Nairobi City Council v Thabiti Enterprises Ltd (Civil Appeal 264 of 1996) [1997] KECA 59 (KLR)
The bottom line
#Kenya's Court of Appeal voided a Kshs 80 million award because the judge decided a compensation claim no one had actually pleaded in the case.
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 judgment of Hayanga J of 27 September 1995 contained an error apparent on the face of the record sufficient to warrant review under Order 44 rule 1 of the Civil Procedure Rules.
- 2.Whether the learned judge had jurisdiction to determine the compensation value of the suit land when that issue had not been pleaded and the pleadings were never amended, notwithstanding the acquiescence of the parties.
- 3.Whether the acquiescence and part-payment by the City Council barred it from seeking review of the judgment.
- 4.Whether 'any other sufficient reason' in Order 44 rule 1 is restricted to reasons analogous to the other enumerated grounds for review.
Key legal issues
#Error apparent on the face of the record as a ground of review
The majority held that Hayanga J's award of Kshs 80,000,000 as compensation for compulsory acquisition, when the only matter for formal proof was general damages for trespass under Bosire J's ruling, was a glaring error apparent on the face of the record which should have compelled him to grant review.
Bosire J had struck out the defence and entered judgment on the plaint, which claimed only injunction, removal of erections and general damages for trespass. The subsequent judgment awarding the value of the land was inconsistent with that ruling and with the decree itself, which recited the trespass-based prayers. The error was obvious and self-evident, and the trial judge himself had recognised the true issue before departing from it. Party acquiescence made no difference.
Jurisdiction to determine unpleaded issues
The majority held that a judge has no jurisdiction to determine an issue not pleaded, even where the parties acquiesce in its determination; the only way to raise issues is through the pleadings.
Relying on Sande and Sheikh, the majority reaffirmed that pleadings define and delimit the matters in controversy and that relief not founded on the pleadings will not be given. Determination of compensation for acquisition of land did not flow naturally from a trespass claim and was a completely different issue. The trial judge's wrongful assumption of jurisdiction also amounted to 'any other sufficient reason' for review under Wangechi Kimita.
Effect of acquiescence in an unpleaded issue (dissent)
Lakha JA dissented, holding that where parties acquiesce in an unpleaded issue and leave it to the court for decision, the court may properly determine it, and such determination discloses no error on the face of the record.
Following Odd Jobs v Mubia, Nkalubo v Kibirige and Railways Corporation v East African Road Services, Lakha JA held that an unpleaded issue left to the court with the full participation of both parties becomes an issue at the trial. It is not for the judge to refuse the case the parties choose to present. He also found the City Council, having paid Kshs 1 million under the decree, had approbated the judgment and could not attack it.
Scope of review jurisdiction under section 80 and Order 44 rule 1
The court confirmed that 'any other sufficient reason' for review need not be analogous to the other enumerated grounds, following Wangechi Kimita v Mutahi Wakabiru, and that the court has an unfettered discretion to review its own decrees or orders for any sufficient reason.
Tracing the authorities from Sadar Mohamed v Charan Singh (unfettered discretion) through Yusuf v Nokrach (restrictive, analogous-grounds approach) to Wangechi Kimita, the court held the current position to be that a restriction to analogous grounds would clog the unfettered statutory right of review. The wrongful assumption of jurisdiction by the trial judge qualified as 'any other sufficient reason'.
Legal principles established
#- A judge has no power or jurisdiction to decide an issue not raised before him; the only way to raise issues before a judge is through the pleadings.
- An error apparent on the face of the record is one that is obvious and self-evident and does not require elaborate argument to establish; a judgment that makes nonsense of a previous judgment in the same suit discloses such an error and constitutes a failure of justice.
- 'Any other sufficient reason' in Order 44 rule 1 need not be analogous with the other enumerated grounds of review, since such a restriction would clog the unfettered right given to a court to review its decision under section 80 of the Civil Procedure Act.
- A judge is not permitted in a civil dispute to take it upon himself to introduce or determine issues; he must rest content with the case presented by the parties.
Court orders
#- 1.The appeal is allowed.
- 2.The ruling of Hayanga J dated 26 November 1996 refusing review is set aside.
- 3.The City Council's application for review is allowed.
- 4.The judgment of Hayanga J of 27 September 1995 is set aside together with such consequential acts derived therefrom.
