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Court of AppealPartially AllowedCivil Appeal No. 241 of 1998

Balbir Singh t/a Deluxe Furnishing House v Kitamba Distributors Limited & 4 others [2001] KECA 284 (KLR)

Court of Appeal
10 August 2001
1,268 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal wiped out a KShs 686,000 award because the winning party never properly claimed the money in its court documents.

What this practically means

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Executive summary

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This is the judgment of the Court of Appeal at Kisumu (Tunoi, Lakha and Keiwua, JJ.A) delivered on 10 August 2001 in a first appeal by Balbir Singh trading as Deluxe Furnishing House, defendant below, against the judgment of Wambilyangah J dated 17 February 1998 in Kisumu H.C.C.C. No. 18 of 1997 awarding the respondents vacant possession of Plot No. Kisumu/Municipality/Block 7/394 and general damages of K.Shs. 686,000 with costs and interest. The defendant had been permitted by the Kisumu Municipal Council in September 1970 to store timber on the plot temporarily for eight months; in May 1986 the Government allocated the plot to the first respondent, who sold it to the second to fifth respondents. The plaintiffs sued for a permanent injunction, vacant possession, mesne profits and costs; an injunction was granted on 3 February 1997 and an eviction order issued on 7 February 1997, pursuant to which possession was recovered before the hearing. The appeal raised two contentions: first, that the judge erred in awarding general damages where no such relief was sought or prayed for in the amended plaint and where the mesne profits claim was neither pleaded nor proved; secondly, that the order for eviction and possession was spent because the plaintiffs had already recovered possession. Allowing the appeal with three-fourths costs, the court held that cases are decided on the pleadings and no relief can be granted which is neither sought nor prayed for, and that no court acts in vain where the relief has already been satisfied. The decree was varied by adding dismissal of the plaintiffs' suit with costs to the defendant and wholly deleting the monetary award; the decretal sum held in a joint account was to be paid out to the defendant; and the order for vacant possession was confirmed, with no execution to issue.

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 law in making an award of general damages when no relief for general damages was sought or prayed for in the Amended Plaint.
  2. 2.Whether the claim for mesne profits was properly pleaded and proved, the amended plaint having set out sums of mesne profits only in the prayers and no evidence having been led to justify the amounts claimed.
  3. 3.Whether an order for eviction or recovery of possession could properly be made when the relief had already been satisfied, the plaintiffs having recovered possession pursuant to the eviction order issued on 7 February 1997.

Key legal issues

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01

Whether general damages could be awarded when no such relief was sought or prayed for in the Amended Plaint.

Holding

No. The judge erred in law in making the award of general damages; the amended plaint sought only an injunction, vacant possession, mesne profits and costs, and a court cannot grant relief which is neither sought nor prayed for.

Reasoning

The appellant's first contention was that no relief for general damages was sought or prayed for in the Amended Plaint and there was no basis in law for the award. The court endorsed the principle that cases are decided on the pleadings, so a monetary award of general damages in a possession suit, where the plaint claimed only mesne profits in its prayers, was an error of law. The award formed part of the decree which the court wholly deleted.

p. 2
02

Whether the claim for mesne profits was properly pleaded and proved.

Holding

No. The amended plaint set out sums of mesne profits only in the prayers without pleading a case for mesne profits, and the sums claimed were not proved by evidence; the judge erred in law in making any monetary award.

Reasoning

Even if the award could be characterised as mesne profits rather than general damages, it failed on both pleading and proof. The plaint merely inserted sums in the prayers without pleading the factual basis for mesne profits, and no evidence was led to support or justify the amounts. The court held that, with respect, the learned judge erred in law in making any monetary award, and it wholly deleted the monetary award from the decree.

p. 2
03

Whether an order for eviction or recovery of possession could properly be made where the plaintiffs had already recovered possession.

Holding

No. Possession had been recovered pursuant to the eviction order of 7 February 1997, as the evidence of both sides and the record showed; no further order was required and the judge erred in making one, though the order for vacant possession was confirmed with no execution to issue.

