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Court of AppealDismissedCivil Appeal No. 10 of 2013 (consolidated with Civil Appeal No. 20 of 2013)· [2014] KECA 651 (KLR)

Lawrence M. Gatere t/a Coliester Machine Service v Kabare Coffee Farmers Co-operative Society & 10 others [2014] KECA 651 (KLR)

Court of Appeal
31 March 2014
2,995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal dismissed both appeals, confirming you cannot win or argue claims you never included in your court pleadings.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Visram, Koome and Otieno-Odek, JJ.A.) heard two consolidated first appeals from Ongundi, J.'s judgment of 20th December 2012 in H.C.C.C No. 46 of 2006 (High Court, Embu). The trial court had partially allowed the appellant's contractual claim for Ksh. 2,454,714/=, entering judgment for Ksh. 1,144,419/= against Kabare Coffee Farmers Co-operative Society and dismissing the balance of Ksh. 1,310,295/= and the Society's third-party claim against its former officials. In Civil Appeal No. 10 of 2013 the appellant sought the dismissed balance; in Civil Appeal No. 20 of 2013 the Society sought to set aside the award altogether. The Court dismissed both appeals. It held that the claim for sums pre-dating the contract of 22nd December 2004 was unpleaded and, being akin to special damages, had to be pleaded and specifically proved; explanations at trial were no substitute for pleading. It declined to entertain the Society's argument that the contract was void for breach of the Exchequer and Audit Act procurement rules, since that issue was not pleaded or canvassed before the trial court and the appellate court lacks original jurisdiction over it; in any event the Society could not enjoy the contract's benefits while challenging its validity. Fraud was not proved: the Society led no evidence of fraud and failed to call factory managers. Indemnity questions between the Society and the Third Parties, its agents, belonged before the Co-operatives Tribunal where the Society had already sued them. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether unpleaded claims for deliveries before the contractual date could be allowed on a first appeal

Holding

The claim is founded on the contract of 22nd December 2004; the claim for sums prior to that date was not pleaded and must fail, the claim being in the nature of special damages

Reasoning

The plaint pleaded only the agreement of 22nd December 2004; there was no pleading of any contractual relationship before that date and no claim for unjust enrichment or services rendered earlier. Since monies calculable to a cent must be claimed as special damages, they must be pleaded and specifically proved. Explanations at trial cannot substitute for pleading; the plaint should have been amended.

p. 4
02

Whether the contract was null and void for non-compliance with procurement procedures under the Exchequer and Audit Act

Holding

The point was never pleaded or canvassed before the trial court; the appellate court has no original jurisdiction to entertain it, and in any event the Society cannot keep the benefits of the contract while challenging its validity

Reasoning

The defence dated 14th August 2006 nowhere pleaded that the Exchequer and Audit Act provisions were not followed; the issue was not canvassed in submissions before the trial Judge and her judgment did not address it. An appellate court cannot pronounce on an issue not before the trial court. Goods and services were supplied under the contract, and it would be unconscionable for the Society to enjoy the benefits while challenging its validity.

p. 5
03

Whether fraud was proved against the appellant

Holding

Fraud was not proved; the Society's own Secretary/Manager confirmed due process was followed and this evidence was not challenged, and failure to call factory managers left a gap in the fraud allegation

Reasoning

The trial Judge correctly applied the rule that whoever asserts facts on which a legal right or liability depends must prove those facts. The Society led no evidence of fraud; its Secretary/Manager testified that all procedures were followed and payments were approved by the Management Committee, and that testimony was unchallenged. The factory managers who could have testified about the requisition forms were not called.

p. 5
04

Whether the Third Parties were liable to indemnify the Society

Holding

The trial Judge did not err; indemnity issues between the Society and the Third Parties, its agents, belong before the Co-operatives Tribunal where the Society has already sued them

Reasoning

The Society pleaded in its defence that the Third Parties were its agents, yet sought indemnity from them. On the principal-agent relationship pleaded, the trial Judge was right that the Co-operatives Tribunal, where the Society had already sued the Third Parties over the same issues, was the best forum, avoiding the Third Parties being punished twice over the same facts.

p. 6

Legal principles established

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  • Where monies due and owing can be calculated to a cent, they must be pleaded and specifically proved as special damages; damages claimed as special damages but not pleaded must be disallowed
  • Issues for determination in a suit flow from the pleadings, and a trial court may only pronounce judgment on issues arising from the pleadings or framed by the parties
  • A party is bound by his pleadings and explanations given in the course of hearing are not a substitute for proper pleading; amendments must be sought to introduce unpleaded claims
  • On a first appeal, the Court of Appeal must analyze and re-assess the evidence on record and reach its own conclusions
  • The Court of Appeal cannot pronounce itself on an issue that was not pleaded or canvassed before the trial court
  • A party cannot receive goods and services under a contract, enjoy the benefits thereof, and then turn around to challenge the validity of that contract

Court orders

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  1. 1.Civil Appeal No. 10 of 2013 is dismissed
  2. 2.Civil Appeal No. 20 of 2013 is dismissed
  3. 3.Each party is to bear its/his own costs in this appeal
On appeal from
High Court of Kenya at Embu
H.C.C.C No. 46 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over decisions of the High Court (Exchequer and Audit Act procurement challenge raised; appeal as of right on facts and law)

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, "Lawrence M. Gatere t/a Coliester Machine Service v Kabare Coffee Farmers Co-operative Society & 10 others [2014] KECA 651 (KLR)", Case Analysis (2014). Civil Appeal No. 10 of 2013 (consolidated with Civil Appeal No. 20 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/651/eng@2014-03-31

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