Tamoo v Tamoo & 3 others

Respondent had abated by 12th February 2017 and that the Applicant (Mary Ngoiri Tamooh) did not seek extension of time from the court rst before seeking the Court’s Order for substitution as mandated by Order 24 Rule 3 of the Civil Procedure Rules. ii. That the Learned Principal Magistrate erred in law in allowing the Applicant, Mary Ngoiri Tamooh, to urge the 1st Respondent’s (now deceased) Application based on Land Parcel Number Cis-mara/Oiposimoru/1328 based on: A. That there was clear evidence in the Appellant’s Replying Adavit sworn on 23rd May 2025, which was not controverted that the Land Parcel Number Cis-mara/Olposimoru/1328, was not among the listed properties of the late David/Davis Leposo Tamooh (deceased) as per the Adavit of Mary Ngoiri Tamooh, Caroline Naisaria Tamooh and Abigail Nasieku Ongeti in support of the Petition for a Grant of Letters of Administration Intestate in the Estate of the Late Davis Leposo Tamooh (deceased) in Narok C.M. Succession Cause No. 11 of 2016 on 3rd May 2026. B. That there was clear and uncontroverted Adavit evidence that Land Parcel Number Cis-mara/Olposimoru/1328, was registered in the names of Walter Juma Ongeti on 12th May 2009, and a Title Deed issued to the said Walter Juma Ongeti and, therefore, Mary Ngoiri Tamooh, did not have any interest on this land capable of being litigated upon by Mary Ngoiri Tamooh ,and yet the registered owner had not lodged any complaint and he was disinterested in the proceedings. C. Did Mary Ngoiri Tamooh have the “Locus Standi” to purport to and urge the case for WALTER JUMA ONGETI disguised as arguing the case for Davis Leposo Tamooh. iii. That the Learned Principal Magistrate erred in law on 13th October 2025 when he allowed the Applicant’s (Mary Ngoiri Tamooh) Application dated 15th August 2024 ,by setting aside its own orders for the benet of the Applicant who had exhibited zero interest on Land Parcel Number Cis-mara/ Olposimoru/1328. iv. That the Learned Principal Magistrate erred in law by setting aside the Court Order of 11th May 2024, at the behest and invitation of Mary Ngoiri Tamooh’s Application dated 15th August 2024, when the said orders had nothing to do with Land Parcel Number Cis-mara/Olposimoru/1328, and had nothing to do with the Estate of the Late Davis Leposo Tamooh. v. That the Learned Principal Magistrate erred in law by disregarding the doctrine of precedents binding on him despite the said decisions of the superior court being furnished to the said Principal Magistrate through the Appellant's submissions dated 2nd August 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5717/eng@2026-09-24 2

page 2 of 8

vi. That the Learned Principal Magistrate erred in law by disregarding the doctrine of precedents binding on him despite the said decisions of the superior court being furnished to the said Principal Magistrate through the Appellant's submissions dated 2nd August 2025. vii. That the Learned Principal Magistrate erred in law by disregarding the doctrine of precedents binding on him despite the said decisions of the superior court being furnished to the said Principal Magistrate through the Appellant's submissions dated 2nd August 2025. viii. That the Learned Principal Magistrate erred in law when he derelicted his role by not making any ndings on prayers 2 and 3 of the Application dated 15th August 2024 which meant that the said two prayers were allowed, not on the merits of the Application but in an earlier ruling based on a Notice of Preliminary Objection when no such ndings were made in the ruling of 7th April 2025. ix. That the Learned Principal Magistrate was quite dilatory in handling and making his ruling of 13th October 2025 without giving valid or cogent grounds. 4. The Appellant prayed that the Appeal be allowed; the Ruling of the trial court delivered on 13th October 2025 ,be set aside; the Notice of Motion Application dated 15th August 2024, be struck out with costs; and that the costs of this appeal be awarded to the Appellant. 5. Pursuant to the directions of this Court, the Appeal was canvassed by way of written submissions. The Appellant led her written submissions dated 19th June 2026, through the Law Firm of Karanja Mbugua & Co Advocates and submitted as follows: That she opposed the Notice of Motion application dated 15th August 2024, vide a Replying Adavit sworn on 23rd May 2025, and raised a Notice of Preliminary objection dated 25th November, 2024. The appellant submitted that according to the application dated 15th August 2024, the subject matter was Land Parcel No. Cis Mara/ Olposimori/1328 registered in the name of Walter Juma Ongeti on 12th May 2009. Accordingly, the registered proprietor has never complained or lodged any pleadings in this matter. It is the Appellant position that the 1st Respondent and Mary Ngoiri Tamoo had zero interest or rights to this land. 6. It was the Appellant’s further submissions that the learned trial magistrate erred in law and fact in allowing the Notice of Motion Application dated 15th August 2024. Further, that the said Notice of Motion Application sought, inter alia, the substitution of the deceased 1st Respondent with Mary Ngoiri Tamooh; a stay of execution of the orders issued on 11th July 2024; the setting aside of those orders; a nding of contempt against the Appellant; and costs of the application. 7. Further, the Appellant submitted that the application was incompetent as it sought the substitution of the 1st Respondent more than nine years after his demise without rst seeking enlargement of time or revival of the suit as required under Order 24 Rule 3 of the Civil Procedure Rules. The Appellant also argued that the suit against the 1st Respondent had abated by operation of law on 12th February 2017, and that the learned trial magistrate therefore erred in granting an order for substitution. 8. The Appellant further submitted that the said application was founded on Land Parcel No. Cis-mara/ Olposimoru/1328, yet the evidence on record demonstrated that the said land parcel was registered in the name of Walter Juma Ongeti on 12th May 2009. It was further argued that the registered proprietor had neither lodged any complaint nor participated in the proceedings, and that both the deceased https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5717/eng@2026-09-24 3

