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Court of AppealStruck OutMotion on notice dated 29th May, 2020 (Court of Appeal, Nairobi)· [2021] KECA 672 (KLR)

Wambui Kimithi & 2 others v Mary Wangui Muhindi

Court of Appeal of Kenya
23 April 2021
649 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a decision of M. K. Koome, JA, sitting as a single Judge of the Court of Appeal at Nairobi, on a motion on notice dated 29th May, 2020. The motion's heading indicated that it sought extension of time within which to file and serve a Notice and Record of Appeal out of time against the judgment and decree of the Environment and Land Court (Obaga, J.) delivered on 13th February, 2020 in ELC Cause No. 431 of 2012 (elsewhere referred to as ELC 143 of 2012), Mary Wangui Muhindo v Wambui Kamithi & 2 Others. However, the prayers in the body of the motion sought only a stay of execution, a stay of further proceedings, and an injunction restraining the respondent from interfering with the applicants' possession of the suit property LR No. Dagoretti/Ruthimitu/T.243. The respondent opposed, noting that the applicants had never served a notice of appeal or bespeaking letter. The court held that a party is bound by its own pleadings and that a court cannot grant orders not sought, applying David Sironga Ole Tukai v Francis Arap Muge. Noting that the applicants were represented by counsel and that the supporting affidavit made no mention of the extension-of-time prayer, the court declined to fill the drafting gap. The motion was struck out with costs to the respondent. No decision on the merits of the intended appeal was made.

Key legal issues

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01

Whether a motion whose heading seeks extension of time but whose body contains no such prayer can succeed

Holding

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.

Reasoning

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.

p. 2
02

Whether a court may fill gaps left negligently by a party in its pleadings

Holding

No. A court is not in the business of filing gaps negligently left by a party, especially where the party is represented by counsel.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.