- 5.Each party will bear its own costs of the appeal.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the leading judgment. Held there was a glaring error apparent on the face of the record in Hayanga J's judgment awarding compensation for compulsory acquisition when the only issue for formal proof was general damages for trespass under Bosire J's earlier ruling; the trial judge should have granted the review. Also held a judge has no jurisdiction to determine an unpleaded issue notwithstanding party acquiescence, following Sande and Sheikh and declining to follow Odd Jobs.
For this reason alone, I would allow the appeal.p. 6
Wrote the judgment
Wrote a separate concurring judgment agreeing the appeal should be allowed. Held the trial judge misapprehended the matter, that errors apparent on the record warranted review, and that in awarding compensation the judge acted in excess of jurisdiction since compensation was never pleaded.
In the circumstances, the learned judge acted wrongly and in excess of jurisdiction in proceeding with the determination of compensation without ascertaining that he had jurisdiction so to do.p. 12
Wrote the judgment
Dissented. Held that where parties acquiesce in an unpleaded issue being tried and leave it to the court, the issue becomes properly before the court (following Odd Jobs v Mubia and Nkalubo v Kibirige); there was no error on the face of the record and no failure of justice; further, the appellant, having paid Kshs 1 million under the decree, had approbated the judgment and could not attack it. Would have dismissed the appeal with costs.
I would on my part dismiss the appeal with costs and remit the case to the superior court for amendment of the decree to accord with this decision.p. 16
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 4626 of 1992
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's statutory appellate powers (the judgment does not cite a specific constitutional provision); the appeal lay from the High Court's ruling refusing review under section 80 of the Civil Procedure Act and Order 44 rule 1 of the Civil Procedure Rules.
Relief refused
#Lakha JA's proposed disposition dismissing the appeal with costs and remitting the case for amendment of the decree
Outvoted by the majority of the bench
Costs
Each party will bear its own costs of this appeal.
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.
the order of the Court is that the appeal is allowed, the ruling of Hayanga, J., which is appealed against is hereby set aside, the City Council's application for review is hereby allowed and the judgment of Hayanga, J. of 27th September, 1995, is set aside together with such consequential acts derived therefrom. Each party will bear its own costs of this appeal.
In our view, the only way to raise issues before a Judge is through the pleadings 'and as far as we are aware, that has always been the legal position.
It can be' said of an error that it is apparent on the face of the record when it is obvious and selfevident and does not require an elaborate argument to be established
Moreover strange results would follow if a judge were free to determine issues not properly before him.
In the circumstances, the learned judge acted wrongly and in excess of jurisdiction in proceeding with the determination of compensation without ascertaining that he had jurisdiction so to do.
Determination of an issue even if unpleaded does not disclose an error on the face of the record if the parties acquiesced in such a determination and they left such an issue for the decision of the court.
the court has unfettered discretion to review its own decrees of orders for any sufficient reason.
Issues in the judgment
#The judgment contains an internal inconsistency in the record of the High Court proceedings: the valuer is referred to as 'Mr. Aritho' in the narrative but as 'Mr. Gitonga Ritho' in the quoted judgment of Hayanga J.
Tunoi JA's judgment states 'Against that decision the respondent has now appealed to this Court' where the appellant (Nairobi City Council) is the party appealing; this appears to be a drafting slip in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muchui v Nairobi City County Gov’t (Environment and Planning Miscellaneous Application E011 of 2025) [2026] KEELC 350 (KLR)[2026] KEELC 350 (KLR)29 Jan 2026
- Henry Wainaina Kihoro & 2 others v John Maina Mburu & another [2019] KEELC 4768 (KLR)[2019] KEELC 4768 (KLR)7 Feb 2019
- National Industrial Credit Bank Limited v Barclays Bank of Kenya Limited & another [2018] KECA 709 (KLR)[2018] KECA 709 (KLR)16 Mar 2018applied
- Emily Wairimu Ciira v Nancy Wanjiru Njuguna [2017] KEELC 1557 (KLR)[2017] KEELC 1557 (KLR)6 Oct 2017applied
- Paul Odhiambo Edward Gondi v National Bank of Kenya Ltd [2015] KECA 146 (KLR)[2015] KECA 146 (KLR)11 Dec 2015followed
- Charles Rono Tomno t/a Mutei Wholesalers v Rift Valley Bottlers Ltd [2015] KECA 292 (KLR)[2015] KECA 292 (KLR)29 Oct 2015applied
Cite this brief
#Cite this brief
Caselaw, "Nairobi City Council v Thabiti Enterprises Ltd (Civil Appeal 264 of 1996) [1997] KECA 59 (KLR)", Case Analysis (1997). Civil Appeal No. 264 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/59/eng@1997-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.