominating body can recall and substitute an appointed trustee outside the statutory removal procedure, and whether mandamus can enforce a duty under a repealed statute. On the first, the court held that once trustees are nominated, appointed and gazetted, they serve three-year terms and can only be removed for cause under section 8(3) of the NSSF Act, 2013; neither the Cabinet Secretary nor the nominating body has a residual power of recall, since trustees owe accountability to members of the Fund rather than to the nominating body, and the Act's purpose is to give trustees secure tenure. On the second, applying Kay v Goodwin and National Planners Ltd, the court held that a repealed statute is obliterated as if never passed and cannot ground a mandamus. The extracted order of 9th April 2014, the only valid order after the amended order was expunged, referred expressly to the repealed Cap 258. COTU also had no legal right to the appointment and the Cabinet Secretary no legal duty, no vacancy having arisen. The High Court judgment was set aside, with costs to the appellants.

Key legal issues

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01

Power of a nominating body to recall and replace a trustee

Holding

A nominating body has no power to recall a trustee at will; a vacancy must arise in the manner contemplated by the Act before a replacement can be appointed.

Reasoning

The Act deliberately restricts grounds of removal under section 8(3) to create secure tenure shielding trustees from undue influence, since trustees are accountable to members of the Fund, not the nominating body. Reading in a residual power of recall would defeat the purpose of the Act and render section 8(3) superfluous, contrary to the basic rule of statutory interpretation.

p. 7
02

Mandamus to enforce a duty under a repealed statute

Holding

A repealed statute ceases to exist and cannot be the basis of an order of mandamus, unless the repealing Act provides otherwise.

Reasoning

Applying Kay v Goodwin, National Planners Ltd and Bennion, the court held repeal obliterates the statute as if it never existed, save for actions concluded while it was in force. The extracted order of 9th April 2014, the only valid order, referred to the repealed Cap 258, so the mandamus compelled performance of a non-existent duty.

p. 6
03

Availability of mandamus absent legal right and legal duty

Holding

Mandamus requires a legal right in the applicant and a corresponding legal duty in the public body; it cannot compel action contrary to the law.

Reasoning

The court applied the principle in Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge. Since no vacancy existed and the grounds in section 8(3) had not arisen, the Cabinet Secretary had no duty to appoint a replacement; issuing mandamus would have compelled him to act unlawfully.

p. 7

Legal principles established

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  • Once an Act of Parliament is repealed it ceases to exist completely unless the repealing Act provides otherwise, and a repealed law cannot form the basis of an order of mandamus.
  • Once appointed, NSSF trustees can only be removed for cause under section 8(3); neither the Cabinet Secretary nor the nominating body has any power to remove a trustee outside those prescribed circumstances.
  • No mandamus can issue to compel an authority to act contrary to the law; the applicant must show a legal right to performance of a legal duty.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court dated 8th April 2014 set aside
  3. 3.Appellants to have costs of the appeal

Authorities

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Legislation

  • National Social Security Fund Act, Cap 258 (repealed)section 6; section 4; First Schedule clause 6
  • National Social Security Fund Act, 2013 (No. 45 of 2013)sections 2, 5, 6, 8(3), 10(3), 10(4), 72(1); First Schedule
  • Court of Appeal Rulesrule 103
  • Land Disputes Tribunal Act No. 18 of 1990sections 7 and 8

Cases cited (4)

  • Kay v Goodwin
    6 Bing. 576
  • National Planners Ltd v Contributories Etc
    AIR 1958 PH 230
  • Republic v Attorney General & 2 Others Ex Parte Peter Mungai Kimani & Another
    HC JRC No. 415 of 2013
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge
    CA No. 266 of 1996
On appeal from
High Court of Kenya at Nairobi
Misc. App. No. 21 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Constitution and rule 103 of the Court of Appeal Rules (consolidation of appeals)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "National Social Security Fund Board Trustees & 2 others v Central Organization Of Trade Unions (K) [2015] KECA 827 (KLR)", Case Analysis (2015). Civil Appeal No. 119 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/827/eng@2015-02-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.