Vincent Erique Omondi v Penina Adhiambo Ongiri (Suing as the Administrator of the Estate of Joseph Ongiri Atito, Deceased), Florence Oborah & others

appeal as Joab Ongiri Atito, is the beneficiary of the estate who was joined as an interested party in the trial court, where he is named as Joab Owino Ongiri. The appellant is represented by M/s MOA Advocates LLP, the 1st respondent by M/s Okello Adipo & Company Advocates, the 2nd respondent by M/s Lugano & Lugano Advocates and the 3rd respondent by the Honourable Attorney General. Background 3. By a plaint dated 19th October 2023 the 1st respondent, suing as the administrator of the estate of Joseph Ongiri Atito (deceased), sought cancellation and annulment of the titles to Kisumu/Nyalunya/7749, 7750, 7751 and 7752, reversion of the suit property to the name of the deceased, and costs with interest. Her case was that the deceased, her late husband, was the registered proprietor of Kisumu/Nyalunya/2970 measuring 0.29 Ha; that he died on 24th January 2008; and that the parcel was fraudulently transferred to the appellant on 28th January 2021 and thereafter subdivided into the four parcels, without her JUDGMENT ELCA NO. E069 OF 2024 2

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knowledge or consent and before any grant had been taken out. 4. The appellant filed a statement of defence and counterclaim dated 6th February 2024. He denied fraud and pleaded that between March 2010 and August 2018 he purchased the whole of Kisumu/Nyalunya/2970 from the 1st respondent and her sons, Joab Owino Ongiri and Alfred Otieno Ongiri, in three transactions for an aggregate consideration of Kshs. 750,000/=; that he took possession; that he lodged a caution on 11th August 2015 and withdrew it on 28th January 2021 to facilitate the transfer; that he subdivided the parcel on or about 12th May 2022; and that on or about 8th December 2022 he transferred Kisumu/Nyalunya/7751 to the 2nd respondent. By his counterclaim he sought declarations that the sale agreements were binding and that the suit parcel belonged to him, together with a permanent injunction and costs. JUDGMENT ELCA NO. E069 OF 2024 3

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5. The 2nd respondent filed a defence on 27th February 2024 asserting that she was an innocent purchaser for value. The 3rd respondent filed a defence dated 15th February 2024. 6. The 1st respondent called two witnesses and closed her case, and the defence hearing was fixed for 21st June 2024. On that date counsel for the appellant informed the trial court that an application had been filed on behalf of one Joab Owino Ongiri, a beneficiary of the estate, seeking joinder as an interested party and a stay of the proceedings pending the hearing and determination of an objection lodged in Kisumu Succession Cause No. 792 of 2018. That notice of motion, dated 20th June 2024, appears at pages 57 to 70 of the record of appeal. Joinder was allowed by consent on 21st June 2024; the balance of the motion was canvassed by written submissions and a ruling was delivered on 10th July 2024. 7. The defence hearing was then fixed for 20th August 2024. On that date counsel for the appellant declined to proceed, stating that the appellant had filed his own application dated JUDGMENT ELCA NO. E069 OF 2024 4

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15th August 2024 seeking a stay. Counsel for the 1st respondent opposed it as being similar to the motion already determined and, on the same day, filed a preliminary objection. The parties agreed that the trial court determine the application and the preliminary objection simultaneously, and a ruling was reserved to 26th August 2024. The typed proceedings for that date record, in their entirety, the words “Ruling delivered”; the ruling itself was not included in the record of appeal and has since been availed from the original court file. 8. It is that ruling of 26th August 2024 which is the subject of this appeal. The interlocutory history of this appeal 9. What followed is material to the disposal of this appeal, and I set it out from this court's own record. On 11th October 2024 the appeal came before Okong'o J., who directed that the appellant's notice of motion dated 1st October 2024 be served for hearing on 22nd October 2024. On 22nd October 2024 the motion, by then amended, was canvassed before JUDGMENT ELCA NO. E069 OF 2024 5

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the learned Judge, Mr. Mwamu appearing for the appellant and Mr. Okello for the 1st respondent. The learned Judge reserved his ruling to 10th December 2024 and ordered that, until then, there be a temporary stay of the proceedings in Kisumu Chief Magistrate's Court ELC Case No. E146 of 2023. 10. On 10th December 2024 Okong'o J. delivered a ruling in which, for the reasons there set out, he recused himself from the further conduct of this appeal. He did not determine the amended motion. In the exercise of the inherent powers of the court he set aside the proceedings of 22nd October 2024 and the orders made on that date, and he directed that the appellant's amended notice of motion be placed before Asati J. for directions and further orders. 11. The effect of that order requires to be stated with precision. The temporary stay of 22nd October 2024 was not discharged upon any hearing on its merits, nor was it vacated upon the application of any party. It was set aside, together with the whole of the proceedings of that day, as a consequence of the recusal. From 10th December 2024, JUDGMENT ELCA NO. E069 OF 2024 6

