Joseph Kamau Musa & 4 others v Ereri Company Ltd & 4 others [2006] KECA 128 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that one sworn affidavit can support a group appeal application and gave the applicants just days to file their appeal or lose automatically.
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 delay of some four years in bringing the reference up for hearing before the full bench should operate against the applicants.
- 2.Whether there are grounds upon which the full Court can interfere with the learned single Judge's exercise of discretion under Rule 4 of the Court of Appeal Rules.
- 3.Whether the first applicant's averment that he had instructions to swear the supporting affidavit on behalf of the other applicants amounted to authority to do so.
- 4.Whether Rule 43(1) of the Court of Appeal Rules required each of the multiple applicants to swear a separate affidavit in support of a formal application.
- 5.Whether Order 1 rule 12 of the Civil Procedure Rules (written authority for representative parties in a suit) was relevant to the application before the Court of Appeal.
Key legal issues
#What are the circumstances in which the full Court will interfere with a single Judge's exercise of discretion under Rule 4 of the Court of Appeal Rules?
The full Court interferes only where the discretion was exercised contrary to law: the single Judge misapprehended the applicable law, failed to take into account a relevant factor or took into account an irrelevant one, or the decision is plainly wrong on the facts and law.
The Court adopted the test in Ocean Freight Shipping Company Ltd v Oakdale Commodities: the Rule 4 discretion is exercised on behalf of the whole Court by a single Judge, so the reference is not an appeal from his decision. Interference is warranted only where the exercise was contrary to law - misapprehension of the applicable law, omission of a relevant factor, reliance on an irrelevant factor, or a decision plainly wrong on the facts and law as known. Applying that test, the Court found the single Judge misapprehended the effect of the averment of instructions and failed to consider Rule 43(1).
Whether the supporting affidavit sworn by the first applicant alone could sustain the motion on behalf of all the applicants.
Yes. The averment that he had instructions to make the affidavit on behalf of the others showed authority to swear it; instructions to swear necessarily imply authority to act on their behalf, and the point was not challenged by the respondents.
The single Judge refused the extension solely because the supporting affidavit was sworn by Joseph Kamau Musa without an express averment of authority from the other applicants. The full Court read his averment of having instructions from the others as an assertion of authority, reasoning that one cannot be instructed to depose for others without being authorized to act for them. The respondents never challenged that averment, so it stood uncontroverted before both the single Judge and the full Court.
Whether Rule 43(1) of the Court of Appeal Rules required each of several applicants to swear a separate affidavit in support of a formal application.
No. Rule 43(1) requires one or more affidavits by the applicant or by some other person having knowledge of the facts; it does not require a separate affidavit from every applicant, and the affidavit need not even be sworn by an applicant.
The Court held that the single Judge's attention was not drawn to Rule 43(1). On its proper reading, one affidavit by any person with knowledge of the facts suffices, whoever swears it. Joseph Kamau Musa was both an applicant and a person with knowledge of the facts he deponed to. His single affidavit therefore satisfied the rule for all the applicants, and the absence of affidavits from the other applicants was not a lawful ground for refusing the extension of time.
Whether Order 1 rule 12 of the Civil Procedure Rules applied to the application before the Court of Appeal.
No. That provision governs representative parties in civil suits and has no relevance to applications in the Court of Appeal, which are governed by Rule 43(1) of the Court's own rules.
Respondents' counsel invoked Order 1 rule 12 of the Civil Procedure Rules, which requires a person representing numerous plaintiffs or defendants to obtain and file written authority signed by them. The Court held that provision irrelevant to proceedings before the Court of Appeal because Rule 43(1) of the Court of Appeal Rules governs such applications. The authority-based objection therefore rested on the wrong procedural code and could not sustain the single Judge's refusal of the extension.
Whether the four-year delay in hearing the reference before the full bench should bar the applicants.
No. Delay in the hearing of the reference that is not attributable to the applicants could not be visited upon them, notwithstanding that there ought to be an end to litigation.
