https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11291

**Republic of Kenya** **In the High Court of Kenya at Nairobi** **Milimani Law Courts** **Judicial Review Division** **HCJR No. E188 of 2026** **KUSCCO Housing Cooperative Society Limited......................Applicant** ***-Versus-*** **Commissioner For Cooperative Development.....................Respondent** **Judgment** **Background** 1. This Judicial Review Application arises from the alleged failure, refusal and/or neglect by the Commissioner for Co-operative Development to register and give effect to the Applicant’s resolution passed at a Special General Meeting held on 10 September 2025 changing its name from *KUSCCO Housing Co-operative Society Limited*to*You & Me Housing Co-operative Limited,* despite the Applicant contending that all statutory requirements under the Co-operative Societies Act had been fully complied with. 2. According to the Applicant, the resolution to change its name was necessitated by the adverse publicity and reputational challenges associated with the Kenya Union of Savings and Credit Co-operative Limited (KUSCCO Ltd), whose financial difficulties and liquidation proceedings had allegedly caused confusion among members of the public, led to withdrawal of membership and adversely affected the Applicant's business operations and marketing activities. 3. The Applicant avers that following the Special General Meeting, it forwarded the requisite documents and amended by-laws to the Respondent for registration pursuant to Section 8 of the Co-operative Societies Act. It maintains that despite numerous follow-up letters dated 28 October 2025, 3 December 2025 and 15 May 2026, a formal demand dated 25 March 2026, a Notice of Intention to Sue (Form JR 1) dated 7tApril 2026 and a final demand dated 29 May 2026, the Respondent neither registered the amendment nor communicated any reasons for declining to do so. 4. The Applicant further states that the validity of the Special General Meeting held on 10 September 2025 and the resolutions passed therein had been challenged before the Co-operative Tribunal in *Tribunal Case No. E664 of 2025*, but the Tribunal upheld the validity of the meeting and thereby removed any legal impediment to the implementation of the resolution changing the Applicant's name. According to the Applicant, notwithstanding the Tribunal's determination, the Respondent continued to decline or fail to register the amendment. 5. The Applicant further relies on a subsequent resolution passed during its Annual Delegates Meeting held on 8 April 2026 reaffirming the proposed change of name, as well as a Petition dated 11 May 2026 signed by approximately two thousand members expressing dissatisfaction with the continued failure by the Respondent to effect the change of name. The Applicant contends that these developments were brought to the Respondent’s attention but elicited no administrative action. 6. The Applicant also filed a Supplementary Affidavit dated 7 July 2026, annexing, inter alia, correspondence from the Respondent dated 17 June 2026, which the Applicant contends was issued only after commencement of the present proceedings and after prolonged inaction. The Applicant maintains that even after satisfying the matters raised in that correspondence, the Respondent still failed to issue the Certificate of Change of Name. 7. Consequently, the Applicant instituted the present Judicial Review proceedings by way of an Originating Motion dated 10 June 2026 seeking orders THAT: 8. *This Honourable Court be pleased and do hereby grant the judicial review order of Mandamus to compel the Respondent to forthwith register and effect the Applicant’s resolution passed on 10th September 2025 changing its name from KUSCCO Housing Co-operative Society Limited to You & Me Housing Co-operative Society Limited and to issue a Certificate of Change of Name.* 9. *This Honourable Court be pleased and do hereby issue a Declaration that the Respondent’s failure, refusal and or neglect to perform the said statutory duty is unlawful, unreasonable and in violation of Article 47 of the Constitution and the Fair Administrative Action Act.* 10. *This Honourable Court do issue an order for compensation for the damages caused as a result of reputational damage and the inconvenience caused by the Respondent’s dereliction of duty on an indemnity basis.* 11. *Costs of this Application be awarded to the Applicant.* 12. *Such further and or other orders as this Honourable court may deem just.* 13. In support of the application, the Applicant submits that the Respondent has failed to discharge its statutory obligations under Section 8 of the Co-operative Societies Act. It argues that although the Act does not prescribe a specific period within which registration should be effected, administrative action must nevertheless be undertaken within a reasonable time as required by Article 47 of the Constitution, Section 4 of the Fair Administrative Action Act and Section 58 of the Interpretation and General Provisions Act. The Applicant contends that the Respondent's silence for over nine months, despite repeated demands and the absence of any communicated decision, amounts to unreasonable delay and an implied refusal to perform a statutory duty. In support of this proposition, reliance is placed on ***Joseph Kimemia Mbugua v Oriental Fire & General Assurance Co. Ltd [1977] KLR, Thambu Thura v Njagi M'Thuura [2009] eKLR****, and* ***Republic v Kenya National Examinations Council Ex parte Ian Mwamuli [2013] eKLR.*** 14. The Applicant further submits that it has satisfied all the conditions necessary for the grant of an order of mandamus. Relying on ***Republic v Baringo County Government & 2 Others Ex parte KTK Advocates [2018] KEHC 10109 (KLR),***it contends that there exists a public legal duty owed by the Respondent, that all conditions precedent have been fulfilled, that repeated demands were made, that the prolonged delay constitutes an implied refusal to act, and that there exists no other adequate remedy. It therefore urges the Court to issue a specific order compelling the Respondent to issue the Certificate of Change of Name rather than merely directing the Respondent to reconsider the application, arguing that any less specific relief would perpetuate the impugned delay. 