HIGHWAY CARRIERS LIMITED & COAST HAULIERS v AWADH MARUS [1986] KECA 88 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a party who does not challenge evidence at trial loses, and that courts must only consider evidence within the pleadings.
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 amended plaint was properly before the court, and whether leave was required for the amendment
- 2.Whether evidence of a sub-contracting system involving Coast Hauliers could be led outside the pleadings
- 3.Whether the addition of Coast Hauliers as an additional plaintiff was proper
- 4.Whether judgment should have been entered for the plaintiff on the short delivery of oil drums and, if so, for what amount
- 5.Whether the judgment on the counter-claim of Kshs 7,059.35 should stand
Key legal issues
#Whether evidence of sub-contracting and the involvement of Coast Hauliers could be received outside the pleadings
The sub-contracting system was not relevant and could not be led outside the pleadings; contacts between the defendant and Coast Hauliers were outside the pleadings which established the contract between the defendant and Highway Carriers.
The defence and counterclaim themselves established the contract between the defendant and the particular plaintiff, and the defendant had counterclaimed against that plaintiff. Evidence going outside the pleadings is inadmissible, and no fraud on innocent third parties was established. There was no reason to join Coast Hauliers; had they been joined they should have been properly treated as parties and they took no part in the proceedings.
Whether the trial judge should have entered judgment on the unchallenged evidence of short delivery
Judgment had to be entered for the plaintiff on the pleadings and the unchallenged evidence of short delivery of drums valued at Kshs 33,652.00; the judge erred by deciding the case on the view that no contract existed with this plaintiff.
All three of the plaintiff's witnesses testified that the shortage occurred; there were twenty-three empty drums and one leaking drum, and an invoice for Kshs 33,652.00. The defendant neither cross-examined these witnesses nor called rebuttal evidence. Had the judge analysed the pleadings and drawn issues before trial, judgment would clearly have followed for the plaintiff.
Whether leave was required for the first amendment of the plaint after directions had been given
While the appellant's argument under order 6A rule 1 may have been technically correct, the trial judge's order deeming the amendment properly filed was a reasonable order necessary to join issues on unresolved claims.
Directions had been given in September 1977 which meant the pleadings were closed. Aragon J in October 1983 granted leave to amend and deemed the amended plaint properly filed, bypassing the argument that leave was not required. Some order was necessary to join issues on the unresolved claims, and the judge's view was reasonable, though the question whether a fresh defence is needed after leave to amend was left open.
General rules on leave to appeal against interlocutory rulings
A litigant should be allowed to exercise the constitutional right to appeal where there are arguable issues, but trials should as far as reasonably possible proceed to conclusion, with interlocutory matters taken up in the appeal after judgment.
A stay of proceedings during an interlocutory appeal is usually unsatisfactory; different considerations apply to injunctions and other far-reaching interlocutory orders such as stays pending arbitration clauses. Whether the appeal would be rendered nugatory may be relevant. Leave may be granted while a stay is refused, and arbitrary refusal of leave should be avoided.
Legal principles established
#- Issues must be drawn upon the pleadings and evidence may only be led within the pleadings on those issues
- Evidence cannot be led outside the pleadings
- Where issues from the pleadings are supported by unchallenged evidence, judgment must follow on those issues
Court orders
#- 1.Appeal allowed and the judgment dismissing the plaintiff's suit set aside
- 2.Judgment substituted for the plaintiff in the sum of Kshs 33,652.00 on the plaint
- 3.The award of Kshs 7,059.35 on the counter-claim allowed to stand, giving a final judgment of Kshs 26,592.65
- 4.The award of interest and costs on Kshs 7,059.35 set aside
- 5.Interest of 12% awarded to the plaintiff on the final judgment sum
- 6.Plaintiff awarded half the costs in the court below and the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Civil Case No 494 of 1976
- Jurisdiction invoked
- Right of appeal from the High Court having suffered judgment (plaintiff earned the absolute right to appeal having suffered judgment on the counter-claim and dismissal of its suit)
Relief refused
#Full costs of the proceedings below
The plaintiff was greatly to blame for the tortuous proceedings, so only half the costs were awarded
Interest and costs on the counter-claim award
Set aside as part of the adjustment of the final judgment
Costs
Plaintiff awarded interest of 12% on the final judgment of Kshs 26,592.65; plaintiff awarded only half the costs in the court below and the full costs of the appeal as the successful appellant.
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.
There is only one precept in point; and that is that issues are drawn upon the pleadings and evidence is led within the pleadings to those issues.
It is trite law that evidence cannot be led outside the pleadings.
It is quite plain that on the issues for trial arising from the pleadings, and on the evidence relevant to these issues, which was not challenged by the defence, judgment had to be entered without doubt for the plaintiff in the sum claimed Kshs 26,592.65.
On that basis, I would allow the appeal and set aside the judgment dismissing the suit.
I would substitute judgment for the plaintiff in the sum of Kshs 33, 652.00 on the plaint, I would allow the award of Kshs 7,059.35 on the counter claim to stand, giving rise to a final judgment of Kshs 26,592.65
A litigant should be allowed to exercise his constitutional right to appeal when there are arguable issues to debate.
Issues in the judgment
#The judgment text contains a duplicated sentence in the passage on interlocutory appeals
Coast Hauliers is listed as the second appellant in the cause title but took no part in the proceedings and its joinder as additional plaintiff was disapproved
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HIGHWAY CARRIERS LIMITED & COAST HAULIERS v AWADH MARUS [1986] KECA 88 (KLR)", Case Analysis (1986). Civil Appeal No 104 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/88/eng@1986-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.