Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu (suing For and On Behalf of 112 Plaintiffs)

Citing Mbogo & Another v Shah, the Court restated that an appellate court interferes with discretion only where the decision is clearly wrong, based on wrong principles, or omits relevant matters. Even where the Court might have reasoned differently (as it did on the correct statutory basis for substitution), it would be wrong to disturb a discretion exercised judicially merely because the appellate court's reasoning would differ. Waweru J.'s conclusion was correct even if not fully supported by his reasoning.

The suit was properly constituted under Order I Rule 12 of the old Rules, which allows one plaintiff to be authorised in writing by others to appear, plead or act for them; the nominated plaintiff becomes dominus litis. Relying on Lord Denning in Moon v Atherton, the Court held that where a named plaintiff dies or withdraws, any person represented may come forward and take the named plaintiff's place. The consent judgment on admission also had contractual effect and survived.

Restating Muyodi v Industrial and Commercial Development Corporation, the Court held that an error apparent on the face of the record must be one where there could reasonably be no two opinions; where the court below adopted a possible view, that is a ground of appeal, not review. The appellant's complaint that the judgment concerned persons not formally joined required a drawn process of reasoning and was therefore not a reviewable error.

A perusal of the applications and submissions in the High Court showed the issue was never raised there, so the respondent had no opportunity to respond and the trial judge never addressed it. Determining it would require analysis of the actuary's evidence on individual entitlements. Applying Securicor (Kenya) Ltd v EA Drappers Ltd and Attorney General v Revolving Tower Restaurant, the discretion to admit new points on appeal is exercised sparingly and only where all evidence is on record and no disputes of fact arise.

The application dated 17th December 2010 was brought under Order 24, but the Court agreed that the irregularity was not serious enough to prevent the court from hearing it on merit. Procedural rules are handmaids of justice; no prejudice was occasioned, the substance of the claim was unchanged, and there is no time limit for joinder under Order 1 Rule 8(3). Amendments may be allowed at any stage unless they change the core of the dispute.