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Court of AppealPartially AllowedCivil Appeal No. 168 of 2011

Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] KECA 870 (KLR)

Court of Appeal of Kenya
24 February 2015
David Kenani MaragaD. MaragaFAF. AzangalalaSKS. ole Kantai
3,564 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that evidence contradicting or missing from your court pleadings will be ignored, costing Dakianga Distributors nearly Kshs. 11 million.

What this practically means

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Executive summary

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This was a first appeal against the judgment of Asike Makhandia, J of the High Court at Kisii, which awarded Kenya Seed Company Limited Kshs. 8,776,580/= against its distributor, Dakianga Distributors (K) Ltd, for consignments of seeds paid for by dishonoured cheques. The respondent cross-appealed, seeking the full claimed sum of Kshs. 11,104,180/= after credit for Kshs. 1,000,000/= paid after institution of the suit. The central dispute concerned credit the trial judge gave the appellant for cheques tendered in evidence but never pleaded in the defence, and a claimed set-off of Kshs. 2,448,000/=. The appellant's own director admitted that the three cheques pleaded as replacements for the dishonoured cheques were in fact payments for other transactions, and that additional cheques produced at trial were unpleaded. The Court of Appeal, applying the principle that parties are bound by their pleadings and that evidence at variance with pleadings goes to no issue, held that the trial judge erred after having correctly stated that principle, in allowing the appellant credit on sums not pleaded and not covered by any amended defence. It found the appeal to be without merit but allowed the cross-appeal. The Court varied the High Court decree by entering judgment for the respondent for Kshs. 11,104,180/=, dismissed the appeal with costs, and awarded the respondent the costs of the cross-appeal. The judgment binds lower courts to the rule that a party cannot rely on evidence to advance a case that departs from, or is not supported by, its pleadings absent due amendment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in awarding the respondent a sum not supported by reconciliation of accounts
  2. 2.Whether the learned judge erred in giving the appellant credit for cheques tendered in evidence but not pleaded in the defence
  3. 3.Whether the appellant was entitled to a set-off of Kshs. 2,448,000/= pleaded in the defence
  4. 4.Whether the respondent had proved its case to the required standard
  5. 5.Whether the judgment was against the weight of evidence
  6. 6.On cross-appeal, whether judgment should be varied to award the respondent the full claimed sum of Kshs. 11,104,180/= after credit

Key legal issues

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01

Whether a trial court may give credit for sums supported by evidence but not pleaded in the defence

Holding

It may not. Having correctly held that parties are bound by their pleadings, the trial judge erred in allowing the appellant credit on sums not pleaded in the defence at all.

Reasoning

The defence pleaded three specific cheques as replacement cheques; the appellant's witness admitted these were cheques for other transactions, and other cheques tendered in evidence totalling Kshs. 10,892,245/= were neither pleaded nor listed in the appellant's list of documents. Evidence at variance with pleadings goes to no issue and must be disregarded, and the defence was never amended. The adversarial system leaves each party to formulate its own case, and the court cannot adjudicate on matters not raised by the pleadings.

p. 6
02

Whether the appellant was entitled to a set-off of Kshs. 2,448,000/= under Order 7 of the Civil Procedure Rules

Holding

The trial judge correctly found that the cheque for Kshs. 2,448,000/= related to an independent transaction and that no set-off was available; the sum was withheld to offset the appellant's indebtedness.

Reasoning

The respondent's witness admitted receipt of the cheque but explained that the sum was withheld to offset the appellant's indebtedness. The trial judge analysed the evidence and found the cheque related to a transaction independent of the claim in the plaint, so no set-off or counter-claim under Order 7 arose. The Court of Appeal did not disturb this finding.

p. 4
03

The standard of appellate interference with findings of fact on a first appeal

Holding

This Court on a first appeal re-evaluates the evidence but will not lightly interfere with the trial court's findings, which were not shown to be based on no evidence or wrong principles.

Reasoning

Citing Mwanasokoni v Kenya Bus Service Limited, the Court affirmed the principle that a first appellate court is duty bound to re-evaluate the evidence while remembering the trial court's advantage of hearing and observing witness demeanour. The appellant did not demonstrate that the trial judge's findings on credibility and the nature of the cheques rested on no evidence or a misapprehension of the evidence.

p. 3

Legal principles established

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  • Parties are bound by their pleadings and any evidence led which is at variance with the averments in the pleadings goes to no issue and must be disregarded
  • On a first appeal, this Court re-evaluates the evidence and reaches its own conclusions, but 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 court is bound by the pleadings of the parties and cannot pronounce a claim or defence not made by them; parties set the agenda for trial by their pleadings

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The cross-appeal succeeds and judgment is entered for the respondent in the sum of Kshs. 11,104,180/= after giving credit for Kshs. 1,000,000/= paid by the appellant after institution of the suit
  3. 3.The respondent is awarded the costs of the cross-appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority
FA
majority
SK
majority
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 constitutional or statutory provision)

Relief refused

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Appellant's claim to credit for cheques (including the Kshs. 2,448,000/= set-off and unpleaded replacement cheques) not pleaded in the defence

Parties are bound by their pleadings; the appellant's defence pleaded three cheques which its own witness admitted were not replacement cheques, and unpleaded cheques could not be relied on without amendment

p. 6

Appellant's submission that the respondent had not proved its case to the required standard

Rejected; the trial court's findings on the evidence were not shown to be based on no evidence or wrong principles

Costs

The appeal is dismissed with costs to the respondent; the respondent will also have costs of the cross-appeal

Quotable passages

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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.
p. 6Final orders - dismissal of appeal, success of cross-appeal and costs
it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.
p. 6Parties bound by pleadings
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.
p. 5Pleadings set the agenda for trial
this Court will interfere with a finding of fact by the High Court where the finding is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the finding.
p. 3Appellate interference with findings of fact on first appeal

Issues in the judgment

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minor

Internal inconsistency in the quantum of unpleaded cheques relied on by the appellant: submissions reference Kshs. 2,329,600/=, the respondent's submissions reference Kshs. 2,327,600/=, and the trial judge's analysis is recited as referring to two cheques totalling Kshs. 2,327,600/= while the witness is recorded as producing cheques with a grand total of Kshs. 10,892,245/=

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] KECA 870 (KLR)", Case Analysis (2015). Civil Appeal No. 168 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/870/eng@2015-03-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.