Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 321 of 2003· [2007] KECA 506 (KLR)

RESEARCH INTERNATIONAL EAST AFRICA LTD v JULIUS ARISI & 213 OTHERS [2007] KECA 506 (KLR)

Court of Appeal of Kenya
27 April 2007
EOE. O. O'KubasuEGE. M. GithinjiJOJ. W. Onyango Otieno
3,239 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out 213 plaintiffs' claims because only one plaintiff verified the suit — every plaintiff must verify or give written authority.

What this practically means

#

Executive summary

#
This was an appeal to the Court of Appeal at Nairobi against a ruling of the High Court (G. B. M. Kariuki J) dismissing the appellant's application to strike out a suit brought by 214 plaintiffs claiming unpaid employment benefits of over Shs.109 million against their employer. The appellant argued that the plaint was fatally defective because only the first plaintiff, Julius Arisi, swore the verifying affidavit required by rule 1(2) of Order VII of the Civil Procedure Rules, and that he lacked written authority from the other plaintiffs; it also contended the suit was an abuse of process since some claims had been settled and some plaintiffs had withdrawn. Counsel for the appellant conceded there was no basis for striking out the suit against the first respondent. The Court of Appeal held that the suit was not a representative suit and that, in a joint suit, no plaintiff may act for another without express written authority filed in the case as required by Order I rule 12(2). The learned Judge had erred in accepting the first plaintiff's averment of authority at face value. The Court construed rule 1(2) as requiring each of numerous plaintiffs to verify the plaint unless written authority to a co-plaintiff was filed. However, rather than striking out the plaint outright, the Court exercised its discretion in favour of striking out the suit of the 2nd to 214th respondents while leaving the first respondent's suit intact, noting the limitation period had not expired and inviting a fresh suit. The abuse-of-process ground failed. The appeal was accordingly allowed in part, with no costs against the 2nd to 214th respondents and costs against the appellant on the dismissed appeal by the first respondent.

Key legal issues

#
01

Whether one plaintiff's verifying affidavit suffices for all plaintiffs in a multi-plaintiff suit

Holding

No. Each plaintiff must verify unless written authority to a co-plaintiff is filed in the case.

Reasoning

The Court held the suit was not a representative suit; all 214 plaintiffs sued jointly through one advocate, each being personally responsible for his own suit. Order I rule 12(2) requires any authority to be in writing, signed and filed. The first plaintiff's averment of oral authority could not substitute for the written authority the rule mandates, so the Judge erred in accepting the affidavit on its face value.

p. 4
02

Whether the suit was an abuse of process because some claims were settled or withdrawn

Holding

No; settlement or withdrawal of some claims post-filing does not amount to abuse of process.

Reasoning

The Court reasoned that if some claims were wholly adjusted by lawful compromise, the proper course was an application under Order XXIV of the Civil Procedure Rules, not striking out the whole suit on that ground.

p. 5
03

The purpose of the verifying-affidavit rule introduced by Legal Notice No. 36 of 2000

Holding

The primary purpose is to ensure claims are not brought on behalf of a plaintiff without express instructions, thereby curbing ambulance chasing.

Reasoning

The Court adopted Ringera J's quotation of Juma J's commentary in HAKIMU, noting Juma J was a member of the Rules Committee which promulgated the rule, making the commentary authoritative as to the mischief targeted by rule 1(2) of Order VII.

p. 3

Legal principles established

#
  • Where there are numerous plaintiffs, each plaintiff must personally verify the plaint unless he has expressly authorized a co-plaintiff in writing, filed in the case, to swear a verifying affidavit on his behalf
  • In a suit filed by several plaintiffs, none may take steps on behalf of another plaintiff without express written authority filed in the case, as required by rule 12(2) of Order I of the Civil Procedure Rules
  • A court asked to strike out a plaint for non-compliance with the verifying-affidavit rule has a discretion to make other appropriate orders instead, including giving plaintiffs an opportunity to comply

Court orders

#
  1. 1.The order of the superior court dated 13th October 2003 dismissing the appellant's application dated 20th May 2003 for striking out the suit is set aside and substituted with an order allowing the application to the extent that the suit of the 2nd to 214th respondents is struck out
  2. 2.The suit of the first respondent is left intact
  3. 3.There will be no order for costs of this appeal in respect of the 2nd to 214th respondents and the costs of the appellant's application dated 20th May 2003
  4. 4.The appeal against the first respondent is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder VII rule 1(1), 1(2), 1(3)
  • Civil Procedure RulesOrder VI rule 13(a)(c)(d)
  • Civil Procedure RulesOrder I rule 1, rule 12(1), rule 12(2)
  • Civil Procedure RulesOrder XXIV
  • Employment Actnot specified
  • Interpretation and General Provisions Actsection 3(4)

Cases cited (3)

  • Microsoft Corporation vs. Mitsumi Computer Garage Ltd & Another
    Milimani Commercial Courts H.C.C.C. No. 810 of 2001 (unreported)
  • Patrick Thinguri & 1006 Others vs. Kenya Tea Development Agency Co. & Another
    H.C.C.C No. 26 of 2004 (unreported)
  • Grace Ndegwa & Others vs. Hon. Attorney General
    Civil Appeal No. 228 of 2002 (unreported)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 429 of 2003
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Rules/appeal against ruling of the High Court (statutory appeal; no specific constitutional provision stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "RESEARCH INTERNATIONAL EAST AFRICA LTD v JULIUS ARISI & 213 OTHERS [2007] KECA 506 (KLR)", Case Analysis (2007). Civil Appeal 321 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/506/eng@2007-04-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.