Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutELC Case No. 65 of 2013· [2018] KEELC 1670 (KLR)

Thomas Mutere Kusienya v Jamin Juma Wekesa & 13 others [2018] KEELC 1670 (KLR)

Environment and Land Court
26 September 2018
1,413 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The plaintiff, registered proprietor of L.R. No. KAKAMEGA/LUGARI/2079 and administrator of the estate of Marko Kusienya Sinino (registered owner of parcels 2076 and 2361), sued twelve defendants seeking a declaration of ownership, eviction, demolition of structures, a permanent injunction against interference with the suit parcels, costs and interest. He alleged that in February 2013 the defendants trespassed onto the parcels and began ploughing without right, consent or authority, and that demand and administrative intervention failed. The defendants, who did not adduce evidence owing to a claimed misdirection by counsel that the date was for directions, opposed the suit on preliminary grounds. They argued the suit was res judicata and sub judice, citing Kakamega Misc. Award No. 106 of 2000, Kakamega HCCA No. 145 of 2003 and Lugari Land Dispute Tribunal No. 9 of 2000, proceedings between the parties' predecessors over the parent parcel KAKAMEGA/LUGARI/101, in which a Tribunal award giving the 1st defendant's father 63 of 80 acres had been adopted, and asserting that the plaintiff's registration was tainted by fraud and irregularity. The court resolved the preliminary issue first, reproducing sections 6 and 7 of the Civil Procedure Act. It found the same subject matter and parties were engaged in the prior proceedings and that the plaintiff filed this suit aware of them. It held the case res judicata and sub judice, that it lacked jurisdiction to enter the merits, and struck out the suit with costs to the defendants.

Key legal issues

#
01

Whether the suit is barred by res judicata and sub judice

Holding

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.

Reasoning

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.

p. 3
02

Whether the plaintiff's failure by the defendants to adduce evidence excused proof of the plaintiff's case

Holding

No - the plaintiff still had to prove his case on a balance of probabilities notwithstanding that the defendants did not adduce evidence.

Reasoning

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.

p. 2

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. 1.The plaintiff's suit is struck out
  2. 2.Costs of the suit awarded to the defendants

Authorities

#

Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7

Cases cited (3)

  • Kakamega Misc. Award No. 106 of 2000
  • Kakamega HCCA No. 145 of 2003
  • Lugari Land Dispute Tribunal No. 9 of 2000
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.

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.