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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was sufficient material before the ELC to warrant the determination by the learned Judge that the suit before the ELC was sub judice and/or res judicata
- 2.Whether the appellant was entitled to a favourable verdict owing to the fact that there was no defence on record; and the respondents did not adduce any evidence in opposition to the appellant's case or in favour of their case
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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.
Relief refused
#Setting aside of the ELC judgment striking out the suit as res judicata and sub judice, and granting of the reliefs sought in the plaint (declaration of ownership, eviction and permanent injunction)
The suit was both res judicata and sub judice; the Tribunal award remained unadopted with the adoption application still pending, and the Tribunal's decision had not been appealed, reviewed or varied
Costs
Appeal dismissed with costs to the respondents (the ELC had struck out the case with costs to the defendants).
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 is that the appeal wholly lacks merit. It is hereby dismissed with costs to the respondents.
there are instances where a trial court is entitled to raise the defences sua sponte as long as the court has legitimately and reliably come across information giving rise to the conclusion that a matter before it is res judicata or sub judice.
Lack of a regular defence on record does not automatically lead to a favourable judgment and neither does it disable or bar the court from considering any pertinent matters of law arising from the suit.
as a matter of law, an interlocutory judgment cannot be issued in land matters by dint of Order 10 rules 4, 6, 9 and 10 of the Civil Procedure Rules.
Issues in the judgment
#The judgment inconsistently describes the resolution of the Tribunal award: paragraph 5 records it as giving the appellant's father only 7 acres, while paragraph 18 and the impugned judgment describe it as giving the 1st respondent's father 63 out of 80 acres; these are not irreconcilable (7 acres to Kusienya, remainder to Wekesa) but the drafting is confusing.
The judgment contains conflicting dates regarding the adoption of the Tribunal award: the respondents' 2016 application refers to adoption on 3rd November, 2014, while paragraph 46 states the adoption orders were set aside on 16th November, 2011 and the adoption application dismissed on 18th December, 2002, and the court found no ruling of the alleged 2014 adoption on record.
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.