Abdulla and Another v Suleman and Others (Civil Appeal No. 12 of 1945) [1946] EACA 1 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph-Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

# DAUD ABDULLA and OSMAN HAJI LADHO (on behalf of the CUTCHI LOHAR WADHA JAMAT), Appellants (Original Plaintiffs) $\bar{\boldsymbol{\nu}}_i$

#### (1) AHMED SULEMAN, (2) MISTRY OSMAN JUMA, and (3) MISTRY HAII ABDULLA EBRAHIM, Respondents (Original Defendants)

### Civil Appeal No. 12 of 1945

#### (Appeal from decision of H. M. Supreme Court of Kenya)

Practice—Representative suit—Kenya Civil Procedure Rules O.1 R.8—Application of rule.

The President and Secretary/Treasurer of a Mohamedan religious association called Cutchi Lohar Wadha Jamat brought a suit for damages against the three Trustees of the association. As the association was not a legal entity and could not sue in its own name the suit was brought by the President and Secretary/ Treasurer in their own names and on behalf of the association under O.1 Rule 8 Civil Procedure Rules.

On the application of one of the defendants the plaint was ordered to be struck out on the grounds that O.1 R.8 did not apply to a claim for damages in tort and that all the members of the association did not have identical interest in the suit.

The plaintiffs appealed.

Held $(20-9-45)$ .—(1) That O.1 R.8 authorizes the bringing of a representative suit where there are numerous persons having the same interest in one suit and says nothing about suits founded in contract or in tort or any other kind of suit.

(2) That the sole test is whether the plaintiffs and the persons whom they claim to represent have the same interest in the suit and that this is the case here.

Cases referred to: Markt & Co. v. Knight Steamship Co. (1910) 79 L. J. K. B. 939; Duke of Bedford v. Ellis (1901) 70 L. J. Ch. 102.

Christie (Bryson with him) for the Appellants.

Hassan for the Respondent No. 3.

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—As was said by Fletcher Moulton, L. J. in Markt & Co. v. Knight Steamship Co. (1910) 79 L. J. K. B. 939 at p. 950, in dealing with Order 16 Rule 9 of the English Rules (which corresponds with Order 1 Rule 8 of the Kenya Rules), we have, in this case, to consider the language of Order 1 Rule 8, and be guided by it and not to attempt to extend or limit what according to its natural construction appears to be the ambit of the rule. The rule authorizes the bringing of a representative action "where there are numerous persons having the same interest in one suit". It says nothing whatever about suits founded in contract or in tort or any other kind of suit. The sole test is whether the plaintiffs and the persons whom they claim to represent have the same interest in the suit. In Lord MacNaghten's words in Duke of Bedford v. Ellis (1901) 70 L. J. Ch. at p. 105, "given a common interest and a common grievance, a representative suit is in order if the relief sought is in its nature beneficial to all whom the plaintiff proposes to represent". Here we are satisfied on the facts as disclosed by the plaint that the plaintiffs and those whom they propose to represent have a common interest and a common grievance, that the relief sought is beneficial to all of them and that consequently a representative action, under Order 1 rule 8, is in order.

In holding that the case does not fall within the ambit of the rule, the learned Judge relied to a great extent on the judgment of Fletcher Moulton, L. J., in the Markt & Co., Ltd., v. Knight Steamship Co., Ltd., already referred to from which he quoted five pages, but that case is clearly distinguishable in that the various persons claiming to have a common interest had not the "same interest", but varying interests. As Fletcher Moulton, L. J., pointed out, "the proper domain of a representative action is where there are like rights against a common fund or where a class of people have a community of interest in some subject-matter. Here there is nothing of the kind. The defendants have made separate contracts, which may or may not be identical in form, with different persons".

In the present case the position is entirely different for here the members of the Jamat clearly have a common interest in the subject-matter of the suit. Similarly, the hypothetical case of the railway accident which is put by the learned trial Judge in the Court below, is not in point, for there the victims would have varying interests and claims. One might have suffered superficial injuries whilst another was maimed for life.

We, therefore, allow this appeal and set aside the learned trial Judge's order for striking out the plaint with costs to the appellant of this appeal and of the application to strike out the plaint and of all matters incidental thereto in the court below. The question whether the title of the suit may require amendment is a matter for the Supreme Court and for the consideration of the advocates of the parties.