page 3 of 8

1st Respondent and Mary Ngoiri Tamooh, had no legal interest in this land parcel capable of being litigated in the suit. 9. Further, the Appellant submitted that although Mary Ngoiri Tamooh, had obtained a Grant of Letters of Administration Intestate in respect of the Estate of the late David Leposo Tamooh, the Certicate of Conrmation of Grant did not include Land Parcel No. Cis-mara/Olposimoru/1328, as forming part of the estate. Consequently, it was submitted that she lacked the requisite locus standi, to prosecute the application on behalf of the estate in respect of the said parcel. 10. The Appellant also faulted the learned trial magistrate for failing to determine the preliminary objection challenging Mary Ngoiri Tamooh’s locus standi, and the issue of abatement of the suit against the deceased 1st Respondent. He also submitted that despite those issues having been specically raised before the trial court, the learned magistrate neither addressed them nor gave reasons for rejecting them before allowing the application. 11. Lastly, the Appellant submitted that the learned trial magistrate disregarded the Adavit evidence placed before the court; failed to consider the authorities cited by the Appellant and consequently arrived at an erroneous decision. Therefore, the Appellant urged this Court to allow the Appeal; set aside the Ruling delivered on 13th October 2025; and substitute it with an order striking out the Notice of Motion Application dated 15th August 2024, with costs. 12. The 1st Respondent opposed the Appeal through written submissions dated 29th June 2026, led through the Law Firm Nyamwaya & Nyamwaya Advocates, urged the Court to dismiss the instant Appeal with costs. The 1st Respondent submitted that the impugned Ruling arose from the Notice of Motion Application dated 15th August 2024, which sought, inter alia, the setting aside of the orders issued on 11th July 2024, on the basis that the said orders had been extracted from a Judgment that had previously been quashed by the High Court in Kericho High Court Judicial Review Miscellaneous Civil Application No. 5 of 2011. 13. The 1st Respondent also submitted that the learned trial magistrate properly considered the pleadings; evidence and submissions before nding that the orders issued on 11th July 2024, had been founded upon a Judgment which had ceased to exist in law following its quashing by the High Court in Kericho. Consequently, the trial court correctly exercised its discretion in setting aside the said orders. 14. On the issues of locus standi, substitution and abatement, the 1st Respondent submitted that those matters had been raised and conclusively determined by the trial court in its earlier Ruling delivered on 7th April 2025. The 1st Respondent also argued that the present appeal challenges only the Ruling delivered on 13th October 2025, and not the Ruling of 7th April 2025. It was therefore contended that the ndings made in the earlier Ruling remained binding, and could not be re-opened through the present appeal. 15. The 1st Respondent further submitted that, in any event, Mary Ngoiri Tamooh, was one of the duly appointed administrators of the Estate of the late David Leposo Tamooh, pursuant to a Grant of Letters of Administration Intestate issued in Narok CM Succession Cause No. 11 of 2016, and was therefore properly before the trial court. He further argued that any question of abatement under Order 24 of the Civil Procedure Rules aected the Appellant’s claim and not the estate of the deceased 1st Respondent. 16. With regard to Land Parcel No. Cis-mara/Olposimoru/1328, the 1ST Respondent submitted that the Appellant had misconceived the nature of the application before the trial court. He further argued that the Notice of Motion Application dated 15th August 2024, neither sought a determination of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5717/eng@2026-09-24 4

