Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 7 of 2013· [2015] KECA 942 (KLR)

Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd

Court of Appeal
24 February 2015
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
2,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that Sasanra's regulator lawfully imposed a levy on Saccos without prior consultation, reversing a High Court decision that had quashed the invoice.

What this practically means

#

Executive summary

#
The Sacco Societies Regulatory Authority appealed a High Court ruling (Sergon, J., 17th August 2012) which had allowed Biashara Sacco Society Ltd's judicial review application and quashed, by certiorari, an invoice demanding Kshs. 136,603 as Sacco Societies levy on deposits, and prohibited the Authority from demanding the levy. The respondent argued the levy amounted to double taxation, was imposed without consultation or a hearing, and that Section 15 of the Sacco Societies Act, 2008 was not mandatory. The Court of Appeal restated that judicial review concerns the decision-making process, not the merits, and a review court cannot substitute its opinion for that of the statutory decision-maker. It held that Section 15 required only publication of the imposed levy in the Kenya Gazette, which the Authority did on 21st December 2010; there is no statutory requirement to gazette an intention to levy and consult beforehand. The Court further found, contrary to the High Court's finding, that the Authority had in fact conducted countrywide consultations and sensitization at which the respondent was represented and raised no objection; KUSCCO's sole complaint concerned the rate, not the Authority's power to levy. Certiorari therefore had no basis. Prohibition was also wrongly granted: it cannot affect an invoice already issued and served, nor restrain the Authority from its lawful statutory duties. The Court allowed the appeal, set aside the High Court ruling, dismissed the respondent's application, and awarded the appellant costs of the appeal and in the High Court.

Key legal issues

#
01

Scope of judicial review remedies

Holding

Judicial review concerns the decision-making process, not the merits; the court cannot substitute its opinion for that of the statutory decision-maker.

Reasoning

Relying on its own precedents (Kunste Hotel, Biren Amritlal Shah, Mboya, KEC v Gathenji), the Court held that review examines whether the decision followed the prescribed procedure and natural justice, not whether the levy itself was wise or correct.

p. 4
02

Whether prior consultation was statutorily required before imposing the Sacco levy

Holding

Section 15 of the Sacco Societies Act requires only publication of the imposed levy in the Gazette; no prior consultation of stakeholders is statutorily mandated.

Reasoning

Section 15(1) uses permissive language ('The Authority may by order published in the Gazette, impose a levy') and sets out the procedure; the appellant complied by publishing on 21st December 2010. The High Court erred in reading in a consultation requirement.

p. 5
03

Whether certiorari properly issued against the invoice

Holding

Certiorari should not have issued; the appellant followed the statutory procedure, so there was no basis for quashing the invoice.

Reasoning

Certiorari quashes decisions made without or in excess of jurisdiction or in breach of natural justice. The invoice was issued pursuant to Section 15 after gazettement, and the Court found the statutory procedure was adhered to.

04

Whether prohibition properly issued

Holding

Prohibition was wrongly granted: it cannot affect an already-issued invoice nor restrain the appellant from its lawful duties under Section 15.

Reasoning

Prohibition looks to the future and forbids only acts a body lacks jurisdiction to perform. The invoice had already been issued and served, and demanding the levy under Section 15 was a lawful duty.

05

Whether the appellant breached natural justice by failing to consult

Holding

The appellant did conduct countrywide consultations and sensitization; the respondent was represented and raised no objection, and KUSCCO's complaint concerned only the rate.

Reasoning

From attendance lists on record, the respondent's officers attended the consultations. KUSCCO's sole complaint was about the rate, not the Authority's power to levy. Reviewing the rate downwards was within the appellant's discretion under Section 15.

p. 5

Legal principles established

#
  • In judicial review proceedings a court is concerned only with the decision-making process, not the merits of the decision, and may not substitute its own opinion for that of the public entity.
  • Only an order of certiorari can quash a decision already made, and it will issue only where the decision was made without or in excess of jurisdiction or in breach of natural justice.
  • Prohibition orders look to the future and cannot be issued to affect what has already been done or to restrain a body from carrying out its lawful statutory duties.
  • Where a statute prescribes the procedure for imposing a levy (gazette publication) and confers a discretion, there is no additional statutory requirement of prior consultation before publishing the final levy.

Court orders

#
  1. 1.Appeal allowed
  2. 2.High Court's ruling dated 17th August, 2012 set aside
  3. 3.Respondent's application dismissed
  4. 4.Appellant to have costs of the appeal and costs in the High Court

Authorities

#

Legislation

  • Sacco Societies ActSection 15(1) and (2)
  • Co-operative Societies Act
  • Civil Procedure RulesOrder LIII Rule 3(1)

Cases cited (5)

  • Ismael S. Mboya & 2 others v Mohammed Haji Issa & another
    Civil Appeal No. 232 of 2004

    Scope of certiorari, prohibition and mandamus as prerogative remedies against public bodies; prohibition looks to the future only.

  • Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge & 9 others
    Civil Appeal No. 266 of 1996

    Only certiorari can quash a decision already made; it issues for excess or absence of jurisdiction or breach of natural justice.

  • Commissioner of Lands v Kunste Hotel Ltd.
    Civil Appeal No. 234 of 1995

    Judicial review concerns the decision-making process, not private rights or the merits of the decision.

  • R v Secretary of State for Education and Science exparte Avon County Council
    (1991) 1 ALL ER 282

    Purpose of judicial review is to ensure fair treatment by the authority.

  • Biren Amritlal Shah & another v Republic & 3 others
    Civil Appeal No. 186 of 2004

    A review court cannot substitute its own opinion for that of the public entity charged by law to decide.

On appeal from
High Court of Kenya at Nyeri
Misc. Applic. No. 40 of 2011
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an appeal from the High Court (first appeal on the ruling in a judicial review miscellaneous application)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (8)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Sacco Societies Regulatory Authority v Biashara Sacco Society Ltd", Case Analysis (2015). Civil Appeal 7 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/942/eng@2015-02-24

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