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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 10th March, 2025 is res judicata
- 2.Whether the application is an abuse of the process of the court
Key legal issues
#Whether the Defendant's application dated 10th March, 2025 is barred by res judicata
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.
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.
Legal principles established
#- An application struck out or dismissed on procedural grounds without determination on the merits does not found a plea of res judicata
Court orders
#- 1.The preliminary objection is dismissed with costs to the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction over land dispute; preliminary objection under res judicata (Section 7 of the Civil Procedure Act)
Relief refused
#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
Costs
The preliminary objection is dismissed with costs to the Defendant.
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.
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.
I therefore find no merit in the preliminary objection which is hereby dismissed with costs to the Defendant.
Issues in the judgment
#Defendant referred to with both male and female pronouns in the judgment
Ruling dated and delivered on 14th October, 2025 although the judge states it was written on 6th October, 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.