15. Finally, the Applicant contends that the Respondent’s prolonged inaction has occasioned substantial prejudice, including withdrawal of members, loss of goodwill and business opportunities, reputational damage arising from continued association with KUSCCO Ltd, and expenditure incurred in pursuing compliance with the Respondent's statutory obligations. It therefore urges the Court to award appropriate compensation under Section 11(1)(j) of the Fair Administrative Action Act together with costs of the proceedings. 16. The record further shows that despite being duly served with the pleadings, the Respondent neither entered appearance nor filed any response within the timelines directed by the Court. An Affidavit of Service sworn on 6th July 2026 evidences service upon the Respondent. Consequently, when the matter came before the Court on 8th July 2026, the Court, noting the absence of any response from the Respondent, directed that the Applicant do file and serve its written submissions, whereupon judgment was reserved for 24 July 2026. The Applicant duly complied by filing its written submissions dated 8 July 2026. **Analysis and Determination** 1. The Court is of the view that the following issues arise for determination: 2. *Whether the Respondent was under a statutory duty to register and give effect to the Applicant's resolution passed on 10 September 2025 and the amended by-laws submitted pursuant to Section 8 of the Co-operative Societies Act.* 3. *Whether the Applicant has established the threshold for the grant of the reliefs sought.* 4. ***Whether the Respondent was under a statutory duty to register and give effect to the Applicant's resolution passed on 10 September 2025 and the amended by-laws submitted pursuant to Section 8 of the Co-operative Societies Act.*** 5. The central issue for determination is whether, upon the Applicant complying with the statutory requirements governing the amendment of its by-laws and change of name, the Respondent became subject to a statutory duty to register the amendment, give effect to the resolution passed on 10 September 2025 and issue the corresponding Certificate of Change of Name. 6. The Applicant’s case is principally founded upon Section 8 of the Co-operative Societies Act, Cap. 490 Laws of Kenya. Section 8(2) provides that: *No amendment of the by-laws of a co-operative society shall be valid until the amendment has been registered under this Act, for which purpose a copy of the amendment shall be forwarded to the Commissioner in the prescribed manner.* 1. The effect of Section 8(2) is twofold. First, Parliament expressly decreed that amendments to the by-laws of a co-operative society do not attain legal validity until they have been registered by the Commissioner. Secondly, the statute places upon the Commissioner the responsibility of considering and determining applications for registration once the proposed amendments have been forwarded in the prescribed manner. The registration of amended by-laws is, therefore, a statutory function conferred upon the Commissioner under the Act. 2. Equally relevant is Section 8(4) of the Co-operative Societies Act which provides that where a co-operative society changes its name, such change does not affect any rights or obligations of the society, nor does it render defective any legal proceedings commenced by or against it, all of which may continue under the society's new name. Parliament therefore expressly contemplated that a change of name merely alters the legal identity of the society without affecting its corporate existence, rights or liabilities. 3. Registration under Section 8 is an administrative function exercised pursuant to statute. Although the Act vests that function in the Commissioner, the discretion conferred is neither absolute nor unfettered. It must be exercised within the confines of the Constitution, the Co-operative Societies Act and the Fair Administrative Action Act. The Commissioner is therefore under a duty not only to consider an application presented before him but also to determine it within a reasonable time and in accordance with the law. 4. Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. That constitutional guarantee is given statutory effect by Section 4(1) of the Fair Administrative Action Act, which requires every administrator to ensure that administrative action is expeditious, efficient, lawful, reasonable and procedurally fair. Accordingly, even where a public authority is vested with statutory discretion, that discretion must be exercised reasonably, within a reasonable time and consistently with the dictates of the Constitution. 5. While the Co-operative Societies Act does not prescribe the period within which the Commissioner must determine an application for registration of amended by-laws, that omission does not permit indefinite administrative inaction. Section 58 of the Interpretation and General Provisions Act provides that where no time is prescribed for the performance of a statutory duty, the act shall be done without unreasonable delay. What constitutes reasonable time depends upon the facts and circumstances of each case and must be assessed in light of Article 47 of the Constitution and the duty of expeditious administrative action. 