page 4 of 8

ownership of the parcel of land nor cancellation of title or declaration of proprietary rights. Rather, the application sought substitution of the deceased litigant; stay of execution; setting aside of the orders issued on 11th July 2024, and protection of the estate from the implementation of orders founded upon a Judgment that had already been quashed. 17. The 1st Respondent further submitted that the learned trial magistrate correctly found that the orders issued on 11th July 2024, had been obtained without disclosure of the High Court’s decision quashing the Judgment upon which those orders were founded. The1st Respondent maintained that once the Judgment had been quashed by an order of certiorari, all consequential orders founded upon it equally became unsustainable in law, thereby justifying the setting aside of the orders of 11th July 2024. 18. Lastly, the1st Respondent submitted that the learned trial magistrate properly exercised the court’s inherent jurisdiction in correcting an illegality apparent on the record so as to uphold the authority of the High Court and preserve the integrity of the judicial process. Accordingly, the Court was urged to nd that the appeal lacked merit and to dismiss it with costs. 19. This being a rst appeal, the Court is obligated to re-consider, re-evaluate and re- analyze the evidence and the law that was presented before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses who testied. See the case of Peters vs Sunday Post Ltd (1958) EA 424 and Section 78 of the Civil Procedure Act. 20. Accordingly, this Court will not ordinarily interfere with the exercise of discretion by the trial court unless it is shown that the court misdirected itself on the law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations or that its decision is plainly wrong. This principle was succinctly stated in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and rearmed by the Court of Appeal in Peters v Sunday Post Ltd [1958] EA 424. 21. Having carefully considered the Memorandum of Appeal, the Record of Appeal, the rival written submissions and the applicable law, the court is of the considered view that the instant Appeal raises the following issues for determination: i. Whether the learned trial magistrate erred in allowing the substitution of the deceased 1st Respondent and whether the issues of locus standi and abatement were properly before the court. ii. Whether the learned trial magistrate erred in setting aside the orders issued on 11th July 2024. iii. Whether the appeal has merit. iv. Who bears costs of the Appeal? i. Whether the Learned Trial Magistrate Erred in Allowing the Substitution of the Deceased 1st Respondent and whether the Issues of Locus Standi and Abatement were Properly before the Court. 22. The Appellant’s principal complaint is that the trial court permitted the substitution of the deceased 1st Respondent more than nine years after his death without rst reviving the suit or extending time under Order 24 Rule 3 of the Civil Procedure Rules. It was further argued that Mary Ngoiri Tamooh lacked locus standi to prosecute the application dated 15th August 2024, because Land Parcel No. Cismara/Olposimoru/1328, neither formed part of the deceased’s estate nor belonged to him. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5717/eng@2026-09-24 5

