Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a bank's Kshs 2.2 million win because the judge awarded money the bank never claimed.
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 superior court could enter judgment on a cause of action (money had and received) that was never pleaded
- 2.Whether the court could, on its own motion, grant leave to amend the plaint after judgment to introduce a new cause of action and to change the capacity in which the second and third appellants were sued
- 3.Whether the superior court should have dismissed the respondent's claim once it found the second and third appellants were principals and not agents of the first appellant
- 4.Whether the findings and consequential orders of the Commissioner of Assize ought to stand
Key legal issues
#Judgment on an unpleaded cause of action
The Commissioner of Assize erred in awarding Kshs 407,000 as money had and received when no such cause of action or relief was pleaded
The respondent's pleaded cause of action was breach of contract and the remedy sought was special damages. No claim for money had and received was pleaded or prayed for. Under the adversarial system, cases are determined on the pleadings and issues framed from them, and only evidence of facts pleaded is admissible. Granting an unpleaded remedy was therefore prima facie not open to the superior court.
Suo motu amendment of pleadings after judgment
Order VIA rule 3(1) applies only where a party seeks leave to amend; rule 5(1), though permitting suo motu amendment, does not extend to introducing new causes of action after judgment, which would cause injustice
Rule 3 could not avail the respondent because it never sought leave to amend. Rule 5 permits suo motu amendment only to determine the real question in controversy or correct defects, and questions in controversy must be raised before or during trial so parties can adduce evidence. The court acts as umpire, not inquisitor, and amendments changing the cause of action or contracting capacity at judgment stage prejudiced the appellants beyond compensable costs.
Consequences of the finding on agency
Having found the second and third appellants were principals and not agents, the superior court should have dismissed the claim against the first appellant sued as principal and against the agents of a disclosed principal
The respondent's case was predicated on the second and third appellants being agents of the first appellant. Once the court found they were principals in their own right, the suit against the first appellant as principal should have been dismissed; and the second and third appellants, impleaded as agents of a disclosed principal, could not be sued under the common-law principle. Instead, the court granted leave to re-plead their capacity, which was unlawful.
Legal principles established
#- In adversarial litigation, cases are tried and determined on the pleadings; a court must not make findings on unpleaded matters or grant relief not sought in the pleadings
- A court should not exercise its suo motu power to order amendments after the trial except to correct minor slips and omissions that perfect the record; introducing a new cause of action after judgment causes an injustice not compensable in costs
- Where a principal is disclosed, the agent is not to be sued; and where a defendant sued as principal is found not to be liable, the suit against him must fail
- The burden of proof lies on the plaintiff on a balance of probabilities, and only evidence of facts pleaded is admissible; if the evidence does not support the pleaded facts, the party with the burden fails
Court orders
#- 1.Appeals allowed
- 2.Judgment of the superior court set aside
- 3.Substituted therefor an order dismissing the plaintiff's suit against the defendants with costs
- 4.Costs of the appeal awarded to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Civil Suit No 3161 of 1997
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court under the Civil Procedure Act and rules (appeals as of right against the judgment and decree in Civil Suit No 3161 of 1997); no specific constitutional or statutory provision is cited in the judgment
- Consolidated with
- Civil Appeal No 48 of 2002
Relief refused
#Refund of Kshs 407,000 by the respondent to the first appellant (and Kshs 1,757,263 to the second and third appellants) with costs and interest as claimed
The court set aside the judgment and dismissed the suit but did not order any refund; the refund relief sought by the appellants was not granted in the final orders
Costs
The suit against the defendants was dismissed with costs; the costs of the appeal were awarded to the appellants (i.e. the respondent was to pay costs both below and on appeal)
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.
It also follows that a court should not make any findings on unpleaded matters or grant any relief which is not sought by a party in the pleadings.
in our considered view, a court should not exercise its power to order amendments suo motu after the trial except to correct minor slips and omissions which serve the purpose of perfecting the record
Secondly in our system of adversarial litigation, the Court performs the role of umpire; it does not have an inquisitorial function.
we allow the appeals, set a side the judgement of the superior court, and substitute therefore an order dismissing the plaintiff's suit against the defendants with costs
the clear principle of common law that where the principal is disclosed, the agent is not to be sued
Issues in the judgment
#The judgment states the Duke of Buccleuch and G L Baker cases for the proposition that amendments may be made even after judgment, immediately before holding that such amendments were impermissible on the facts; the citation is relied on only hypothetically ('even though'), so the authority is not followed but the passage could be misread
Party and counsel names are inconsistently spelled within the judgment (Wareham/Warehem, Kittony/Kitony) and the Coram renders Ringera's initials 'AG' while the signature block reads 'A.G RINGERA'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shelly Engineering Works Ltd v Maruru & 4 others (Civil Appeal E163 of 2023) [2026] KECA 1573 (KLR)[2026] KECA 1573 (KLR)31 Jul 2026
- Central Bank of Kenya & another v Doshi & 3 others (Civil Appeal E008 & E010 of 2023 (Consolidated)) [2026] KECA 909 (KLR)[2026] KECA 909 (KLR)15 May 2026
- Muna (Suing as the Legal Representative of the Late - Ann Wambui Muna) & 5 others v Boscardin & 5 others (Environment and Land Case 27 of 2020) [2026] KEELC 160 (KLR)[2026] KEELC 160 (KLR)21 Jan 2026applied
- Singoei & 3 others (Suing on their own behalf and on behalf of 57 others) v Marete & 2 others (Environment and Land Case 48 of 2021) [2025] KEELC 6723 (KLR)[2025] KEELC 6723 (KLR)1 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR)", Case Analysis (2004). Civil Appeals Nos 5 and 48 of 2002 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/166/eng@2004-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.