Wekesa v Kerae & 2 others
The bottom line
#The Kitale Environment and Land Court declared a registered owner the sole proprietor of three plots and ordered the occupants evicted within thirty days.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was res judicata having regard to Kitale ELC No 140 of 2013
The issue failed because it was raised only in submissions, was neither pleaded nor proved, and the defendants were not parties to the earlier suit.
The court held that res judicata is a serious issue going to the root of the matter that must be raised by pleadings or notice of motion with annexed pleadings, so the adversary can respond. Raising it at submissions stage locked the plaintiff out of addressing it and required evidence. Submissions are not pleadings and cannot take the place of evidence. In any event, the defendants were not parties to the earlier suit.
Effect of the defendants' failure to call evidence
The defendants' statement of defence remained mere unsubstantiated allegations, but the plaintiff still had to prove his case on a balance of probabilities.
Relying on Motex Knitwear and CMC Aviation, the court held that pleadings are not evidence; unchallenged, the plaintiff's evidence stands, and the defence averments are unsubstantiated. Nonetheless, uncontroverted pleadings do not automatically prove a case - the plaintiff's averments had to meet the standard of proof under section 107(1) of the Evidence Act.
Whether the plaintiff proved proprietorship and the defendants' trespass
The plaintiff proved he was the registered proprietor of the subdivisions of Kitale Municipality Block 10/50 and the defendants, lacking any lawful basis of possession, remained trespassers.
The plaintiff produced certificates of title for the six subdivisions, a Registry Index Map excerpt, and the judgment in Kitale ELC No 140 of 2013 declaring him lawful proprietor and the rival titles fake. That judgment in rem remained unchallenged. The defendants, who claimed under parties whose titles were found fake, adduced no evidence of purchase or of any overriding trust under sections 25(1) and 28 of the Land Registration Act.
Legal principles established
#- Submissions are not pleadings and cannot take the place of evidence; a serious issue such as res judicata cannot be raised for the first time in submissions.
- Pleadings that are not supported by evidence remain mere allegations and cannot found a decision in favour of a party.
- Even where a defendant calls no evidence, the plaintiff still bears the burden of proving his case on a balance of probabilities.
Court orders
#- 1.A declaration that land parcels No Kitale Municipality Block 10/197, 10/195 and 10/196 solely belong to the plaintiff and the defendants and those claiming under them have no proprietary interest therein
- 2.An order directing the defendants, their agents, servants or anybody claiming under them to move out of the said parcels and remove their standing structures within thirty days of the judgment, failing which they be forcefully evicted and the structures demolished at their cost
- 3.A permanent injunction restraining the defendants from entering or interfering with the plaintiff's user of the said parcels
- 4.The plaintiff is awarded costs of the suit with interest thereon at court rates
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to title and possession of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa v Kerae & 2 others", Case Analysis (2022). Environment & Land Case 46 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14809/eng@2022-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.