Chalicha Farmers Co-operative Society Limited v Odhiambo & 9 others (Civil Appeal 27 of 1986) [1987] KECA 70 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a registered landowner can evict occupants, and judges cannot award land based on sympathy or government policy never raised in the case.
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 1st respondent could properly represent the other defendants without written authority and without compliance with Order 1 rules 8 or 12 of the Civil Procedure Rules
- 2.Whether judgment in formal proof should have been entered against defendants who did not enter appearance, file defences or attend the hearing
- 3.Whether the trial judge could grant relief (allocation of 5 acres per defendant) founded on public policy and long occupation that was never pleaded and for which there was no counterclaim
- 4.Whether government or public policy on squatters could defeat the plaintiff's registered title to the suit land
Key legal issues
#Representation of defendants without written authority
The trial judge erred in allowing George Odhiambo to represent and proceed for defendants who neither entered appearance nor filed defences; Order 1 rules 8 or 12 of the Civil Procedure Rules should have been followed, causing a miscarriage of justice.
Only four of ten defendants entered appearance and filed defences; one who did neither attended and cross-examined witnesses. The judge treated the 1st respondent as spokesman without written authority filed in court. The defences filed by an advocate did not state a representative basis. The correct course was formal proof and judgment against defaulting defendants. Gachuhi JA treated this as a miscarriage of justice, while Apaloo JA, concurring in outcome, regarded the lack of written authority as a barren technicality causing no prejudice.
Relief outside the pleadings
The trial judge's order allocating each defendant 5 acres was a nullity, being founded on unpleaded equitable considerations of public policy and long occupation, with no counterclaim.
The judge found the society owned the land and the defendants had no lawful justification to remain, yet granted land on a 'sympathetic approach'. The Court of Appeal, applying Captain Harry Gandy v Caspair Air Charters Ltd and Bhag Bhari v Mehdi Khan, held that cases must be decided on the issues on the record; unpleaded issues must be placed on the record by amendment. The order was not one of the prayers sought by either party.
Squatter policy and registered title
Public or government policy on resettling squatters cannot defeat the registered title of a bona fide purchaser for value without notice; any breach of the resettlement understanding was the Settlement Fund Trustees', not the purchaser's.
The trial judge invoked the government's policy of providing for squatters. The Court of Appeal held that such policy, not reflected in legislation, cannot determine rights in litigation. The obligation to excise land for resettlement lay with the Settlement Fund Trustees before the sale; the appellants, as straightforward purchasers, could not be ordered to do what lay outside their means. The respondents, having acquired no title even adverse, were trespassers.
Legal principles established
#- Relief not founded on the pleadings cannot be granted; a court may not decide issues it raises itself without amendment.
- A court is governed by principles of law, not the hardship of an individual case; a judge's sympathy cannot defeat a party's legally proven right.
- Government policy that is not reflected in legislation cannot determine rights or impose liabilities in litigation.
- A registered owner of land is prima facie entitled to exclusive possession as against the whole world, and persons in occupation without title, licence or employment are trespassers.
Court orders
#- 1.Appeal allowed with costs
- 2.Judgment of the High Court set aside
- 3.Judgment entered for the appellants/plaintiffs
- 4.Respondents/defendants ordered to move out of the land, with three months from the date of the judgment before they are evicted
- 5.Appellants to have the costs of the appeal and of the suit below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Gachuhi JA wrote the leading judgment. He held that the trial judge erred in allowing George Odhiambo to represent defendants who had not given written authority or complied with Order 1 rules 8 or 12 of the Civil Procedure Rules, and erred in granting relief (5 acres per defendant) never pleaded, since no counterclaim existed. He would allow the appeal, set aside the High Court orders, enter judgment for the plaintiff as per prayers (a), (b) and (c), and give the respondents three months to vacate.
I would allow this appeal with costs. I would set aside the orders made by the High Court and substitute therefor by entering judgment for the plaintifi as per prayers (a),(b),(c).p. 6
Wrote the judgment
Platt JA agreed with Gachuhi JA's reasoning, adding that the judge ought to have stopped the trial to clarify in what capacity the respondents were before him. He emphasised that rules embodying natural justice cannot be dismissed as technicalities swept away by section 3A of the Civil Procedure Act, and noted the respondents were entitled to their day in court but had pleaded no defence or counterclaim entitling them to remain.
In my opinion where the rules are dealing with the precepts of natural justice, the courts would be slow to conclude that they are mere technicalities, which may be swept under the carpet by the brush of section 3A of the Civil Procedure Act.p. 7
Wrote the judgment
Apaloo JA agreed the appeal should be allowed but reached his conclusion by his own reasoning. He treated the lack of written authority under rule 12 of Order 1 as a barren procedural complaint causing no prejudice, a technicality to abjure under section 3(2) of the Judicature Act. On the merits, the Society held registered title and the respondents were trespassers; the trial judge's sympathy-based order allocating 5 acres each was wholly indefensible, and unlegislated government policy cannot determine rights in litigation.
In my judgment, that is a wholly indefensible order. A court is governed by principles of law, not the hardship of any individual case.p. 9
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (appellate jurisdiction under the Constitution and the Judicature Act; no specific article is cited in the judgment)
Relief refused
#Retrial of the suit
The appellants agreed to a retrial but the respondents objected, preferring determination on the merits; the court proceeded to pronounce judgment on the appeal.
Respondents' offer to join the appellant society as members in order to share the land
The land had already been sub-divided and shared out, including the camp area.
Costs
The appellants will have the costs both here and below (of the appeal and of the suit in the High Court).
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.
As a rule relief not founded on the pleadings will not be given.
Cases must be decided on the issues on the record, and if it is desired to raise other issues they must be placed on the record by amendment.
In my judgment, that is a wholly indefensible order. A court is governed by principles of law, not the hardship of any individual case.
But Government policy perse, cannot be a determinant of rights or the imposer of liabilities in litigation where such policy is not refiected in legislation.
The order of the court will be that the judgment of the High Court is set aside and there will be substituted therefor, an order that judgment be entered for the appellants/plaintifis. The respondents/ defendants are ordered to move out of the land, but they may have three months from today’s date before they are evicted. The appellants will have the costs both here and below.
Issues in the judgment
#The judgment's internal reasoning on representation differs between judges: Gachuhi JA treats the want of written authority as a miscarriage of justice, while Apaloo JA calls the same complaint 'a barren one' - a technicality to be abjured under section 3(2) of the Judicature Act.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Issah v Kambu & 18 others (Civil Appeal E050 of 2022) [2026] KECA 329 (KLR)[2026] KECA 329 (KLR)27 Feb 2026
- Agingu v Owiti & 2 others (Civil Appeal 389 of 2019) [2025] KECA 188 (KLR)[2025] KECA 188 (KLR)7 Feb 2025followed
Cite this brief
#Cite this brief
Caselaw, "Chalicha Farmers Co-operative Society Limited v Odhiambo & 9 others (Civil Appeal 27 of 1986) [1987] KECA 70 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/70/eng@1987-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.