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therefore, there stood no order of this court restraining the trial court from proceeding. 12. The amended notice of motion dated 11th October 2024 was thereafter placed before Asati J. as directed. By that motion the appellant sought a stay of the proceedings in Kisumu Chief Magistrate's Court ELC Case No. E146 of 2023 until the hearing and determination of this appeal, and a temporary injunction restraining Kisumu/Nyalunya/2970 any pending the dealing appeal. with The 1st respondent opposed the motion by a replying affidavit sworn on 20th October 2024. By a ruling delivered virtually on 13th March 2025 the learned Judge dismissed the application with costs to the respondents. 13. The trial court accordingly proceeded with the hearing. Five days after that ruling, on 18th March 2025, the appellant testified as DW1, Vincent Erique Omondi, was crossexamined at length, and called DW2 and DW3 on 14th April 2025, whereupon his case was closed. The 2nd respondent JUDGMENT ELCA NO. E069 OF 2024 7

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testified on 30th April 2025. The 3rd respondent called no witness. All parties filed final submissions. 14. Judgment was delivered on 30th June 2025. The trial court found that those who purported to sell to the appellant had no grant of representation at the time of the sales and that the sales were therefore a nullity; that the appellant had not acquired a legal, proper and regular title; that the doctrine of the bona fide purchaser was unavailable once the root of title had been impeached; and it proceeded to cancel the four titles and order reversion to the original number 2970 in the name of the deceased, to dismiss the counterclaim, to direct the appellant to refund Kshs. 850,000/= to the 2nd respondent with interest, and to award costs to the 1st and 2nd respondents. A decree issued. A stay of thirty days was granted. The Appeal 15. The memorandum of appeal dated 28th August 2024 raises six grounds, which may be summarised as follows: that the learned magistrate erred in failing to find that the appellant's JUDGMENT ELCA NO. E069 OF 2024 8

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application dated 15th August 2024 was res judicata; in failing to find that there was a pending objection to the issuance of the grant of letters of administration relied upon by the 1st respondent in Succession Cause No. 792 of 2018, listed for hearing on 3rd October 2024; in failing to find that the outcome of those objection proceedings would affect the proceedings in ELC Case No. E146 of 2023 if the same were not stayed; in failing to appreciate the overwhelming evidence tendered by the appellant; in reaching a decision against the weight of the evidence; and in being completely biased against the appellant. 16. The only reliefs sought in the memorandum of appeal are that the appeal be allowed, that the decision of the learned magistrate be set aside, and that the respondents bear the costs of the appeal. Appellant's submissions 17. The appellant's written submissions dated 15th August 2026 frame four issues: whether the application dated 15th August 2024 was res judicata; whether ELC Case No. E146 of JUDGMENT ELCA NO. E069 OF 2024 9

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2023 was competent when the 1st respondent's grant stood contested in Succession Cause No. 792 of 2018; whether the proceedings ought to have been stayed pending determination of the objection; and whether the ruling was against the weight of the evidence. 18. On the first issue, counsel invokes section 7 of the Civil Procedure Act and submits that the issues in ELC Case No. E146 of 2023 had been directly and substantially in issue in previous suits between the appellant and the deceased's family, and that the learned magistrate ought to have called for and perused the previous file. Reliance is placed on John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] eKLR. In the alternative, counsel submits that the matter was sub judice under section 6 of the Civil Procedure Act. 19. On the second and third issues, described in the submissions as the core of the appeal, counsel submits that under section 82 of the Law of Succession Act only a confirmed grant JUDGMENT ELCA NO. E069 OF 2024 10

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confers authority to sue on behalf of an estate, and that a grant contested by way of objection proceedings cannot confer locus standi. It is urged that if the objection succeeds the entire suit collapses, and that this was a classic case for a stay under Article 159 of the Constitution and section 6 of the Civil Procedure Act so as to avoid conflicting decisions. 20. On the fourth issue, counsel submits that the appellant tendered evidence that he is a bona fide purchaser for value without notice, and or has been in open, continuous and uninterrupted occupation for over twelve years, and holds a title regularly issued by the 3rd respondent; that the learned magistrate failed to evaluate that evidence and instead presumed that the grant conferred indefeasible title, contrary to section 26 of the Land Registration Act; and that the ruling is perverse. 21. The prayers in the submissions go beyond the memorandum of appeal. In addition to allowing the appeal and setting aside the ruling, the appellant now asks this court to allow the application dated 15th August 2024 with the result that JUDGMENT ELCA NO. E069 OF 2024 11

