Wambui Kimithi & 2 others v Mary Wangui Muhindi
The bottom line
#The Court of Appeal struck out an application because the lawyers asked for the wrong orders, showing courts won't fix careless drafting.
What this practically means
#Executive summary
#Key legal issues
#Whether a motion whose heading seeks extension of time but whose body contains no such prayer can succeed
No. The heading cannot cure the absence of a prayer in the body of the motion; the application does not lie and must be struck out.
The court contrasted the motion's heading, which referenced extension of time, with the prayers in the body, which sought only stay of execution, stay of proceedings and an injunction. Relying on David Sironga Ole Tukai v Francis Arap Muge, the court held that parties are bound by their pleadings and a court cannot grant orders not sought. The omission was aggravated by the applicants being counsel-represented and by the absence of any mention of the prayer in the supporting affidavit.
Whether a court may fill gaps left negligently by a party in its pleadings
No. A court is not in the business of filing gaps negligently left by a party, especially where the party is represented by counsel.
The court emphasized the adversarial nature of litigation, in which parties formulate their own cases, and declined to rescue the applicants from their own drafting omission. The fact that counsel drew the motion and that the supporting affidavit made no mention of the extension-of-time prayer confirmed that the omission was substantive, not a mere clerical slip.
Legal principles established
#- A court cannot grant orders or remedies that have not been sought by a party; parties are bound by their own pleadings and set the agenda in adversarial litigation
Court orders
#- 1.The motion on notice dated 29th May, 2020 is struck off with costs to the respondent
- On appeal from
- Environment and Land Court
- ELC Cause No. 431 of 2012 (also referred to as ELC 143 of 2012) at Nairobi
- Jurisdiction invoked
- Section 3(1) of the Appellate Jurisdiction Act, Cap 9 and Rules 4, 5(2)(b) and 6(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lloyd Mugo Josphat & 3 others v Mwanahamisi Masudi[2025] KECA 2103 (KLR)5 Dec 2025followed
Cite this brief
#Cite this brief
Caselaw, "Wambui Kimithi & 2 others v Mary Wangui Muhindi", Case Analysis (2021). Motion on notice dated 29th May, 2020 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/672/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.