Evans Gundo v Naftali Sule [2002] KECA 250 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a judge cannot award relief nobody asked for in the pleadings — such a judgment is void and must be retried.
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 superior court properly granted relief and entered judgment on a basis not prayed for in the pleading before it
- 2.What orders should follow where a judgment is founded on matters not pleaded
Key legal issues
#Whether a court may grant relief and enter judgment on a basis not prayed for in the pleadings.
It may not. Relief granted on matters not pleaded amounts to no judgment; such a decree is a nullity and falls to be set aside on appeal.
Having briefly heard counsel, the Court of Appeal was satisfied that the High Court had granted relief and given judgment on the basis of a pleading which did not pray for that relief. Because the decree was not anchored in any claim actually before the trial court, it amounted to no judgment at all. The court treated the defect as fundamental and incurable on appeal, declining to sustain the decree and instead setting it aside. The remittal was directed on a priority basis before a judge other than the trial judge, pursuant to rule 31 of the Court of Appeal Rules, so that the dispute proceeds to a fresh trial.
What orders follow where a judgment is founded on unpleaded matters.
The appeal is allowed with costs, the decree is set aside, and the case is remitted for a new trial on a priority basis before another judge under rule 31 of the Court of Appeal Rules.
The court did not substitute its own decision on the merits, since the defect went to the foundational pleading rather than to the evidence. The appropriate course was to return the parties to the High Court for a fresh trial in which claims and relief are properly pleaded and prayed for. Rule 31 of the Court of Appeal Rules governed the remittal, and the court directed that the retrial be heard on a priority basis before a judge other than the one who delivered the impugned judgment, with the costs of the appeal going to the successful appellant.
Legal principles established
#- A court may not grant relief or enter judgment on a basis not pleaded; a judgment founded on matters not prayed for in the pleadings is no judgment at all and must be set aside on appeal.
- Where a judgment is set aside because relief was granted on unpleaded matters, the case is remitted for a new trial before another judge under rule 31 of the Court of Appeal Rules.
Court orders
#- 1.The appeal is allowed with costs
- 2.The decree of the superior court (High Court) is set aside
- 3.The case is remitted to the superior court for a new trial on a priority basis before another judge, pursuant to rule 31 of the Rules of this Court (Court of Appeal Rules)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 251 of 1998
- Jurisdiction invoked
- Not expressly stated in the judgment. The Court of Appeal exercised its appellate jurisdiction over the judgment and decree of the High Court at Kisumu, and made the remittal order under rule 31 of 'the Rules of this Court' (the Court of Appeal Rules).
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.
Having briefly heard the advocates for the parties, we are satisfied that the Court granted relief and gave judgment on the basis of a pleading which did not pray for the same.
This amounted to no judgment - relief on the basis of matters not pleaded.
The appeal is, therefore, allowed with costs, the decree of the superior court is set aside
for a new trial on a priority basis before another judge
Issues in the judgment
#The certified copy contains apparent transcription/typographical errors in the final orders: 'puremitted' appears where 'remitted' is intended, and 'rsuant' where 'pursuant' is intended.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Gundo v Naftali Sule [2002] KECA 250 (KLR)", Case Analysis (2002). Civil Appeal No. 234 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/250/eng@2002-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.