The respondents argued that the gap of some four years between the letter of 30th July 2002 requesting a reference and the hearing rendered the delay inordinate and that there ought to be an end to litigation. The Court agreed that litigation must end but found no material attributing the delay to the applicants and declined to act on it to their detriment. The delay was treated as the Court's own, not the litigants'.
Legal principles established
#- A full Court will interfere with a single Judge's exercise of the Rule 4 discretion only where the discretion was exercised contrary to law: the single Judge misapprehended the applicable law, failed to take into account a relevant factor or took into account an irrelevant one, or the decision is plainly wrong on the facts and law.
- Under Rule 43(1) of the Court of Appeal Rules, a formal application by several applicants need not be supported by a separate affidavit from each of them; one affidavit by an applicant or by any person with knowledge of the facts suffices.
- An averment that a deponent acts on the instructions of the other applicants demonstrates authority to swear the affidavit on their behalf, particularly where unchallenged.
- Delay in the hearing of a reference that is not attributable to a party cannot be visited upon that party.
- Order 1 rule 12 of the Civil Procedure Rules, governing written authority for representative parties in civil suits, has no application to formal applications in the Court of Appeal, which are governed by Rule 43(1) of the Court of Appeal Rules.
Court orders
#- 1.The applicants shall file and serve their notice of appeal within seven (7) days of the date of the ruling.
- 2.The applicants shall file and serve their record of appeal within fourteen (14) days from the date they lodge their notice of appeal in court.
- 3.If the applicants fail to comply with the first two orders or any of them within the stated times, the reference which was allowed shall automatically stand dismissed with the costs thereof to the respondents.
- 4.The costs of the reference shall be costs in the proposed appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3746 of 1988 (consolidated with H.C.C.C. No. 3200 of 1990)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (discretion of a single Judge to enlarge time for filing notice of appeal and record of appeal), the single Judge's refusal having been referred to the full Court.
Relief refused
#Enlargement of time by 'a further 30 days' as prayed in the notice of motion
The substance of the prayer (extension of time) was granted, but not as a 30-day enlargement as framed; the Court substituted its own timetable of 7 days for the notice of appeal and 14 days for the record, with automatic dismissal on default.
Costs
The costs of the reference shall be costs in the proposed appeal; in the event the applicants fail to comply with the filing directions, the reference shall automatically stand dismissed with the costs thereof to the respondents.
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 applicants shall file and serve their notice of appeal within seven (7) days of the date of this ruling.
The applicants shall file and serve their record of appeal within fourteen (14) days from the date they lodge their notice of appeal in court.
If the applicants should fail to comply with the first two orders or any of them or fail to comply with them or any of them within the stated times, then in the event of such failure, the reference which we have allowed shall automatically stand dismissed with the costs thereof to the respondents.
The costs of the reference shall be costs in the proposed appeal.
for a full bench to interfere with the exercise of the discretion, it must be shown that the discretion was exercised contrary to law, i.e. that the single Judge misapprehended the applicable law, or that he failed to take into account a relevant factor or took into account an irrelevant one or that on the facts and the law as they are known the decision is plainly wrong.
We are unable to read in the rule any requirement that where there are more than one applicant each one of them must swear a separate affidavit.
Every formal application to the court shall be supported by one or more affidavits of the applicant or of some other person or persons having knowledge of the facts.
If the first applicant had instructions to swear on behalf of the other applicants then clearly he had authority to swear on behalf of the others for how else could they instruct him and yet at the same time not authorize him to act on their behalf.
there is absolutely no material before us from which we can conclude that the applicants are in any way to blame for the delay of some four years. So we cannot act on the issue of delay in hearing the reference to the detriment of the applicants
We think the learned single Judge misapprehended this fact, which was in any case, not challenged by the respondents. But even more to the point it appears to us that the attention of the learned single Judge was not drawn to Rule 43(1) of the Court's rules.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kamau Musa & 4 others v Ereri Company Ltd & 4 others [2006] KECA 128 (KLR)", Case Analysis (2006). Civil Application No. 361 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/128/eng@2006-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.