JUDGMENT OF THE COURT
1. The respondent filed two identical but consecutive suits before the Resident Magistrates’ Court at Malindi against the appellant for alleged defamation. The first of these suits was Malindi CMCC No. 223 of 2012 while the latter was Malindi CMCC No. 19 of 2013. Before the first suit could be heard, the appellant successfully moved the court and had it struck out for failing to disclose a cause of action. Undeterred, the respondent filed the second suit, which was premised on similar facts as the first.
2. In opposition, the appellant raised a preliminary objection to the latter suit, contending that the same was res judicata the first suit and should be dismissed. The court upheld that objection and dismissed the suit with costs to the appellant. Convinced that he had a merited case against the appellant, the respondent once again moved the court in the latter suit; this time vide an application dated 3rd October, 2013 seeking inter alia the following orders: