Karisa v Kalume & another (Environment and Land Case 12 of 2018) [2026] KEELC 2831 (KLR)

The court held that res judicata's essence is conclusivity. The magistrate's judgment in the former suit expressly directed that the counterclaim issue await the High Court's determination and declined the counterclaim for insufficiency of material, without finally resolving entitlements. Both parties admitted dissatisfaction with that judgment, and the defendants' own counterclaim here demonstrated the dispute was never conclusively resolved. Applying res judicata would leave parties in the same mess and spawn more litigation.

Tribunal evidence clarified that Settlement Fund Trustees land could not be sold outright by an occupant, so only trees could be sold, but sale of trees signified the sale of the right of occupation and to be allocated the land. The plaintiff's father paid all SFT dues, obtained discharge, and was registered. The defendants' own execution of an agreement permitting them to stay on the land conceded the plaintiff's father's right. The Assistant Chief's 1989 letter corroborated the transaction.

The land was registered to the plaintiff's father after he paid SFT dues; upon his death the plaintiff took out a grant of representation (Gazette Notice No 5164, Kilifi Succession Cause No 16 of 2006) and was registered by transmission. The fraud allegations against the succession proceedings were unsupported, and the defendants never opposed the succession or complained to the Lands Office. The claim to title was not impeached.

Trust particulars (customary, constructive or otherwise) were never pleaded in the counterclaim, rendering it defective; and even if not defective, trust is a question of fact to be proved by evidence. The sale to the plaintiff's father was absolute, leaving no interest in the defendants' family. Occupation of land and burial of kin do not by themselves establish a trust. Fraud allegations were defeated on a balance of probabilities.