Joseph Kamau Musa & 4 others v Ereri Company Ltd. & 3 others

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).

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.

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.

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.

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'.