Dakianga Distributors (K) Ltd v Kenya Seed Company Umited) [2015] KECA 14 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that defendants can only rely on facts and payments specifically stated in their court pleadings, raising the debt owed by Kshs 2.3 million.
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 learned judge erred in awarding a sum of Kshs. 8,776,580/= without reconciliation of accounts
- 2.Whether the learned judge erred in awarding a sum more than the just debt proved
- 3.Whether there was proof to support the respondent's claim
- 4.Whether the appellant was entitled to credit for sums represented by cheques not pleaded in the defence but tendered in evidence
- 5.Whether the appellant was entitled to a set-off of Kshs. 2,448,000/= which was not traversed by a reply to the defence
- 6.Whether the respondent's cross-appeal for the full claimed sum of Kshs. 11,104,180/= should succeed
Key legal issues
#Whether the appellant was entitled to credit for unpleaded cheques tendered in evidence
No - the appellant was bound by its pleaded case; the trial judge erred in giving credit on sums not pleaded in the defence even though the evidence was admitted without objection
The defence pleaded only three specific cheques as replacements for the dishonoured cheques. The appellant's own witness admitted those were payments for other transactions, and the cheques he instead produced, totalling Kshs. 10,892,245/=, were not pleaded, not listed in the appellant's list of documents, and not part of the agreed issues. Having correctly held that parties are bound by their pleadings, the judge inconsistently gave credit for the unpleaded sums. Admission of evidence without objection did not license a departure from the pleadings.
The importance and binding force of pleadings in adversarial litigation
Pleadings define and delimit the matters in controversy; parties and the court are bound by them and cannot raise or adjudicate fresh issues without due amendment
Relying on Bullen and Leake and Jacob's Precedents of Pleadings, Sir Jack Jacob's article quoted in Malawi Railways v Nyasulu, and the Nigerian decision in Adetoun Oladeji, the court held that in the adversarial system the parties set the agenda for trial by their pleadings; evidence at variance with the pleadings goes to no issue and must be disregarded, and a decision on a claim or defence not raised amounts to denying a party a hearing.
Whether the pleaded Kshs. 2,448,000/= cheque supported a set-off
No - the cheque related to an independent transaction and was not pleaded as a set-off or counter-claim in the manner required by Order 7
The defence did not specifically state that the claim was made by way of set-off or counter-claim as Order 7 rule 7 requires. On the evidence the payment was withheld by the respondent to offset the appellant's indebtedness, and the trial judge found it related to a transaction independent of the claim in the plaint. The appellant's submission that the absence of a reply to defence converted it into an admitted claim was rejected.
The cross-appeal on the quantum awarded
It succeeds - judgment is entered for the full sum claimed less the admitted credit, being Kshs. 11,104,180/=
Since the unpleaded credits of the cheques not captured in the respondent's records could not stand, the only lawful credit was the Kshs. 1,000,000/= admitted by the respondent as paid after institution of the suit, as per the amendment of the plaint recorded by the trial judge. The decretal sum therefore rises from Kshs. 8,776,580/= to Kshs. 11,104,180/=.
Legal principles established
#- Parties are bound by their pleadings; a party may not rely at trial on a case at variance with, or unpleaded in, its pleadings without due amendment, and evidence that does not support the averments in the pleadings must be disregarded
- On a first appeal the Court of Appeal will interfere with a finding of fact by the High Court only where the finding is based on no evidence, on a misapprehension of the evidence, or where the judge demonstrably acted on wrong principles
- A set-off or counter-claim must be specifically pleaded in the statement of defence; a defence that does not state that a ground is relied on by way of counter-claim does not support such a claim
Court orders
#- 1.The appellant's appeal is dismissed with costs
- 2.Judgment is entered for the respondent in the sum of Kshs. 11,104,180/= after giving credit for Kshs. 1,000,000/= paid after institution of the suit
- 3.The respondent is awarded costs of the cross-appeal
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 Kisii
- Kisii HCCC No. 146 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)
Relief refused
#The appellant's appeal against the judgment and decree of the High Court
The appellant was bound by its pleadings and could not rely on evidence of unpleaded replacement cheques
The appellant's claim to a set-off of Kshs. 2,448,000/=
The cheque was in respect of an independent transaction and the defence did not specifically plead it as a set-off or counter-claim as required
Costs
The appeal dismissed with costs to the respondent; the respondent to have costs of the cross-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.
The upshot of our findings is that the appeal has no merit and is dismissed with costs. The cross -appeal succeeds and we enter judgement for the respondent in the sum of Kshs. 11,104,180/= after giving credit for Kshs. 1,000,000/= paid by the appellant to the respondent after institution of the suit and as per the amendment of the plaint recorded by the trial judge. The respondent will also have costs of the cross appeal.
In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called "Any Other Business" in the sense that points other than those specific may be raised without notice.
We are of the respectful opinion that the learned judge, after holding correctly that parties were bound by their pleadings erred in holding that the appellant was entitled to credit on sums which were not pleaded in the defence at all.
This is a first appeal and we are duty bound to re-evaluate the evidence to reach our own conclusions remembering always that the trial court had the advantage of hearing and observing the demeanour of witnesses.
The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them.
Issues in the judgment
#The respondent's name is misspelled in the caption as 'KENYA SEED COMPANY UMITED' in the judgment as reproduced
The appeal is described as from a judgment dated 31st March, 2011 but the decree is delivered on 25th February, 2015 while the hearing took place on 24th November, 2014; the caption also describes the trial judge inconsistently as 'Hon. Justice Asike MakhandiJ'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#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
- Mutiso v Nzioka (Suing as the Personal Representative of Esther Ntheya Nzioka (Deceased)) (Civil Appeal 356 of 2019) [2025] KECA 1727 (KLR)[2025] KECA 1727 (KLR)24 Oct 2025
- Magongo v Sherman (Employment and Labour Relations Appeal E103 of 2024) [2025] KEELRC 2477 (KLR)[2025] KEELRC 2477 (KLR)18 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Dakianga Distributors (K) Ltd v Kenya Seed Company Umited) [2015] KECA 14 (KLR)", Case Analysis (2015). Civil Appeal No. 168 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/14/eng@2015-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.