Kusienya v Wekesa & 12 others (Civil Appeal 157 of 2018) [2024] KECA 41 (KLR)
The bottom line
#The Court of Appeal confirmed Kenyan courts can strike out land suits as res judicata on their own motion, and a plaintiff must still prove their case even without a defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the pleas of res judicata and sub judice must be raised preliminarily or in a defence, or may be entertained by the court on its own motion
The pleas are statutory defences; it is good practice to raise them early, but the court may raise them sua sponte where it legitimately and reliably encounters information supporting them, as happened here through the 1st respondent's unrebutted affidavit and the court's perusal of the prior case files.
The court distinguished waiver: in some procedural postures an inference of waiver is proper, but it is not always fatal that the pleas be raised preliminarily. The trial judge became aware of the prior disputes through an unrebutted affidavit filed in the suit, relied on by both Dulu, J. and Matheka, J., both of whom perused the earlier files. It would have been dereliction of judicial duty for the judge to ignore the previous disputes. The plea was therefore properly entertained absent a regular defence.
Whether the suit was in fact res judicata and sub judice
Yes: the application for adoption of the Lugari Land Disputes Tribunal award remained unheard and undetermined, making the dispute sub judice, and the unappealed, unvaried Tribunal decision made it res judicata.
The High Court in Kakamega HCCA No. 145 of 2003 had ordered the hearing of the application for adoption of the Tribunal award, which remained pending. The appellant's claim concerned subdivisions of the same parcel (Kakamega/Lugari/101) that was the subject of the Tribunal award between the parties' fathers. The principal relief sought in the present suit - an injunction over the same property - overlapped with the earlier proceedings, and the Tribunal's decision had never been appealed, reviewed or varied.
Whether absence of a defence and of rebuttal evidence entitled the appellant to judgment
No: an interlocutory judgment cannot issue in land matters; the hearing was one of formal proof, and the plaintiff still had to discharge the burden of proof under section 107 of the Evidence Act.
Although the respondents' defence was filed late without leave and after the close of the plaintiff's case, so there was no regular defence, the law precludes interlocutory judgment in land matters under Order 10 rules 4, 6, 9 and 10 of the Civil Procedure Rules. The trial judge was obliged to consider the quality of the evidence and whether the facts were established, and lack of a defence does not bar the court from considering pertinent matters of law.
Legal principles established
#- While it is good practice to raise res judicata and sub judice at the earliest opportunity, these are statutory defences and a trial court may raise them sua sponte where it has legitimately and reliably come across information supporting them.
- An interlocutory judgment cannot be entered in land matters by dint of Order 10 rules 4, 6, 9 and 10 of the Civil Procedure Rules; the hearing is one of formal proof.
- Lack of a regular defence and absence of rebuttal evidence do not entitle a plaintiff to an automatic favourable verdict; the plaintiff still bears the burden of proof under section 107 of the Evidence Act.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- Environment and Land Court at Kakamega
- Kakamega Environment and Land Court Case No. 65 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory first appeal against the judgment of the Environment and Land Court); the judgment does not cite a specific provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kusienya v Wekesa & 12 others (Civil Appeal 157 of 2018) [2024] KECA 41 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/41/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.