Kenya Trypanosomiasis Research Institute v Gusinjilu (Suing for and on behalf of 112 Plaintiffs) (Civil Appeal 212 of 2015) [2019] KECA 193 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a representative lawsuit survives the death of the named plaintiff, and employers cannot use procedural technicalities to escape paying retirement benefits.
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 Court of Appeal could interfere with the trial judge's exercise of discretion in declining to review and set aside the judgment dated 10th July 2009
- 2.Whether the suit abated by operation of law upon the death of the named plaintiff under Order XXIII Rule 3(2) of the old Civil Procedure Rules
- 3.Whether non-compliance with Order 1 Rule 8 of the Civil Procedure Rules (service/notice requirements of a representative suit) amounted to an error apparent on the face of the record justifying review
- 4.Whether the 112 un-named claimants who did not apply to be joined under Order 1 Rule 8(3) could benefit from the judgment
- 5.Whether the trial judge erred in deeming the application for substitution under Order 24 to be an application for joinder under Order 1 Rule 8(3), invoking Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act
- 6.Whether the appellant could raise, for the first time on appeal, the failure of the deceased and the 112 plaintiffs to prove their individual claims at formal proof
Key legal issues
#Interference with discretionary decisions of the High Court
The Court declined to interfere; the trial judge's discretion in refusing review and allowing joinder was properly exercised.
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.
Abatement of a representative suit on the death of the named plaintiff
The suit did not abate; the named plaintiff in a representative suit acts for all plaintiffs, and on death another beneficiary may take his place.
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.
Error apparent on the face of the record as a ground of review
The alleged non-compliance with Order 1 Rule 8(3) was not an error apparent on the face of the record; a wrong application of law is appealable but not reviewable.
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.
Raising a new issue for the first time on appeal
The contention that the deceased and 112 plaintiffs failed to prove their claims at formal proof could not be raised for the first time on appeal.
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.
Deeming an application brought under the wrong provision to be one under the correct provision
The trial judge properly invoked Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act to deem the substitution application a joinder under Order 1 Rule 8(3); the mischaracterisation was not fatal.
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.
Legal principles established
#- An appellate court will only interfere with the exercise of a trial judge's discretion where the decision is clearly wrong, is based on wrong matters, or omits relevant considerations leading to a wrong conclusion.
- Non-compliance with Order 1 Rule 8(2) (notice/service in a representative suit) goes to the substance of the suit, but the remedy of a beneficiary is substitution or joinder, not abatement of the suit.
- A decision arrived at by a possible view cannot be an error apparent on the face of the record; wrong application of law is a ground of appeal, not of review.
- A new point may not be taken on appeal where the facts bearing on it were not explored below and the other party had no opportunity to respond; the discretion to admit a new point must be exercised sparingly.
- Procedure is a handmaid of justice; failure to cite the correct legal provision does not render an application defective where no substantive prejudice or change to the dispute results.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant shall pay the costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated (ruling of 16th May 2013 on applications dated 2nd August 2010 and 17th December 2010)
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction (specific statutory basis not stated in the judgment)
Relief refused
#Setting aside the High Court ruling declining review of the judgment dated 10th July 2009
The trial judge's exercise of discretion was not clearly wrong, did not misdirect itself, and no error apparent on the face of the record was made out
Striking out the entire suit for abatement following the death of the named plaintiff
The other plaintiffs could substitute a living plaintiff; a representative suit does not abate so as to defeat the claim
Admission of the appellant's new contention that the deceased and 112 plaintiffs failed to prove their individual claims
The issue was raised for the first time on appeal, was not addressed by the trial judge, and would require an analysis of evidence
Costs
The appeal was dismissed with costs to the respondent.
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.
Accordingly, there is no reason to justify our interference with the learned Judge’s discretion. We find that the appeal lacks merit and is hereby dismissed with costs.
we can only interfere where the decision of the court is clearly wrong, where it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
Compliance with Order 1 Rule 8(2) of the Civil Procedure Rules therefore goes to the substance of any representative suit.
it would be wrong for this Court to interfere with the exercise of the trial Judge’s discretion merely because this Court’s reasoning would have been difierent.
if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal.
the Court of Appeal has a discretion to admit a new point at appeal but that the discretion must be exercise sparingly, the evidence must all be on record, the new point must not raise disputes of fact and it must not be at variance with the facts or case decided by the court below.
a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties.
Issues in the judgment
#The judgment inconsistently dates the judgment under review, sometimes as 10th July 2009 and sometimes as 10th July 2010, and refers to 'Order 8 Rule 3' and 'Order 1 Rule 8(3)' interchangeably.
The judgment does not state the appeal number, neutral citation, or the appellant's name; the case title had to be reconstructed from the narrative.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- SBM Bank (Kenya) Ltd v Afrasia Bank Ltd (Civil Application E600 of 2025) [2026] KECA 944 (KLR)[2026] KECA 944 (KLR)15 May 2026
- Mbithi & 305 others v Buruchara & 17 others; Mohamed & another (Interested Parties) (Environment and Land Petition E012 of 2022) [2025] KEELC 7785 (KLR)[2025] KEELC 7785 (KLR)11 Nov 2025
- Mokoi & 12 others v Sio (Enviromental and Land Originating Summons E001 of 2021) [2025] KEELC 8040 (KLR)[2025] KEELC 8040 (KLR)6 Nov 2025
Cite this brief
#Cite this brief
Caselaw, "Kenya Trypanosomiasis Research Institute v Gusinjilu (Suing for and on behalf of 112 Plaintiffs) (Civil Appeal 212 of 2015) [2019] KECA 193 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/193/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.