Republic v Commissioner for Co-operatives & 3 others Exparte John Githaiga Gachungwa & 2 others [2020] KEELRC 1562 (KLR)
The bottom line
#Kenya's ELRC refused to force the Co-operatives Commissioner to pay ex-employees because they proved no unsatisfied balance with account statements.
What this practically means
#Executive summary
#Key legal issues
#Whether mandamus lies against the Commissioner of Co-operatives and the Liquidator
Mandamus refused; the decree was found substantially satisfied and the sums claimed were higher than those determined by the court in the primary suit
The court held there was substantial compliance with the orders of the court in the primary suit. The judgment of Ongaya J. placed the Respondents' obligations within their respective statutory duties under the Co-operative Societies Act and did not make them employers of the claimants. Absent statements of account demonstrating the unsatisfied balance, the court was not persuaded mandamus should issue against anyone.
Whether the 1st Respondent failed his statutory supervisory duty by approving a scheme of distribution allocating liabilities to splinter societies
The court found the Respondents performed their statutory duties by approving the scheme of distribution, and the matter of who pays was resolved in the primary suit
The Respondents submitted that the 1st Respondent discharged his duty under the Co-operative Societies Act by approving a scheme of distribution that included the salaries and terminal benefits of the Ex parte Applicants, allocating them to the 18 splinter societies that inherited the assets. The court did not disturb this position, finding substantial compliance and that the judgment did not make the Respondents employers of the claimants.
Misjoinder of the Hon. Attorney General and the Principal Secretary Ministry of Industrialization & Cooperative Development
The 3rd and 4th Respondents were struck out as they had no involvement in the satisfaction of the decree and were not parties when leave was sought
The court found nothing in the satisfaction of the decree requiring the involvement of the Hon. Attorney General or the Principal Secretary, and noted that when leave was sought the PS was not a party. Their names were therefore struck out from the proceedings.
Legal principles established
#- A judgment in which the court directs statutory officers to act within their statutory duties does not convert those officers into employers of the claimants
- Mandamus requires proof of an unsatisfied decretal sum, such as statements of accounts, before it can issue
Court orders
#- 1.The names of the 3rd and 4th Respondents struck out from these proceedings
- 2.The Judicial Review application dismissed with no order as to costs
- Jurisdiction invoked
- Judicial review jurisdiction under the law relating to orders of mandamus; arises from ELRC Case No. 102 of 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Commissioner for Co-operatives & 3 others Exparte John Githaiga Gachungwa & 2 others [2020] KEELRC 1562 (KLR)", Case Analysis (2020). Judicial Review Application dated 5th August 2019 (arising from ELRC Case No. 102 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1562/eng@2020-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.