6. The evidence placed before the Court demonstrates that the Applicant convened a Special General Meeting on 10 September 2025, at which its members unanimously resolved to change the society’s name from *KUSCCO Housing Co-operative Society Limited* to *You & Me Housing Co-operative Society Limited*, approved the consequential amendments to its by-laws and authorized implementation of those resolutions. Copies of the Special General Meeting minutes, the amended by-laws and the prescribed statutory documents were thereafter submitted to the Respondent for registration in accordance with Section 8 of the Act. 7. It is further evident from the material placed before the Court that implementation of those resolutions was initially challenged before the Co-operative Tribunal in Tribunal Case No. *E664 of 2025*. However, the Tribunal conclusively determined the dispute by affirming the validity of the Special General Meeting held on 10 September 2025 and upholding the resolutions passed thereat, thereby removing the legal impediment that had hitherto prevented implementation. The Applicant thereafter furnished the Respondent with the additional documentation that had been requested by the Respondent and renewed its request for registration of the amended by-laws and change of name. 8. The evidence further demonstrates that the Respondent did not reject the Applicant’s application upon receipt. Rather, the Respondent requested further documentation from the Applicant, thereby acknowledging that the application remained under consideration. The Applicant complied with those requests by furnishing the additional documents sought. Notwithstanding the Applicant’s compliance, the Respondent neither communicated any decision nor assigned any lawful reasons for the continued delay. 9. The record further reveals that, notwithstanding the Applicant’s compliance with the Respondent’s requests for additional documentation and the determination of Tribunal Case No. *E664 of 2025* affirming the validity of the resolutions passed on 10 September 2025, the Applicant persistently sought implementation of those resolutions through several reminders, correspondence, a formal demand and a Notice of Intention to Institute Legal Proceedings. Despite the lapse of several months after the Applicant submitted its request for registration together with the requisite documentation, the Respondent neither considered nor determined the application, communicated any decision, nor offered any lawful explanation for the continued inaction. The Applicant further exhibited, in support of the present application, a petition dated 11 May 2026 signed by its members expressing dissatisfaction with the Respondent’s continued failure to effect the change of name and implement the duly passed resolution. 10. The Respondent’s prolonged inaction cannot be justified under the principles governing the exercise of statutory discretion. In ***Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223***, it was established that a public authority acts unreasonably where it exercises, or fails to exercise, its statutory discretion in a manner that no reasonable decision-maker, properly directing itself to the law and the relevant facts, would have adopted. In the Court’s view, no reasonable statutory authority, having requested and received all the documents it considered necessary and with no subsisting legal impediment to registration, could lawfully remain silent for several months without making any decision. Such inaction was plainly unreasonable within the meaning of the ***Wednesbury principle*** and fell short of the constitutional standard imposed by Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. 11. The Respondent’s statutory obligation under Section 8 of the Co-operative Societies Act cannot be viewed in isolation. Article 47 of the Constitution guarantees every person administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Further, Section 58 of the Interpretation and General Provisions Act provides that where no time is prescribed for the performance of a statutory duty, the act shall be performed without unreasonable delay. In the absence of any explanation for the prolonged inaction after the Applicant had complied with the statutory requirements, the Respondent's failure to determine the application was inconsistent with those constitutional and statutory obligations. 12. Having carefully considered the Application, the affidavits, annexures and submissions placed before the Court, I am satisfied that the Applicant complied with the statutory framework governing the amendment of its by-laws and change of name. The validity of the Special General Meeting held on 10 September 2025 and the resolutions passed thereat was affirmed by the Co-operative Tribunal, and there is no evidence that the Tribunal’s decision has been stayed, set aside or overturned. The Applicant thereafter furnished the Respondent with all the documents requested for purposes of registration. No legal impediment therefore remained to prevent the Respondent from considering and determining the Applicant's application. 13. Consequently, this Court finds that upon the Applicant complying with the requirements of Section 8 of the Co-operative Societies Act and submitting the amended by-laws for registration, the Respondent became subject to a continuing statutory duty to consider and determine the application in accordance with the law. The Respondent was at liberty either to register the amendment or to decline registration upon assigning lawful reasons. What the statute, the Constitution and the Fair Administrative Action Act did not permit was indefinite administrative inaction. The Respondent’s prolonged failure to discharge its statutory mandate constituted an unlawful and unreasonable failure to exercise a statutory power vested in it by Parliament, contrary to Article 47 of the Constitution and the Fair Administrative Action Act. Accordingly, the first issue is answered in the affirmative 14. ***Whether the Applicant has established the threshold for the grant of the reliefs sought.