Bariwot & 4 others v Jelimo (Environment and Land Case E031 of 2025) [2025] KEELC 7575 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the interests of the 1st – 3rd plaintiffs were represented by the 4th and 5th plaintiffs in the former suit
- 3.Whether res judicata can be determined as a preliminary issue where mixed questions of fact and law arise
Key legal issues
#Whether the current suit is barred by res judicata
The question cannot be resolved on a preliminary application because it turns on mixed fact and law requiring evidence.
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.
Legal principles established
#- 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
#- 1.The application dated 27/8/2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
The application dated 27/8/2025 is dismissed with costs (costs to the plaintiffs/respondents).
Quotable passages
#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.
The upshot is that the application dated 27/8/2025 is dismissed with costs.
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).
Issues in the judgment
#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
The name of the late Bariwot appears inconsistently as 'Bariwot Tangui' and 'Bariwot Tangut'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.