Herman P. Steyn v Charles Thys [1997] KECA 395 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if you argue an issue at trial without objection, you cannot later complain it was never in 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 trial judge erred in determining an unpleaded issue (the currency and place of the loan) that departed from the pleadings without amendment
- 2.Whether there was evidence to support the finding that the plaintiff advanced the sums in US Dollars overseas
- 3.Whether the trial judge misdirected himself on the burden of proof
- 4.Whether the appellate court should interfere with the trial judge's findings of fact
- 5.Whether the loan transaction was tainted with illegality as a breach of the Exchange Control Act
Key legal issues
#Determination of unpleaded issues
Where a party introduces an unpleaded issue, leads evidence on it, cross-examines on it, calls witnesses, and both parties address the court on it without objection, the issue becomes one for the court's determination and the judge may decide it.
The appellant himself introduced the unpleaded issue of the loan currency, led evidence, cross-examined vigorously, called witnesses, and filed written submissions on it. Neither party objected and both fully participated. Following Odd Jobs v Mubia and its progeny, the court held the trial judge was entitled to determine the issue, and the appellant could not later complain of the departure from the pleadings he had acquiesced in.
Role of the judge where pleadings depart from the evidence
Even where a party acquiesces in a grave unamended departure from the pleadings, the court is not obliged to refuse to deal with the issue; a civil dispute belongs to the parties, and the judge may decide issues left to him by their conduct.
The appellant argued the judge had a clear duty to refuse the unpleaded issue. The court disagreed, noting that in civil litigation the dispute belongs to the parties, not the judge - a judge may not even call witnesses of his own motion (Re Enoch & Zaretsky). Having acquiesced and participated, the appellant could not complain of the state of the pleadings.
Burden of proof
Onus becomes decisive only where the evidence on both sides is evenly balanced; where the tribunal weighs the evidence and reaches a determinate conclusion, the onus plays no part.
The trial judge wrote a careful judgment reviewing all the evidence, expressly preferring the plaintiff's evidence on balance and rejecting the defendant's version as unreliable. Applying Robins v National Trust Co Ltd, the court held the onus was not a determining factor since the judge reached a determinate conclusion; each party proved its respective assertion.
Appellate interference with findings of fact
A first appellate court will not interfere with a trial judge's findings of fact where there was evidence supporting the conclusion and the judge did not misappreciate the weight of the circumstances or plainly go wrong.
The trial judge had two versions of the facts before him and was entitled to prefer one where there was sufficient material showing the appellant's version was not worthy of credit. The appellate review jurisdiction exists but must be exercised with caution; no basis for interference was shown here.
Illegality under the Exchange Control Act
An illegality defence not pleaded and not among the agreed issues cannot succeed, particularly where the relevant facts (such as residence for exchange control purposes) were not fully inquired into.
The illegality contention was neither pleaded nor one of the seven agreed issues. Residence status for exchange control purposes is a question of fact determined case by case, but without a pleading or issue there was no full inquiry into the relevant facts. The court found no error in the trial judge's determination that neither party was resident in Kenya.
Legal principles established
#- A court may base its decision on an unpleaded issue where, from the course of the trial, the parties led evidence and addressed the court on it without objection, leaving the issue to the court for decision.
- Onus as a determining factor of the whole case arises only where the evidence is so evenly balanced that the tribunal can come to no conclusion; if the tribunal reaches a determinate conclusion after weighing the evidence, the onus need not be considered.
- An appellate court will not interfere with a trial judge's findings of fact where there is evidence to support the conclusion and the judge has not plainly gone wrong; the review jurisdiction is exercised with caution.
- An appellate court will not interfere with a judgment for an irregularity in the pleadings where there has been no failure of justice, lack of jurisdiction, or prejudice to the appellant.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1508 of 1984
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal from a judgment of the superior court); no specific constitutional or statutory provision is cited in the judgment.
Relief refused
#Appellant's request to set aside the judgment of US Dollars 439,587 entered against him
All five grounds of appeal failed; the unpleaded issue was properly left to the court, there was evidence for the findings, no burden-of-proof misdirection, no basis to disturb findings of fact, and no illegality established
Costs
The appeal is dismissed with costs (costs to the respondent).
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.
A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision
But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered
whilst this court has jurisdiction to review the evidence whether the conclusion of the trial judge should stand, this jurisdiction has to be exercised with caution
Accordingly and, for the reasons above stated, the appeal is dismissed with costs.
Issues in the judgment
#The judgment contains a typographical error in the appellant's name in the coram ('Charles Thy' versus 'Charles Thys' in the title) and a stray word in the text ('the appellant himself I introduced the unpleaded issue').
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.
- Mabonga (As a Recognised Agent of an Approved Agent of Joshua Mabonga Macheso) v Simiyu & 4 others (Environment and Land Case E001 of 2025) [2026] KEELC 2053 (KLR)[2026] KEELC 2053 (KLR)15 Apr 2026applied
- Charles v Cheto (Civil Appeal E046 of 2022) [2025] KECA 784 (KLR)[2025] KECA 784 (KLR)9 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Herman P. Steyn v Charles Thys [1997] KECA 395 (KLR)", Case Analysis (1997). Civil Appeal 86 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/395/eng@1997-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.