REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO E632 OF 2024
URITHI HOUSING CO-OPERATIVE SOCIETY LIMITED……....1 ST APPELLANT
SAMUEL NGUNDO MAINA……………………………………2 ND APPELLANT
VERSUS
MARY KEMUNTO MAYIEKA & 104 OTHERS…………………RESPONDENTS
( Being an Appeal from the Ruling and Order of the Hon J. Mwatsama-Deputy Chairperson; Hon B. Sawe- Member, Hon P. Gichuki-Member, in Nairobi Co-operative Tribunal Case Number 55 of 2021 delivered on 16 May 2024 )
BETWEEN
MARY KEMUNTO MAYIEKA & 104 OTHERS…………………. CLAIMANTS
VERSUS
URITHI HOUSING CO-OPERATIVE SOCIETY LIMITED……1 ST RESPONDENT
SAMUEL NGUNDO MAINA…………………………………2 ND RESPONDENT
JUDGEMENT
A. INTRODUCTION
1. The respondents did file a representative suit before the Cooperative tribunal, where they were seeking refunds for sums paid to the 1 ST Appellant to purchase residential apartments to be built on parcel of land known as MAVOKO TOWN BLOCK 3/52732 . Pursuant provisions of Order 4 Rule 1(3) of the Civil Procedure Rules , the majority of the respondents did sign and consented to allowing, ELIJAH ISAAC MUKURIA; FLORENCE KAGENDO KITHINJI; & EVELINE WANJIRU KIBICHU & HEZRON NGANGA MBOGO their co claimants to appear, plead or act for and on their behalf in pursuing their claim before the tribunal.
2. When the matter came up for hearing before the tribunal on 16.05.2024, the appellants counsel raised two legal issues which he wanted the tribunal to give direction on preliminarily; Whether the 2 nd claimant is legally competent to give evidence on contracts he was not privy too and secondly that if only the 2 nd claimant were to be allowed to testify on behalf of the other claimants, their client would be denied the right to fair hearing as they would not be able to cross examine the other Co-claimants and that would prejudice their case in breach their right to fair hearing contrary to the provisions of Article 50 of the Constitution of Kenya, 2010 .
3. The tribunal in its considered ruling did find that the cause of action arose from the same series of transaction, concerning the same parties and consolidation of the evidence would save costs and would constitute prudent use of limited judicial time. Further,the law also allowed for representative suit and since pretrial directions had been complied with, no prejudice would be occasion if one witness testified on behalf of all other claimants. It was also noted that the suit had come up several times for hearing and that the appellants had always sought for its adjournment for one reason or the other.
4. Being aggrieved by these directions, the Appellants move this Court through their Memorandum of Appeal dated 23 May 2024, raising several grounds of appeal on the following main grounds:
a) The learned Tribunal erred in law and in fact in failing to consider the Appellants' legal questions of privity of contract and the right to fair hearing as well as submissions thereof, thus arriving at an erroneous finding in entirety.
b) The learned Tribunal erred in law and in fact in deciding the application/objection raised on the ground of consolidation of suit, which ground was never raised and/or canvassed by either party. As such, the Tribunal considered matters that were never raised by the parties.
c) The learned Tribunal erred in law and in fact in finding that the Appellants had not indicated specifically the prejudice they are likely to suffer when in the actual fact the Appellants argued that their right to fair hearing under Article 50 of the Constitution, which encompasses the right to cross examine a party who has an adverse claim against them, would be denied.
d) The learned Tribunal erred in law and fact in determining that a single witness to represent the remaining 103 Claimants when it was clear that quite a number of Claimants had not signed the authority to plead.
e) The learned Tribunal erred in law and in fact in failing to consider what ought to have been considered and instead thereof considering irrelevant matters.
5. The Appellant thus prayed that the appeal be allowed and the Ruling of the trial court be set aside and the respondent claim be dismissed.
B. ANALYSIS AND DETERMINATION
6. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123
7. A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316
8. Upon a thorough review of the pleadings filed, the proceedings before the tribunal, the grounds raised in the Memorandum of Appeal and the submissions on record, I find that the core issue requiring resolution in this appeal are as follows:
a) Whether in a representative suit, the appointed plaintiff(s) can testify on behalf of the others, whom he representants and/or if the inability to cross examine (all the plaintiffs) specifically on their individual contracts entered into with the defendant, will prejudice the defendants right to fair hearing.
b) Who shall bear the costs of this Appeal.
9. Order 1 Rule 8 of the Civil Procedure Rules does provide that;
One person may sue or defend on behalf of all in the same interest
(1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.
10. Further, Order 1 Rule 13, of the Civil Procedure Rules provides that;
(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding , and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in the case .
