Samuel Ndiba Senior & 2 others v Esther Wangari Kihara [2016] KECA 46 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot raise a limitation defence for the first time on appeal—it must be pleaded and argued at trial.
What this practically means
#Executive summary
#Key legal issues
#Entertainment of a plea of limitation for the first time on appeal
The Court declined to entertain the limitation ground because it was never pleaded or raised before the trial court.
The general rule is that new pleas cannot be taken on appeal unless pleaded or considered at trial. Limitation is a mixed question of fact and law, requiring proof of when the cause of action accrued, and must be specifically pleaded under rule 4(1) of Order 2 CPR 2010. Raising it at this late stage would ambush the other party and unduly advantage the appellants, who were represented by counsel throughout the trial.
Fair hearing where judgment is written by a judge who did not hear the witnesses
No breach of fair hearing occurred; the successor judge may act on the recorded evidence, particularly with the parties' consent.
The evidence was recorded by Shields, J. and Kubo, J. under the prescribed procedure, which allows a successor judge to proceed from where the predecessor left. Counsel recorded a consent on 27th May 2009 that judgment be delivered by any judge in the Land Division. The record of evidence is a genuine, permanent public record presumed genuine under section 84 of the Evidence Act, and no actual prejudice was shown.
Grant of relief not specifically prayed for
The ground failed; the plaintiff's amended claim encompassed the 10.75 acres and all five sub-divisions including parcel 1121.
The plaintiff originally claimed 15.75 acres but amended the plaint to claim the balance of 10.75 acres after 5 acres were transferred to Samuel Kamau Gathoga. She pleaded the sub-division into five portions and sought an injunction covering them. The High Court, in its discretion, awarded the sub-divided parcel whose acreage closely corresponded to the acres claimed.
Reliance by the trial judge on copies of the register traced on the record
The judge did not conduct an outside search; the green cards were already annexed to an affidavit on the court record and their accuracy was not impugned.
Order XX rule 5A CPR required production of certified copies of the title before a judgment altering registered land title. The copies of the register were annexed to the plaintiff's affidavit of 11th September 1980 in support of the injunction application and were thus on the record. The court traced them from the record itself, not from an outside source, and their accuracy was not challenged.
Whether the trust and the acreage were proved on a balance of probability
On re-evaluation of the totality of the evidence, the Court was satisfied the trial judge reached the correct decision.
It was common ground that the land of the Wangari and Wanjiru houses was registered in the deceased defendant's name and that he admitted holding some land in trust for the house of Wanjiru. Evidence from a demarcation committee member established the acreages. The claim of an independent 20-acre acquisition was rejected for lack of concrete evidence and because the issue was not put in cross-examination.
Legal principles established
#- A party cannot take up a new plea or contention on appeal where it was not pleaded or considered by the trial court; limitation is a mixed question of fact and law that must be specifically pleaded and raised before the trial judge.
- Where a judge is prevented from concluding a suit, the successor judge may act on evidence recorded by the predecessor and deliver judgment, especially where parties consent.
- Where a prayer for judgment would alter the title to registered land, a certified copy of the title must be produced before judgment is delivered; a judge may rely on copies of the register already on the court record.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3859 of 1979
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment and decree of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Ndiba Senior & 2 others v Esther Wangari Kihara [2016] KECA 46 (KLR)", Case Analysis (2016). Civil Appeal No. 172 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/46/eng@2016-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.