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Court of AppealPartially AllowedCivil Appeal No. 258 of 1996

THE CHURCH COMMISSIONER OF MOUNT KENYA & ANOTHER vs VICAR IN CHARGE & PARISH COMMITTEE C.P.K. KANUNGA PARISH & ANOTHER [1997] KECA 331 (KLR)

Court of Appeal
20 January 1997
AAA.M. AkiwumiPhilip Kiptoo TunoiP.K. TunoiALA.A. Lakha
258 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that judges cannot grant relief nobody asked for — an injunction not pleaded or urged by any party will be set aside.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Akiwumi, Tunoi and Lakha, JJ.A.) in Civil Appeal No. 258 of 1996, an appeal against an order of the High Court (Hayanga, J.) dated 22nd February 1996 in H.C.C.C. No. 2281 of 1995. The appellants, the Church Commissioner of Mount Kenya and the C.P.K. Diocese of Mount Kenya, appealed against the superior court's order. Their principal ground was that the learned judge had made a final order of injunction which was neither pleaded nor urged by any party, and that in those circumstances the order was made in error. Counsel for the respondents, Mr. Nyangau, properly conceded that the appeal had to succeed, but prayed that each party bear its own costs. The court declined that prayer, holding that costs must follow the event since there was no reason to depart from the normal rule. The court allowed both appeals with costs, set aside the order of the superior court, and dismissed the application for injunction in the court below with costs. The judgment is a single ruling of the whole court with no separate opinions and no authorities cited. Its binding proposition for lower courts is that a court errs when it grants final relief, such as an injunction, that was neither pleaded nor urged before it.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in making a final order of injunction which was neither pleaded nor urged

Key legal issues

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01

Whether a court may grant relief not pleaded or urged by the parties

Holding

A final order of injunction made without being pleaded or urged is erroneous and must be set aside on appeal.

Reasoning

The appellants' sole ground of appeal was that the judge granted a final injunction that no party had pleaded or sought. The court accepted that this rendered the order erroneous. The respondent's counsel properly conceded the appeal, and the court set aside the superior court's order and dismissed the injunction application, with costs following the event.

p. 2

Legal principles established

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  • A court cannot grant a final order of injunction that was neither pleaded nor urged before it; such an order is made in error and will be set aside on appeal.

Court orders

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  1. 1.Both appeals allowed with costs
  2. 2.Order of the superior court set aside
  3. 3.The application for injunction in the court below stands dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AA
majority
Philip Kiptoo Tunoi
majority
AL
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2281 of 1995
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (appeals against the Order of the superior court)

Relief refused

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Respondent's prayer that each party bear its own costs

The court held that costs must follow the event as there was no reason to depart from the normal rule

p. 2

Costs

Both appeals allowed with costs to the appellants; the application for injunction in the court below dismissed with costs.

Quotable passages

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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 no urged. In the circumstances the order of the learned judge was in error.
p. 2Relief must be pleaded and urged before it can be granted
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.
p. 2Final orders and disposition

Issues in the judgment

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minor

The judgment contains a typographical error in the key holding: 'neither pleaded no urged' instead of 'neither pleaded nor urged'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "THE CHURCH COMMISSIONER OF MOUNT KENYA & ANOTHER vs VICAR IN CHARGE & PARISH COMMITTEE C.P.K. KANUNGA PARISH & ANOTHER [1997] KECA 331 (KLR)", Case Analysis (1997). Civil Appeal No. 258 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/331/eng@1997-01-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.