Washington Silvanus Washiali Khwale v District Co-opertaive Officer, Mumias, Attorney general Alloys Mandu, Isaac Ashuma, Moses Nabulindo & William Khakina (Civil Appeal 13 of 2014) [2014] KECA 183 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a co-operative chairman removed at a meeting that went beyond its agenda, confirming such decisions can be challenged through judicial review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in holding that judicial review was not available by adopting a narrow and restrictive interpretation of the scope of judicial review remedies
- 2.Whether the learned Judge overlooked the statutory provisions of the Co-operative Societies Act on the scope of the powers available to the Commissioner and whether the 1st respondent could invoke such powers
- 3.Whether the 1st respondent had been authorized by the Commissioner to convene the special general meeting
- 4.Whether the process adopted by the 1st respondent in convening the meeting and allowing items not in the agenda to be introduced and acted upon was lawful
- 5.Whether the minutes produced before the High Court, being unsigned and undated, were authentic
Key legal issues
#Whether the 1st respondent had authority to convene the special general meeting
The 1st respondent, as an officer on whom the Commissioner's powers had been conferred, had authority to convene the meeting on behalf of the Commissioner; the High Court was right on this point.
The Act defines the Commissioner as including any person on whom any of the Commissioner's powers have been conferred. The office includes officers acting on behalf of the Commissioner in the performance of that office. The appellant's complaint that only the Commissioner could summon the meeting therefore had no basis and was rejected.
Whether the removal of the appellant at the meeting was the act of a private entity not amenable to judicial review
The High Court erred: the resolutions removing the appellant flowed from a meeting convened by the 1st respondent exercising statutory power, and judicial review was available to question the irregularities.
The 1st respondent convened the meeting under authority donated by the Act with a specific agenda that did not include discussion of the committee's conduct. He presented the inspection report and precipitated the chain of events leading to resolutions on matters not on the agenda. A regularly convened meeting became irregular when extra items were introduced, and the convening officer, acting in his official capacity, was responsible for what ensued. Judicial review was therefore available.
Whether removal of officials could be discussed and effected where not on the agenda
The removal of the appellant and other officials at a meeting whose agenda did not include that item was irregular and the resulting decision was quashed.
The agenda had two specific items only: the inspection report and the way forward for the Union. The members instead chose to discuss the conduct of the management committee, removed the officials and conducted immediate elections. The Court held the meeting became irregular when items not on the agenda were introduced and discussed, warranting quashing of the resulting decision.
Legal principles established
#- A special general meeting convened under the Co-operative Societies Act becomes irregular when matters not on its agenda are introduced and acted upon, and the officer who convened it under statutory authority is answerable by way of judicial review for what transpires there
- A decision taken at a meeting convened by a public officer exercising statutory powers is not insulated from judicial review on the basis that it was carried by private members
Court orders
#- 1.The decision reached at the special general meeting of the union held on 19th September, 2011 leading to the removal of the appellant from his position as chairman of the union is quashed
- 2.Fresh elections of the union be held within 90 days of the date of the judgment, with the appellant participating as a candidate if he so desires
- 3.Costs of the appeal and of the court below are granted to the appellant, to be paid by the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- HCMISC J.R. No. 44 of 2011
- Jurisdiction invoked
- First appellate jurisdiction under the Appellate Jurisdiction Act over an appeal from the High Court exercising judicial review supervisory jurisdiction
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The meeting which had been regularly convened became irregular when items not on the agenda were introduced and discussed.
He was acting in his official capacity and judicial review was certainly available to the appellant to question irregularities that took place at the meeting.
In the event we quash the decision reached at the special general meeting of the union held on 19th September, 2011 that led to the removal of the appellant from his position as chairman of the union.
In the circumstances of the matter we order that fresh elections of the union be held within 90 days of the date of this judgment where the appellant will participate as a candidate if he so desires.
We grant costs to the appellant here and in the court below to be paid by the 1st respondent.
Issues in the judgment
#The judgment describes the two comparative cases as 'persuasive' but does not make clear whether the court itself relied on them or merely narrated them before reaching its own conclusion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Washington Silvanus Washiali Khwale v District Co-opertaive Officer, Mumias, Attorney general Alloys Mandu, Isaac Ashuma, Moses Nabulindo & William Khakina (Civil Appeal 13 of 2014) [2014] KECA 183 (KLR)", Case Analysis (2014). Civil Appeal No. 13 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/183/eng@2014-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.