Republic V Commissioner For Co-operative Development & 69 Others Ex Parte Katelembo Athiani Maputi Ranching & Farming Co-operative Society Limited  eKLR
|Judicial Review 178 of 2015||23 Mar 2016|
High Court at Machakos
Republic v Commissioner for Co-operative Development & Co-operative Commissioner Machakos County, Wilson Masila Muema & 67 others Ex Parte Katelembo Athiani Maputi Ranching & Farming Co-operative Society Limited
Republic V Commissioner For Co-operative Development & 69 Others Ex Parte Katelembo Athiani Maputi Ranching & Farming Co-operative Society Limited  eKLR
The mandate of the Co-operative Commissioner in a County
Republic v Commissioner for Co-operative Development & 69 others Ex Parte Katelembo Athiani Maputi Ranching & Farming Co-operative Society Limited  eKLR
Judicial Review Case No.178 of 2015
In The High Court of Kenya at Machakos
March 23, 2016
Reported by Njeri Githang’a & Winnie Matiri
The Applicant was Katelembo Athiani Farming and Ranching Co-operative Society Limited, which was a co-operative society registered under the Co-operative Societies Act. The Applicant averred that the 2nd Respondent, the Co-operative Commissioner in Machakos County, suspended the entire management committee by a letter dated August 10, 2015 in which he alleged that the elected management committee members had pending criminal cases in court. On August 10, 2015, the Applicant further averred that 2nd Respondent had advised the bank not to recognize the elected management committee and as a consequence its operations had been put to a halt.
The Applicant contended that the power to suspend an elected management committee lay with the 1st Respondent who was the Commissioner for Co-operative Development appointed under section 3 of the Co-operative Societies Act and only after conducting a duly constituted legal inquiry under section 58 of the Co-operative Societies Act. Further, that in the alternative, the power to remove or suspend an elected management committee was vested in the annual general meeting where all members could participate, and according to the Applicant’s bylaws (bylaw number 29), the 2nd Respondent had no powers to suspend the bona fide elected management committee.
It was the Applicant’s contention that it was being directed by two conflicting authorities the 1st Respondent and the 2nd Respondent, and therefore found it difficult to comply with their orders and directions.
It was further contended that it was necessary for County Governments to legislate relevant statutes to govern co-operative societies or in the alternative for Parliament to amend the Cooperative Societies Act to conform with the Constitutional provisions that devolved co-operative society’s functions to the County Governments. Further, that since the current Co-operative Societies Act did not have provisions for a county co-operative officer; the holder of that office was unrecognized in law and could not purport to enjoy duties not given to him by statute.
Consequently, on October 6, 2015, the Applicant filed a substantive application seeking orders of Judicial Review.
- What law prevailed where there was a conflict between national law and county law with respect to matters falling within the concurrent jurisdiction of both levels of government?
- Whether County Governments needed empowering legislation to exercise functions previously exercised by national government and which were transferred to County Governments under the Fourth Schedule to the Constitution.
- Who as between the Commissioner for Co-operative Development and the Co-operative Commissioner Machakos County had the mandate to exercise the powers of the Commissioner of Co-operatives under the Co-operative Societies Act?
- Whether the 2nd Respondent acted in excess of his powers if any, in suspending the management committee of the Applicant.
- Whether the Applicant was entitled to the reliefs sought.
Devolution–County Governments-functions and powers of County Government-respective functions of national and County Government-transfer of functions-whether County Governments needed empowering legislation to exercise functions previously exercised by national government and which were transferred to County Governments under the Fourth Schedule to the Constitution- Constitution of Kenya 2010, Article 186 and Article 187
Conflict of Laws – conflict of laws between a National Legislation and County Legislation – claim of conflict in legislations where there are concurrent functions between the National Government and the County Government – Constitution of Kenya, 2010 article 191
Civil Practice and Procedure-Judicial Review-Certiorari, prohibition and mandamus- whether the 2nd Respondent acted in excess of his powers if any, in suspending the management committee of the Applicant and the decision to be quashed-whether the Applicant was entitled to the reliefs sought-Civil Procedure Act (Cap 21) Section 3A; Civil Procedure Rules Order 53 rules 3 and 4
- Legislation made by parliament had the force of law throughout Kenya by virtue of article 94(5) of the Constitution. Under article 185 (2) of the Constitution, county assemblies were also given powers to make any laws that were necessary for the effective performance of the functions and exercise of the powers of the County Government under the Fourth Schedule. Such laws only had the force of law within the respective county.
