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ELRCDismissedJudicial Review Application dated 5th August 2019 (arising from ELRC Case No. 102 of 2015)· [2020] KEELRC 1562 (KLR)

Republic v Commissioner for Co-operatives & 3 others Exparte John Githaiga Gachungwa & 2 others [2020] KEELRC 1562 (KLR)

Employment and Labour Relations Court
25 February 2020
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Ex Parte Applicants, over 395 former employees of the defunct Tetu Coffee Growers Co-operative Society Ltd, sought an order of mandamus compelling the Respondents to pay a judgment debt of Kshs. 27,718,055.45 plus interest arising from the judgment of Ongaya J. in ELRC Case No. 102 of 2015, together with consequential contempt proceedings under Section 30(1) of the Contempt of Court Act, 2016. The 1st Respondent (Commissioner of Co-operatives) opposed the application, deponing that the society in liquidation had no assets, having distributed them to 18 splinter societies under an approved scheme of distribution which allocated the staff benefits to those societies; the Respondents also faulted the non-joinder and non-service of the Liquidator. The Applicants submitted that a valid judgment bound the 1st and 2nd Respondents jointly and severally and that the 1st Respondent neglected his supervisory powers. The court struck out the names of the 3rd and 4th Respondents (the Hon. Attorney General and the Principal Secretary) as their involvement in satisfying the decree was unnecessary. On the merits, the court held that the judgment in the primary suit did not convert the Respondents into employers of the Applicants, that there had been substantial compliance with the court orders, and that the decree had been substantially satisfied. In the absence of statements of accounts demonstrating an unsatisfied balance, the court was not persuaded that mandamus should issue against anyone, since the sums owed per the earlier rulings and judgment were lower than claimed. The Judicial Review application was dismissed with no order as to costs.

Key legal issues

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01

Whether mandamus lies against the Commissioner of Co-operatives and the Liquidator

Holding

Mandamus refused; the decree was found substantially satisfied and the sums claimed were higher than those determined by the court in the primary suit

Reasoning

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.

p. 3
02

Whether the 1st Respondent failed his statutory supervisory duty by approving a scheme of distribution allocating liabilities to splinter societies

Holding

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

Reasoning

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.

p. 3
03

Misjoinder of the Hon. Attorney General and the Principal Secretary Ministry of Industrialization & Cooperative Development

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The names of the 3rd and 4th Respondents struck out from these proceedings
  2. 2.The Judicial Review application dismissed with no order as to costs

Authorities

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Legislation

  • Contempt of Court ActSection 30(1)
  • Co-operative Societies ActSection 68(1)(b)
  • Co-operative Societies Actgeneral statutory duties/powers

Cases cited (4)

  • Republic v Principal Secretary State Department of Interior & Principal Secretary Ex parte Awadh Salim & 12 Others
    [2018] eKLR
  • Republic v Town Clerk of Webuye County Council & Another
    [2014] eKLR
  • Republic v Ali and Another Ex parte The Standard Ltd & Baraza Ltd
    [2018] eKLR
  • James Samwel Mburu v Hon. A.G & Another
    [2017] eKLR
Jurisdiction invoked
Judicial review jurisdiction under the law relating to orders of mandamus; arises from ELRC Case No. 102 of 2015

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, "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.