page 5 of 8

23. On the other hand, the Respondents contended that the issues of substitution, locus standi and abatement had already been determined by the trial court in its Ruling delivered on 7th April 2025. According to the Respondents, the instant appeal is directed solely against the Ruling delivered on 13th October 2025, and not against the earlier Ruling. Consequently, the ndings made on 7th April 2025, remain valid and binding. 24. Having considered the record before this Court, the court nds merit in the 1st Respondent’s submissions and holds that the impugned Ruling that was delivered on 13th October 2025 was merited and was not in error. The earlier Ruling of 7th April 2025, has neither been appealed against nor sought to be reviewed, and it is settled law that an Appellate court cannot sit on appeal over a decision that has not been challenged. See the case of Standard Chartered Financial Services and Another vs Manchester Outtters Ltd (2016) KECA. 25. A party cannot indirectly invite an Appellate court to reopen ndings contained in an earlier Ruling, which has attained nality merely because those ndings are referenced in a subsequent decision. See the case of Moiz Motors Ltd V Kiluu & another (Civil Appeal 135 of 2025) [2026] KEHC 11089 (KLR) (23 July 2026) (Judgment) at Paragraph 50 where the court refused to entertain an appeal challenging service as the issue had been properly ventilated and determined at the lower court. 26. The Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, emphasized that litigation must come to an end, and that parties are precluded from relitigating matters that have already been conclusively determined by a competent court. The principle serves the public interest in nality of litigation and certainty in judicial proceedings. 27. Consequently, to the extent that the Appellant seeks this Court’s determination on whether Mary Ngoiri Tamooh, lacked locus standi or whether the suit had abated before the application dated 15th August 2024, was led, those issues had already been addressed by the trial court in its Ruling of 7th April 2025. In the absence of an appeal against that Ruling, this Court lacks jurisdiction to revisit those ndings through the present appeal. 28. Even assuming that those issues were properly before this Court, the court is not persuaded that they would alter the outcome of the impugned Ruling. The record demonstrates that Mary Ngoiri Tamooh, was acting in her capacity as an administrator of the estate of the deceased. Whether or not Land Parcel No. Cis-mara/Olposimoru/1328, ultimately formed part of the estate was not the substantive issue falling for determination in the Notice of Motion Application dated 15th August 2024. Rather, the trial court was called upon to determine whether orders founded upon a Judgment that had previously been quashed by the High Court could lawfully remain in force. 29. On whether the learned trial magistrate erred in setting aside the orders issued on 11th July 2024; this constitutes the central issue in this appeal. The Notice of Motion Application dated 15th August 2024, principally sought to set aside the orders issued on 11th July 2024, on the ground that they had been extracted from a Judgment which had already been quashed by the High Court in Kericho High Court Judicial Review Miscellaneous Civil Application No. 5 of 2011. 30. The legal eect of an order of Certiorari is no longer open to debate. Once an order of certiorari is issued, quashing a decision, that decision is removed into the superior court and ceases to exist in law. It cannot thereafter confer rights, impose obligations or form the legal foundation of any subsequent proceedings. Any consequential act founded exclusively upon such a decision is equally deprived of legal ecacy. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5717/eng@2026-09-24 6

page 6 of 8

31. The Court of Appeal in Chumo Arap Songok v David Kibiego Rotich [2006] Eklr, observed that courts possess inherent jurisdiction to correct an illegality and to prevent the judicial process from being used to perpetuate an injustice. 32. Similarly, in the case of Isaac Wanjohi & Another v Attorney General & 6 Others [2012] eKLR, the Court held that once a decision has been quashed, any consequential acts founded upon it cannot stand. 33. The record before this Court shows that the trial magistrate found that the orders of 11th July 2024, had been obtained without disclosure that the Judgment sought to be implemented had previously been quashed by the High Court. Once that fact became apparent, the trial court could not shut its eyes to the illegality. Courts exist to uphold the rule of law, and cannot knowingly permit the enforcement of orders founded upon a Judgment that has ceased to exist. 34. Therefore, this court nds no error in the learned trial magistrate’s conclusion that the orders of 11th July 2024, could not remain in force. The learned magistrate was not re-opening the merits of the dispute over ownership of Land Parcel No. Cis-mara/Olposimoru/1328. Rather, he was restoring legality to the proceedings by vacating orders whose legal foundation had been removed by a superior court. 35. The Appellant devoted considerable submissions to the ownership of Land Parcel No Cis-mara/ Olposimoru/1328, and whether the said land parcel formed part of the deceased’s estate. While those matters may arise in appropriate proceedings, they did not answer the legal question confronting the trial court. The impugned application neither sought a declaration of ownership nor cancellation of title. The learned magistrate was therefore entitled to decline to determine questions that were collateral to the issue before him. 36. Having independently reviewed the Record of Appeal, the impugned Ruling, the parties’ respective written submissions, and the applicable law, this court is not persuaded that the learned trial magistrate misdirected himself in law or in fact. The Appellant has not demonstrated that the learned trial magistrate acted on wrong principles, ignored relevant matters or reached a decision that no reasonable tribunal properly directing itself on the law would have reached. 37. In the premises, this Court in its appellate jurisdiction nds and holds that the instant Appeal is devoid of merit and proceeds to issue the following orders: i. The appeal is hereby dismissed. ii. The Ruling of Hon. G. Sagero (Principal Magistrate) delivered on 13th October 2025, in Narok Chief Magistrate’s Court Environment and Land Case No. 13 of 2010 is hereby upheld. iii. The Appellant shall bear the costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF SEPTEMBER 2026. L. GACHERU JUDGE Delivered in the presence of: Elijah Meyoki – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5717/eng@2026-09-24 7

page 7 of 8

Mr. Karanja Mbugua for the Appellant. Ms. Muchiri holding brief for Mr Nyamwaya for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5717/eng@2026-09-24 8

page 8 of 8