- Where there was a conflict between national law and county law with respect to matters falling within the concurrent jurisdiction of both levels of government, article 191 provided that the national legislation prevailed if it was aimed at preventing unreasonable action by a county; if it provided for a matter that could not be regulated effectively by legislation enacted by the individual counties; and where it provided for a matter that required uniformity throughout Kenya.
- The Co-operative Societies Act was in that regard a national legislation and had the force of law throughout Kenya. The function of cooperative societies was however under the Fourth Schedule of the Constitution allocated to County Governments. Article 262 of the Constitution which provided for the transitional and consequential provisions set out in the Sixth Schedule that took effect on the effective date of the Constitution. That hiatus was therefore envisaged in the current Constitution.
- Part 2 of the Sixth Schedule to the Constitution was dedicated to existing obligations, laws and rights at the time of coming into force of the Constitution. All law in force immediately before the effective date continued in force and should be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with that Constitution.
- The function of co-operative societies was no longer a function of the national government, and therefore the Co-operative Societies Act which was still in force consequently had to be construed as applying to the regulation of co-operative societies at the County Governments, until a County Government had enacted its own law regulating co-operative societies, and that construction was the only one that made the Act conform with the provisions of the Constitution.
- The time limits for enacting legislation were provided in the Fifth Schedule of the Constitution with respect to certain laws required to be passed by Parliament. The time limits had not been set for County Governments to enact any particular legislation, either in the Constitution or by the County Governments Act. Therefore, pending the enactment of a county legislation to regulate co-operative societies by a county assembly, the Co-operative Societies Act continued to regulate co-operative societies in a County with the necessary alterations, modifications and exceptions.
- Section 24(1) (a) of the Transition to Devolved Government Act listed the existence of legislation relating to the function as one of the criteria for transfer of a function to a County Government. The mere fact that legislations were enacted before the current Constitution did not render them irrelevant. Section 7 of the Sixth Schedule to the Constitution required that all existing laws were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them into conformity with the current Constitution. Under section 2(3)(b) of the said schedule as read with Schedule 5 thereof laws relating to devolved government were to be enacted within three years.
- As much as the Fourth Schedule allocated functions to the National and County Governments, the two levels of government could have concurrent functions. Any residual function that might be retained by the national government could only be with respect to functions that were not expressly assigned by the Constitution to either the National or the County Governments.
- Article 187 gave the provision for transfer of functions from one level of government to another. A function or power of government of one level of government might be transferred to another level of government by agreement between the two levels of government. However, even then, the Constitutional responsibility for the performance of the function or exercise of the power remained with the level of government to which the function was assigned by the Constitution in general, and the Fourth Schedule in particular.
- The Fourth Schedule was clear that co-operative societies was wholly a function of County Governments, and there was no allocation of any aspect of regulation of co-operative societies assigned to the national level. Such concurrent jurisdiction existed in other functions such as health, agriculture and transport, where the aspects of policy and standard setting of those functions were allocated to national government.
- The Constitution also provided for a phased transfer of the functions to the County Governments in section 15 of the Sixth Schedule which provided that parliament should by legislation, make provision for the phased transfer, over a period of not more than three years from the date of the first election of county assemblies, from the national government to County Governments of the functions assigned to them under article 185.
- The Transition to Devolved Government Act was enacted to effect the above provision. The Act provided that the authority should, by notice in the Gazette at least thirty days before the first elections under the Constitution, identify functions which might be transferred to the County Governments immediately after the first elections under the Constitution. After the initial transfer of functions, every County Government should make a request in the prescribed manner to the Authority for transfer of other functions in accordance with section 15 of the Sixth Schedule to the Constitution. The authority should, upon the request of a County Government, determine whether a County Government met the criteria set out under section 24 that allowed the transfer of a function.
- Legal Notice 168 published in the Kenya Gazette Supplement No 116, transferred the function of co-operative societies to the Machakos County Government as with effect from August 9, 2013. The acts sought to be quashed were alleged to have occurred between July and August 2015, after the transfer of the function of co-operative societies to Machakos County Government. Consequently, the function of co-operative societies was now wholly and exclusively transferred to the Machakos County Government. The financial and human resource allocations would therefore follow the function, and were held and managed by the repository of the function. The objectives of devolution set out in the Constitution and service delivery by County Governments would accordingly not be achieved unless County Governments were allowed to undertake the functions assigned to them. Citizens must also know which level of government they could expect to receive different services from in order to hold the different levels of governments accountable.
