Thomas Mutere Kusienya v Jamin Juma Wekesa & 13 others [2018] KEELC 1670 (KLR)
The bottom line
#The court struck out a land ownership suit because the same family land dispute had already been decided in earlier Kenyan cases, and awarded costs to the defendants.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by res judicata and sub judice
The suit is both res judicata and sub judice because the same subject matter and parties had litigated in Kakamega Misc. Award No. 106 of 2000, Kakamega HCCA No. 145 of 2003 and Lugari Land Dispute Tribunal No. 9 of 2000, and the plaintiff filed this suit knowing of those cases; the court therefore lacks jurisdiction and struck the suit out with costs.
The court considered the preliminary issue before the merits. On perusal of the cited files, it found the suit parcels were subdivisions of KAKAMEGA/LUGARI/2079's parent parcel KAKAMEGA/LUGARI/101, which was the subject of the earlier battle between the parties' fathers. The Tribunal award was adopted in Misc. Award No. 106 of 2000, granting the 1st defendant's father 63 of 80 acres. The plaintiff, as administrator of Marko Kusienya Sinino's estate, was respondent in HCCA No. 145 of 2003, where the appeal was allowed on 18th April 2013, and filed this suit on 26th February 2013 aware of the pending proceedings. Sections 6 and 7 of the Civil Procedure Act therefore barred the suit.
Whether the plaintiff's failure by the defendants to adduce evidence excused proof of the plaintiff's case
No - the plaintiff still had to prove his case on a balance of probabilities notwithstanding that the defendants did not adduce evidence.
The defendants submitted that they did not give evidence because counsel misdirected them that the hearing was for directions. The court acknowledged that the absence of defence evidence did not relieve the plaintiff of the burden of proving his claim; the plaintiff remained bound to establish his case on a balance of probabilities. However, the res judicata and sub judice bar was determined first and was dispositive, so the merits never fell for determination.
Legal principles established
#- A suit directly and substantially in issue in previously instituted or pending proceedings between the same parties litigating under the same title is barred under sections 6 and 7 of the Civil Procedure Act, and a court that lacks jurisdiction cannot go into the merits.
Court orders
#- 1.The plaintiff's suit is struck out
- 2.Costs of the suit awarded to the defendants
- Jurisdiction invoked
- Environment and Land Court jurisdiction under statute; suit before the court pursuant to its land dispute mandate
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samuel Sopon Parashuru v Taporu Masene & 9 others [2018] KEELC 624 (KLR)[2018] KEELC 624 (KLR)12 Nov 2018
Cite this brief
#Cite this brief
Caselaw, "Thomas Mutere Kusienya v Jamin Juma Wekesa & 13 others [2018] KEELC 1670 (KLR)", Case Analysis (2018). ELC Case No. 65 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1670/eng@2018-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.