CHURCH COMMISSIONER OF MOUNT KENYA & ANOTHER v VICAR IN CHARGE & PARISH COMMITTEE C.P.K. KANUNGA PARISH & ANOTHER [1997] KECA 112 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that judges cannot grant injunctions nobody asked for in the pleadings, and losing parties normally pay costs.
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 learned judge erred in making a final order of injunction which was neither pleaded nor argued
Key legal issues
#Whether a final order of injunction may be granted where it was neither pleaded nor argued
It may not; an order of that kind is made in error and is liable to be set aside on appeal.
The court accepted the appellants' sole ground of appeal, that the judge made a final order of injunction which was neither pleaded nor argued. The respondent's counsel properly conceded the appeal. The court treated the grant of relief beyond the pleadings and submissions as an error justifying setting aside the superior court's order and dismissing the injunction application.
Costs of the appeal where the respondent concedes
Costs follow the event; a concession does not of itself justify departing from the normal rule on costs.
Counsel for the respondent conceded the appeal but prayed that each party bear its own costs. The court held that the normal rule should not be departed from absent reason, and awarded the appellants costs of the appeal, with the injunction application also dismissed with costs in the court below.
Legal principles established
#- A court cannot grant a final order of injunction that was neither pleaded nor argued before it; such an order is made in error and will be set aside on appeal.
Court orders
#- 1.Both appeals allowed with costs
- 2.Order of the superior court set aside
- 3.The application for injunction in the court below stands dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2281 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory order of the High Court (statutory appellate jurisdiction; no specific constitutional provision stated in the judgment)
Relief refused
#Respondent's prayer that each party bear its own costs of the appeal
The court held that costs must follow the event absent reason to depart from the normal rule
Costs
Both appeals allowed with costs; the order of the superior court set aside; the application for injunction in the court below dismissed with costs.
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 main ground of appeal is that the learned judge made a final order of injunction which was neither pleaded nor argued. In the circumstances the order of the learned judge was in error.
Accordingly, both the appeals are allowed with costs and the order of the superior court is set aside. The application for injunction in the court below stands dismissed with costs.
Issues in the judgment
#The cause title lists the second respondent in the singular ('RESPONDENT') although there are two respondents; the coram and body of the ruling are otherwise internally consistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CHURCH COMMISSIONER OF MOUNT KENYA & ANOTHER v VICAR IN CHARGE & PARISH COMMITTEE C.P.K. KANUNGA PARISH & ANOTHER [1997] KECA 112 (KLR)", Case Analysis (1997). Civil Appeal 258 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/112/eng@1997-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.