*** 15. *Whether the Applicant is entitled to an Order of Mandamus* 16. Having found that the Respondent was under a statutory duty to determine the Applicant's application under Section 8 of the Co-operative Societies Act and that it unlawfully failed to discharge that duty, the remaining question is whether the Applicant has satisfied the threshold for the grant of an order of mandamus. 17. As already found under the preceding issues, the Respondent was under a statutory duty pursuant to Section 8 of the Co-operative Societies Act to consider and determine the Applicant's application upon submission of the amended by-laws. The Court has further found that the Applicant complied with all the statutory requirements, furnished all the documents requested by the Respondent and the Respondent nevertheless failed to determine the Applicant's application. 18. The Court of Appeal in ***Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge (GGN) & 9 Others******[1997] KECA 58 (KLR),*** held that an order of mandamus issues to compel the performance of a public duty imposed by statute where the public authority has failed or refused to perform that duty. The remedy is available where the duty is of a public nature and the applicant has established a corresponding legal right to demand its performance. The court stated as follows while citing with approval *Halsbury’s Law of England*, 4th Edn. Vol. 7 p. 111: *The order of mandamus is of a most extensive remedial nature, and is, 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 appertains to his or their office and is in the nature of a public duty… The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way… These principles mean that an order of mandamus compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.* 1. In the circumstances, and for the reasons already set out in this judgment, the Court is satisfied that the Applicant has established the threshold for the grant of an order of mandamus. Accordingly, the Respondent shall forthwith register and give effect to the Applicant's resolution passed on 10 September 2025 changing its name from *KUSCCO Housing Co-operative Society Limited* to *You & Me Housing Co-operative Society Limited* and issue the corresponding Certificate of Change of Name. 2. *Whether the Applicant is entitled to a Declaration* 3. The Applicant further seeks a declaration that the Respondent’s failure, refusal and/or neglect to perform its statutory duty was unlawful, unreasonable and in violation of Article 47 of the Constitution and the Fair Administrative Action Act. 4. Having found under the first issue that the Respondent's prolonged and unexplained failure to discharge its statutory mandate constituted unlawful, unreasonable and unfair administrative action contrary to Article 47 of the Constitution and the Fair Administrative Action Act, the Applicant has established a proper basis for the declaratory relief sought. The declaration serves to vindicate the Applicant’s constitutional right to fair administrative action and affirms the obligation imposed upon public authorities to discharge their statutory mandates lawfully, reasonably and without undue delay. *c. Whether the Applicant is entitled to Compensation* 1. The Applicant finally seeks compensation for reputational damage and inconvenience allegedly occasioned by the Respondent's failure to perform its statutory duty. 2. It is not in dispute that this Court possesses jurisdiction to grant appropriate relief, including an award of damages, in proceedings concerning unlawful administrative action. Section 11(1) of the Fair Administrative Action Act empowers the Court, in proceedings for judicial review, to grant any order that is just and equitable, including an award of costs or other monetary compensation in appropriate cases. 3. The power to award compensation, however, is discretionary and must be exercised upon proper evidentiary foundation. A claimant must place before the Court sufficient material demonstrating not only that a legal wrong has occurred but also the nature of the loss suffered and the basis upon which compensation should be assessed. 4. In the present case, although the Court has found that the Respondent acted unlawfully and in breach of Article 47 of the Constitution, the Applicant has not placed before the Court evidence demonstrating the alleged reputational damage or other loss suffered as a consequence of the Respondent's inaction. No evidence was tendered to quantify the alleged damage, demonstrate financial loss or establish a basis upon which this Court could assess an appropriate award. The assertions contained in the pleadings, without more, are insufficient to justify an award of compensation. **Disposition** 1. Consequently, the Notice of Motion dated 10 June 2026 substantially succeeds and this Court makes the following orders: 2. ***An Order of Mandamus be and is hereby issued compelling the Respondent to forthwith register and give effect to the Applicant's resolution passed on 10 September 2025 changing its name from KUSCCO Housing Co-operative Society Limited to You & Me Housing Co-operative Society Limited, and to issue the corresponding Certificate of Change of Name.*** 3. ***A Declaration be and is hereby issued that the Respondent's failure, refusal and/or neglect to perform its statutory duty under Section 8 of the Co-operative Societies Act constituted unlawful, unreasonable and unfair administrative action in violation of Article 47 of the Constitution and the Fair Administrative Action Act.*** 4. ***The prayer for compensation for reputational damage and inconvenience is hereby declined.*** 5. ***The Applicant shall have the costs of this Application.*** 6. To ensure compliance with the above orders and directions, this matter will be mentioned on 29 September 2026. 7. It is so ordered **Delivered, Dated** and **Signed** at **Nairobi** this **24th** day of **July,** **2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered virtually in the presence of:*** ***Mr. Okore for the Applicant*** ***Mr. Kariuki for the respondent*** ***Linda - Court Assistant***