10. The Appellant’s concerns are answered by the clear provisions of Order 1 Rule 13 of the Civil Procedure Rules , which provide that the nominated plaintiff(s) can, “ appear, plead or act for such other in any proceeding” so long as he is so authorized to do so in writing by his Co- Plaintiffs and/or defendants as the case maybe. Back to the case at hand, the principals (Co-plaintiff) having properly nominated their representatives (their agent), to appear, plead and act for them in the proceedings before the tribunal and the said agent assumes the principals’ seat in the said litigation. The appellants therefore cannot be heard to state that the nominated plaintiff(s) were not privy to the various contract entered into with the 1 st appellant and/or cannot answer questions related thereto.
11. In Ruth Wamboi Muturi v Joseph Karisa Katsoma & 4 Others [2007] KEHC 1372 (KLR) , the High Court sitting at Malindi held that representative suits are instituted on behalf of numerous persons who share a common interest. Once it is established that the parties possess identical interests, a designated representative may testify and undergo cross-examination on behalf of the entire class. Consequently, defence counsel insistence that every member of the SACCO testify on the exact same issues and interests is plainly repetitive and constitutes an abuse of court process.
12. The Appellants right to fair hearing therefore had not been breached in any manner, by allowing the appointed/nominated plaintiff to testify on behalf of the rest, regardless of his/her level of knowledge of the matters pleaded therein, which is an independent issue to be determined by the tribunal at the conclusion of the case. The Appellants also pointed out that 18 claimants (6th, 31st, 43rd, 51st, 54th, 57th, 58th, 59th, 71st, 82nd, 62nd, 84th, 92nd, 93rd, 95th, 96th, 101st, and 104th Claimants) did not execute the authority allowing the principal/nominated plaintiffs to act for them. It is obvious that for the said claimants, the nominated plaintiff(s) cannot act for them in the proceedings before the tribunal unless corrected, as this it’s a procedural error.
11. DISPOSITION
16. In the premise, I find that this Appeal lacks merit and the same is dismissed with costs to the Respondents. The costs of this Appeal are assessed at Kshs 150,000/= all inclusive.
17. This court noted that the primary matter before the tribunal was filed in 2021 and that there is need for it to be determined expeditiously. It therefore Ordered that the primary file be remitted back to the tribunal and that it be heard on priority basis and determined within the next three (3) months from the date hereof.
18. Stay of Execution 60 days.
Read, signed, and delivered virtually at MARSABIT on this 21 st day of SEPTEMBER, 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this day 21 st of SEPTEMBER 2026.
In the presence of;
………………………………….for Appellants
………………………………….for Respondents
………………………………….Court Assistant
MILIMANI HCCA E632 OF 20242
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO E632 OF 2024
URITHI HOUSING CO-OPERATIVE SOCIETY LIMITED……....1 ST APPELLANT
SAMUEL NGUNDO MAINA……………………………………2 ND APPELLANT
VERSUS
MARY KEMUNTO MAYIEKA & 104 OTHERS…………………RESPONDENTS
( Being an Appeal from the Ruling and Order of the Hon J. Mwatsama-Deputy Chairperson; Hon B. Sawe- Member, Hon P. Gichuki-Member, in Nairobi Co-operative Tribunal Case Number 55 of 2021 delivered on 16 May 2024 )
BETWEEN
MARY KEMUNTO MAYIEKA & 104 OTHERS…………………. CLAIMANTS
VERSUS
URITHI HOUSING CO-OPERATIVE SOCIETY LIMITED……1 ST RESPONDENT
SAMUEL NGUNDO MAINA…………………………………2 ND RESPONDENT
JUDGEMENT
A. INTRODUCTION
1. The respondents did file a representative suit before the Cooperative tribunal, where they were seeking refunds for sums paid to the 1 ST Appellant to purchase residential apartments to be built on parcel of land known as MAVOKO TOWN BLOCK 3/52732 . Pursuant provisions of Order 4 Rule 1(3) of the Civil Procedure Rules , the majority of the respondents did sign and consented to allowing, ELIJAH ISAAC MUKURIA; FLORENCE KAGENDO KITHINJI; & EVELINE WANJIRU KIBICHU & HEZRON NGANGA MBOGO their co claimants to appear, plead or act for and on their behalf in pursuing their claim before the tribunal.
2. When the matter came up for hearing before the tribunal on 16.05.2024, the appellants counsel raised two legal issues which he wanted the tribunal to give direction on preliminarily; Whether the 2 nd claimant is legally competent to give evidence on contracts he was not privy too and secondly that if only the 2 nd claimant were to be allowed to testify on behalf of the other claimants, their client would be denied the right to fair hearing as they would not be able to cross examine the other Co-claimants and that would prejudice their case in breach their right to fair hearing contrary to the provisions of Article 50 of the Constitution of Kenya, 2010 .
3. The tribunal in its considered ruling did find that the cause of action arose from the same series of transaction, concerning the same parties and consolidation of the evidence would save costs and would constitute prudent use of limited judicial time. Further,the law also allowed for representative suit and since pretrial directions had been complied with, no prejudice would be occasion if one witness testified on behalf of all other claimants. It was also noted that the suit had come up several times for hearing and that the appellants had always sought for its adjournment for one reason or the other.