- The powers and functions set out in the Co-operative Societies Act including those of commissioner of co-operatives were in the present case to be exercised by the County Government of Machakos through its officers, and specifically through the 2nd Respondent, who was the Machakos County Co-operative Commissioner.
- Under section 7(2) of the Sixth Schedule of the Constitution, a law that was in effect immediately before the effective date assigned responsibility for that matter to a particular state organ or public officer; and a provision of the Constitution that was in effect assigned responsibility for that matter to a different State organ or public officer, the provisions of the Constitution prevailed to the extent of the conflict.
- The relevance of, and continued exercise of powers and functions by the 1st Respondent, the commissioner for co-operative development, was therefore only in those counties where either the function of co-operative societies had not been transferred or where there was an agreement between a County Government and national government that the commissioner for co-operative development should continue to exercise the functions and powers conferred on it under the Co-operative Societies Act in relation to that particular County Government. In the absence of those circumstances, the powers of the commissioner for co-operative development were to be exercised by the County Governments and officers of the County Government in accordance with, and to give effect to the above-cited provisions of the Constitution.
- Section 58 of the Co-operative Societies Act was inapplicable to the circumstances of the instant case, as it was evident that an inquiry under the said section was to be made when the subject thereof was the by-laws, and working and financial conditions of a co-operative society. Section 73 of the Act was also inapplicable as the 2nd Respondent’s sole reason and motivation as indicated in his letter for suspending the members of the Applicant’s management committee was the cases in court in which the Applicant’s management members had been charged. There was no indication nor any evidence brought by the Applicant and 1st Respondent, that the 2nd Respondent had been informed or was aware that the said members of the management committee had misapplied funds or been guilty of breach of trust, which were the actions that trigger an inquiry under section 73 of the Act.
- The provisions of section 28(7) of the Act were not expressly subjected to an inquiry, and granted the Commissioner of Co-operatives and by extension the 2nd Respondent, wide discretion to suspend officers charged with criminal cases in Court. The 2nd Respondent provided copies of the charges by which the members of the Applicant’s management committee were charged with various criminal offences, and the exercise of that discretion was not unreasonable. The failure on the part of the 2nd Respondent to hold an inquiry was therefore not ultra vires.
- Prohibition looked to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision was made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition could not quash a decision which had already been made; it could only prevent the making of a contemplated decision. Prohibition was an order from the High Court directed to an inferior tribunal or body which forbade that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It did not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings.
- The order of mandamus was of a most extensive remedial nature, and was, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertained to his or their office and was in the nature of a public duty. Its purpose was to remedy the defects of justice and accordingly it would issue, to the end that justice might be done, in all cases where there was a specific legal right or no specific legal remedy for enforcing that right; and it might issue in cases where, although there was an alternative legal remedy, yet that mode of redress was less convenient, beneficial and effectual. The order must command no more than the party against whom the application was legally bound to perform.
- Where a general duty was imposed, a mandamus could not require it to be done at once. Where a statute, which imposed a duty, left discretion as to the mode of performing the duty in the hands of the party on whom the obligation was laid, a mandamus could not command the duty in question to be carried out in a specific way. Those principles meant that an order of mandamus compelled the performance of a public duty which was imposed on a person or body of persons by a statute and where that person or body of persons had failed to perform the duty to the detriment of a party who had a legal right to expect the duty to be performed. An order of mandamus compelled the performance of a duty imposed by statute where the person or body on whom the duty was imposed failed or refused to perform the same but if the complaint was that the duty had been wrongfully performed i.e. that the duty had not been performed according to the law, then mandamus was wrong remedy to apply for because, like an order of prohibition, an order of mandamus could not quash what had already been done.
- An order of certiorari could quash a decision already made and an order of certiorari would issue if the decision was without jurisdiction or in excess of jurisdiction, or where the rules of natural justice were not complied with or for such like reasons. In the present appeal the respondents did not apply for an order of certiorari and no order sought could be granted. Judicial review proceedings did not deal with the merits of a decision but with the decision making process as held in various judicial decisions. The purpose of the remedy of judicial review was to ensure that the individual was given fair treatment by the authority to which he had been subjected, and that it was not part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Therefore concerns raised by the Applicant and 1st Respondent about the sham elections of new management committee members of the Applicant, or by the 2nd Respondent about the defamatory and libelous allegations by the Applicant could not be addressed. Those were issues of private and substantive rights that should be litigated in the appropriate causes of action.
Application dismissed with costs to the 2nd respondent