Reasoning

The plaintiffs' witnesses and the defendant himself testified that possession had been surrendered following the court order of February 1997, and the record contained the eviction order. The judge either overlooked that material or failed to give it effect. Applying the principle that no court acts in vain, the court held that where the plaintiff has already recovered possession no further order is required; it confirmed the vacant possession order for avoidance of doubt but barred execution.

p. 2

Legal principles established

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  • A court cannot grant relief which was neither sought nor prayed for in the pleadings; cases are decided on the basis of the pleadings.
  • A claim for mesne profits must be pleaded as a case, not merely quantified in the prayers, and must be proved by evidence before a monetary award can be made.
  • A court should not make an order where the relief sought has already been satisfied; where a plaintiff has already recovered possession, no further order for possession is required.

Court orders

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  1. 1.Appeal allowed with three-fourths costs.
  2. 2.Decree of the superior court dated 17 February 1998 in Kisumu H.C.C.C. No. 18 of 1997 varied by adding an order dismissing the plaintiffs' suit with costs thereof to the defendant.
  3. 3.The monetary award (general damages of K.Shs. 686,000) wholly deleted from the decree.
  4. 4.The decretal sum deposited in the joint account of the advocates of the parties in Barclays Bank Kisumu Branch, pursuant to the consent order of 8 October 1998 as a condition of stay, to be paid out forthwith to the defendant.
  5. 5.The orders for vacant possession confirmed, but no execution to issue since possession was handed over by the defendant to the plaintiffs during the course of the hearing.

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 18 of 1997
Jurisdiction invoked
Not expressly stated in the judgment; the matter reached the Court of Appeal as a first appeal from the final judgment of the High Court of Kenya at Kisumu in a civil suit, under the Court's appellate jurisdiction over civil appeals from the High Court.

Relief refused

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Setting aside of the High Court order for eviction and/or vacant possession

Although the court found the judge erred in making the order because the plaintiffs had already recovered possession, it confirmed the order for vacant possession for the avoidance of doubt while barring execution.

p. 3

Full costs of the appeal

Although the appeal succeeded, costs were limited to three-fourths.

p. 3

Costs

Appeal allowed with three-fourths costs to the appellant; the plaintiffs' suit dismissed with costs thereof to the defendant; and the decretal sum deposited in the joint account of the advocates in Barclays Bank Kisumu Branch (pursuant to the consent order of 8 October 1998 as a condition of stay) to be paid out forthwith to the defendant.

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.

Cases are decided on the basis of pleadings and no relief can be granted which is neither sought nor prayed for.
p. 2Relief must be sought in the pleadings
It is trite that no Court acts in vain and if as in the case the plaintiffs had already recovered possession then no further order was required to be made and the learned judge, with respect, erred in doing so.
p. 2A court must not act in vain where the relief has already been satisfied
the decree of the superior court dated 17 February 1998 in the High Court of Kenya being Kisumu Civil Case No. 18 of 1997 be and is hereby varied by adding an order dismissing the plaintiffs' suit with costs thereof to the defendant and by wholly deleting the monetary award
p. 3Final orders - variation of the decree and dismissal of the suit
For the avoidance of doubt the orders for vacant possession is confirmed but no execution in respect thereof is to issue since possession was handed over by the defendant to the plaintiffs during the course of the hearing.
p. 3Final orders - vacant possession confirmed, no execution to issue
It is further ordered that the decretal sum deposited in a joint account of the advocates of the parties in Barclays Bank Kisumu Branch pursuant to a consent order of 8 October 1998 as a condition of stay be paid out forthwith to the defendant.
p. 3Final orders - release of the decretal sum to the defendant

Issues in the judgment

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minor

The trial judge's surname is spelled inconsistently within the judgment: 'Wambilyangah' in the appeal header ('Justice I.C.C. Wambilyangah') but 'Wambiliangah' in the body.

minor

The appellant's business name appears as 'DELUXE FURNISHING HOUSE' in the caption but as 'DELUXE FURNISHERS HOUSE' in the body of the judgment.

minor

Internal tension: the court holds that the learned judge erred in making an order for possession because the plaintiffs had already recovered possession, yet the final orders confirm the order for vacant possession (while barring execution), even though the appellant's appeal was directed against that order.

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, "Balbir Singh t/a Deluxe Furnishing House v Kitamba Distributors Limited & 4 others [2001] KECA 284 (KLR)", Case Analysis (2001). Civil Appeal No. 241 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/284/eng@2001-08-10

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