4. Being aggrieved by these directions, the Appellants move this Court through their Memorandum of Appeal dated 23 May 2024, raising several grounds of appeal on the following main grounds:
a) The learned Tribunal erred in law and in fact in failing to consider the Appellants' legal questions of privity of contract and the right to fair hearing as well as submissions thereof, thus arriving at an erroneous finding in entirety.
b) The learned Tribunal erred in law and in fact in deciding the application/objection raised on the ground of consolidation of suit, which ground was never raised and/or canvassed by either party. As such, the Tribunal considered matters that were never raised by the parties.
c) The learned Tribunal erred in law and in fact in finding that the Appellants had not indicated specifically the prejudice they are likely to suffer when in the actual fact the Appellants argued that their right to fair hearing under Article 50 of the Constitution, which encompasses the right to cross examine a party who has an adverse claim against them, would be denied.
d) The learned Tribunal erred in law and fact in determining that a single witness to represent the remaining 103 Claimants when it was clear that quite a number of Claimants had not signed the authority to plead.
e) The learned Tribunal erred in law and in fact in failing to consider what ought to have been considered and instead thereof considering irrelevant matters.
5. The Appellant thus prayed that the appeal be allowed and the Ruling of the trial court be set aside and the respondent claim be dismissed.
B. ANALYSIS AND DETERMINATION
6. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123
7. A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316
8. Upon a thorough review of the pleadings filed, the proceedings before the tribunal, the grounds raised in the Memorandum of Appeal and the submissions on record, I find that the core issue requiring resolution in this appeal are as follows:
a) Whether in a representative suit, the appointed plaintiff(s) can testify on behalf of the others, whom he representants and/or if the inability to cross examine (all the plaintiffs) specifically on their individual contracts entered into with the defendant, will prejudice the defendants right to fair hearing.
b) Who shall bear the costs of this Appeal.
9. Order 1 Rule 8 of the Civil Procedure Rules does provide that;
One person may sue or defend on behalf of all in the same interest
(1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.
10. Further, Order 1 Rule 13, of the Civil Procedure Rules provides that;
(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding , and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in the case .
10. The Appellant’s concerns are answered by the clear provisions of Order 1 Rule 13 of the Civil Procedure Rules , which provide that the nominated plaintiff(s) can, “ appear, plead or act for such other in any proceeding” so long as he is so authorized to do so in writing by his Co- Plaintiffs and/or defendants as the case maybe. Back to the case at hand, the principals (Co-plaintiff) having properly nominated their representatives (their agent), to appear, plead and act for them in the proceedings before the tribunal and the said agent assumes the principals’ seat in the said litigation. The appellants therefore cannot be heard to state that the nominated plaintiff(s) were not privy to the various contract entered into with the 1 st appellant and/or cannot answer questions related thereto.
11. In Ruth Wamboi Muturi v Joseph Karisa Katsoma & 4 Others [2007] KEHC 1372 (KLR) , the High Court sitting at Malindi held that representative suits are instituted on behalf of numerous persons who share a common interest. Once it is established that the parties possess identical interests, a designated representative may testify and undergo cross-examination on behalf of the entire class. Consequently, defence counsel insistence that every member of the SACCO testify on the exact same issues and interests is plainly repetitive and constitutes an abuse of court process.
12. The Appellants right to fair hearing therefore had not been breached in any manner, by allowing the appointed/nominated plaintiff to testify on behalf of the rest, regardless of his/her level of knowledge of the matters pleaded therein, which is an independent issue to be determined by the tribunal at the conclusion of the case. The Appellants also pointed out that 18 claimants (6th, 31st, 43rd, 51st, 54th, 57th, 58th, 59th, 71st, 82nd, 62nd, 84th, 92nd, 93rd, 95th, 96th, 101st, and 104th Claimants) did not execute the authority allowing the principal/nominated plaintiffs to act for them. It is obvious that for the said claimants, the nominated plaintiff(s) cannot act for them in the proceedings before the tribunal unless corrected, as this it’s a procedural error.
11. DISPOSITION
16. In the premise, I find that this Appeal lacks merit and the same is dismissed with costs to the Respondents. The costs of this Appeal are assessed at Kshs 150,000/= all inclusive.
17. This court noted that the primary matter before the tribunal was filed in 2021 and that there is need for it to be determined expeditiously. It therefore Ordered that the primary file be remitted back to the tribunal and that it be heard on priority basis and determined within the next three (3) months from the date hereof.
18. Stay of Execution 60 days.
Read, signed, and delivered virtually at MARSABIT on this 21 st day of SEPTEMBER, 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this day 21 st of SEPTEMBER 2026.
In the presence of;
………………………………….for Appellants
………………………………….for Respondents
………………………………….Court Assistant
MILIMANI HCCA E632 OF 20242