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ELCDismissedNot stated in judgment

Kasyoki (Suing as the Administrator and Legal Representative of the Estate of Kasyoki Maliti (Deceased)) v Kimuli (Suing as the Administrator and Legal Representative of the Estate of Kasyoki Maliti (Deceased)); Tuli (Applicant) (Suing as the Legal Representative of the Estate of Mary Kimuli (Deceased)) (Environment and Land Case 20 of 2018) [2025] KEELC 7006 (KLR)

Environment and Land Court
14 October 2025
1,493 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

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A Kenyan court confirmed that applications dismissed on technicalities can be brought again—res judicata only blocks cases decided on their merits.

What this practically means

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Executive summary

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This ruling determines a preliminary objection raised by the Plaintiff against the Defendant's notice of motion dated 10th March, 2025. The underlying suit, filed on 14th March, 2018, sought a declaration that land parcel No. Nzaui/Masumba/492 is the sole property of the Estate of Kasyoki Maliti and a permanent injunction against the Defendant. Judgment was entered exparte for the Plaintiff on 15th December, 2021, although the Defendant had died on 3rd February, 2020 and was never substituted. The Defendant's counsel, the firm of Stanley Nthiwa & Co. Advocates, filed successive applications: a notice of motion dated 24th August, 2022 seeking stay of execution, setting aside of the judgment and a declaration that the suit had abated, which was struck out on 26th April, 2023 because the firm was not properly on record under Order 9 Rule 9 of the Civil Procedure Rules; and an amended application dated 10th July, 2023, dismissed on 6th November, 2024 as an improper attempt to amend a struck-out application. The Plaintiff's preliminary objection contended that the fresh application dated 10th March, 2025 was res judicata, frivolous and an abuse of process. The court framed the sole issue as whether the application was res judicata and an abuse of process. Applying Section 7 of the Civil Procedure Act, and considering the Defendant's reliance on Black's Law Dictionary and the IEBC v Maina Kiai formulation of the conjunctive elements of res judicata, the court held that the issues in the 10th March, 2025 application were never determined on the merits, the earlier rulings having turned purely on procedural defects. The preliminary objection was dismissed with costs to the Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application dated 10th March, 2025 is res judicata
  2. 2.Whether the application is an abuse of the process of the court

Key legal issues

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01

Whether the Defendant's application dated 10th March, 2025 is barred by res judicata

Holding

The preliminary objection fails; res judicata does not apply because the earlier applications were struck out or dismissed without determination of the issues on the merits.

Reasoning

The application dated 24th August, 2022 was struck out because the firm of Stanley Nthiwa & Co. Advocates was not properly on record, having failed to comply with Order 9 Rule 9 of the Civil Procedure Rules. The amended application dated 10th July, 2023 was dismissed as improperly before the court since it purported to amend an already struck-out application. In both rulings the court declined to delve into the substantive issues. Since the issues now raised were never heard and finally determined on the merits, the conjunctive elements of res judicata under Section 7 of the Civil Procedure Act are not satisfied.

p. 4

Legal principles established

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  • An application struck out or dismissed on procedural grounds without determination on the merits does not found a plea of res judicata

Court orders

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  1. 1.The preliminary objection is dismissed with costs to the Defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction over land dispute; preliminary objection under res judicata (Section 7 of the Civil Procedure Act)

Relief refused

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Plaintiff's preliminary objection that the Defendant's application dated 10th March, 2025 is res judicata and an abuse of court process

The issues raised in the application of 10th March, 2025 were never determined on merits in the earlier rulings

p. 4

Costs

The preliminary objection is dismissed with costs to the Defendant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This therefore clearly shows that the issues raised in the application dated 10th March, 2025 have never been determined on merits and therefore the application cannot be res judicata.
p. 4Res judicata requires prior final determination on the merits
I therefore find no merit in the preliminary objection which is hereby dismissed with costs to the Defendant.
p. 4Final orders - dismissal of preliminary objection

Issues in the judgment

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minor

Defendant referred to with both male and female pronouns in the judgment

minor

Ruling dated and delivered on 14th October, 2025 although the judge states it was written on 6th October, 2025

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kasyoki (Suing as the Administrator and Legal Representative of the Estate of Kasyoki Maliti (Deceased)) v Kimuli (Suing as the Administrator and Legal Representative of the Estate of Kasyoki Maliti (Deceased)); Tuli (Applicant) (Suing as the Legal Representative of the Estate of Mary Kimuli (Deceased)) (Environment and Land Case 20 of 2018) [2025] KEELC 7006 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7006/eng@2025-10-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.