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ELCDismissedNot stated on the face of the judgment (application dated 27/8/2025 in the pending suit)

Bariwot & 4 others v Jelimo (Environment and Land Case E031 of 2025) [2025] KEELC 7575 (KLR)

Environment and Land Court
5 November 2025
2,045 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale refused to strike out a land suit as res judicata, ruling such claims need full evidence, not a preliminary shortcut.

What this practically means

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Executive summary

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By a notice of application dated 27/8/2025, the defendant sought to strike out the plaintiffs' suit as res judicata, contending that the same subject matter — Kitale Municipality Block 1/Lessos/994 and the trust alleged over it — had been determined to finality in Kitale ELC No. 78 of 2008, whose judgment was affirmed in Eldoret Court of Appeal Civil Appeal No. 61 of 2019. The defendant argued that the 1st – 3rd plaintiffs, being children of Bariwot Tangut, were represented in the former suit by the 4th and 5th plaintiffs, and that the present suit merely repackaged an adjudicated dispute in violation of Section 7 of the Civil Procedure Act and the rule against splitting causes of action. The plaintiffs opposed, asserting that the suit sought to terminate the trust declared in the former suit and effect distribution of the land among beneficiaries, that they were not parties to the earlier suit, and that their overriding interests had never been determined or registered. The court framed the determinative question as whether the 1st – 3rd plaintiffs' claim was covered in the former suit and whether their interests were ably represented therein. Relying on Henry Wanyama Khaemba v Standard Chartered Bank Ltd and Sathyanath v Sarojamani, the court held that res judicata involving a mixed question of fact and law cannot be resolved on a preliminary application but requires viva voce evidence and examination of the former pleadings and decrees. The application dated 27/8/2025 was accordingly dismissed with costs on 5th November 2025, and the main suit proceeds to hearing.

Questions the Court framed

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

  1. 1.Whether the suit is res judicata in view of Kitale ELC No. 78 of 2008 and Eldoret Civil Appeal No. 61 of 2019
  2. 2.Whether the interests of the 1st – 3rd plaintiffs were represented by the 4th and 5th plaintiffs in the former suit
  3. 3.Whether res judicata can be determined as a preliminary issue where mixed questions of fact and law arise

Key legal issues

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01

Whether the current suit is barred by res judicata

Holding

The question cannot be resolved on a preliminary application because it turns on mixed fact and law requiring evidence.

Reasoning

The court found that whether the 1st – 3rd plaintiffs' claim was covered in the former suit, or their interests ably represented by the 4th and 5th plaintiffs, could not be resolved on affidavit and pleadings alone. It adopted the principle in Henry Wanyama Khaemba v Standard Chartered Bank Ltd and Sathyanath v Sarojamani that res judicata involving mixed questions of fact and law requires probing of evidence at a full hearing, including examination of the pleadings and decrees in the former suits.

p. 4

Legal principles established

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  • Res judicata cannot be determined as a preliminary issue where a mixed question of fact and law arises; such issues require probing of evidence.

Court orders

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  1. 1.The application dated 27/8/2025 is dismissed with costs

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 of the Environment and Land Court; application under Section 7 of the Civil Procedure Act (res judicata)

Relief refused

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Striking out of the suit for offending Section 7 of the Civil Procedure Act (res judicata)

Res judicata cannot be determined as a preliminary issue where there exists a mixed question of fact and law; whether the 1st – 3rd plaintiffs' claims were covered or represented in the former suit requires viva voce evidence

p. 4

Costs

The application dated 27/8/2025 is dismissed with costs (costs to the plaintiffs/respondents).

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.

Looking at the totality of the issues raised as to whether the 1st - 3rd plaintifis’ claim was covered in the former suit or whether their interests were ably represented by the 4th and 5th plaintifis in the former suit or decree, these are issues requiring vica voce evidence at the hearing.
p. 4Res judicata requiring viva voce evidence
The upshot is that the application dated 27/8/2025 is dismissed with costs.
p. 4Final orders - dismissal of the application
Striking out a suit is a drastic step which should only be exercised in exceptional cases, as held in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR).
p. 3Striking out as a drastic remedy

Issues in the judgment

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minor

The judgment inconsistently refers to the former suit's number, at one point as Kitale ELC No. 78 of 2018 and elsewhere as No. 78 of 2008

minor

The name of the late Bariwot appears inconsistently as 'Bariwot Tangui' and 'Bariwot Tangut'

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, "Bariwot & 4 others v Jelimo (Environment and Land Case E031 of 2025) [2025] KEELC 7575 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (application dated 27/8/2025 in the pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7575/eng@2025-11-05

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