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ELC Case No. E146 of 2023 be stayed pending the objection proceedings, or in the alternative that ELC Case No. E146 of 2023 be struck out for being incompetent and res judicata, and for costs here and below. Respondents' submissions 22. The respondents did not file any submissions, despite having been granted the opportunity to do so. The appeal therefore falls to be determined on the appellant's submissions alone; the absence of opposition does not, however, relieve the appellant of the burden of establishing that his appeal is competent and that the ruling appealed from is erroneous. Issues for determination 23. Having considered the memorandum of appeal, the record of appeal, the ruling appealed from and the submissions on record, I frame the following issues for determination: (i) Whether the appeal is competent; (ii) Whether the appeal has been overtaken by events and is now moot; JUDGMENT ELCA NO. E069 OF 2024 12

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(iii) Whether, in any event, magistrate erred proceedings in ELC pending the in the declining learned trial to the Case No. E146 determination of the stay of 2023 objection proceedings in Kisumu Succession Cause No. 792 of 2018; (iv) Whether ELC Case No. E146 of 2023 was res judicata, sub judice or otherwise incompetent for want of locus standi on the part of the 1st respondent; (v) Who should bear the costs of this appeal. Analysis and determination 24. As the Court of Appeal held in Mbogo & another v Shah [1968] EA 93, an appellate court will only interfere where it is satisfied that the trial court misdirected itself in some matter and as a result arrived at a wrong decision, or where it is manifest from the case as a whole that the court was clearly wrong and occasioned injustice. JUDGMENT ELCA NO. E069 OF 2024 13

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(i) Whether the appeal is competent 25. An appeal is determined on the record. Order 42 rule 13(4) of the Civil Procedure Rules places on the appellant the duty of ensuring that the court is furnished with the documents relevant to the appeal. Of all such documents, the one that is indispensable is the ruling or judgment appealed from. Without it there is nothing for the appellate court to examine. 26. I have examined the record of appeal filed herein with care. It comprises the memorandum of appeal; the plaint and its accompanying documents; the 1st defendant's statement of defence and counterclaim and its accompanying documents; a notice of appointment dated 20th June 2024; the notice of motion dated 20th June 2024 taken out by the interested party, together with the certificate of urgency and the supporting affidavit and its annextures; the interested party's submissions dated 28th June 2024; the plaintiff's submissions on that motion; a reply to defence and counterclaim; the 1st defendant's final written submissions JUDGMENT ELCA NO. E069 OF 2024 14

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on the merits of the suit; a letter dated 17th July 2025 requesting proceedings; the typed proceedings; the judgment delivered on 30th June 2025; and the decree. 27. What the record does not contain is the ruling delivered on 26th August 2024. Nor does it contain the application dated 15th August 2024 from which that ruling arose. Nor the preliminary objection filed by the 1st respondent on 20th August 2024. Nor any response to that preliminary objection, nor any submissions of any party upon either the application or the objection. 28. The omission of the ruling appealed from is a serious dereliction of the duty imposed by Order 42 rule 13(4), and I deprecate it. An appellate court cannot be asked to find error in reasoning it has never seen, and an appeal so constituted ordinarily invites no order other than one striking it out. I have, however, called for and perused the original file in Kisumu Chief Magistrate's Court ELC Case No. E146 of 2023, upon which the ruling of 26th August 2024 appears. Article 159(2)(d) of the Constitution requires that justice be JUDGMENT ELCA NO. E069 OF 2024 15

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administered without undue regard to procedural technicalities, and where the document omitted is on the court's own record and may be perused without prejudice to any party, the better course is to cure the defect rather than to shut a litigant out upon it. I have accordingly taken the ruling into account and I proceed to determine this appeal upon its substance. 29. The ruling may be shortly stated. By his notice of motion dated 15th August 2024 the appellant sought, so far as is material, an order staying the proceedings in ELC Case No. E146 of 2023 until the hearing and determination of the objection filed in Kisumu Succession Cause No. 792 of 2018 in the estate of Joseph Ongiri Atito. The motion was supported by the grounds on its face and by the appellant's affidavit sworn on 15th August 2024. In response the 1st respondent filed a preliminary objection dated 20th August 2024 raising the single point of law that the application contravened the doctrine of res judicata as provided for in section 7 of the Civil Procedure Act. When the matter came JUDGMENT ELCA NO. E069 OF 2024 16

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up on 20th August 2024 the parties agreed that the trial court determine the application and the preliminary objection simultaneously. 30. The learned magistrate framed two issues: whether the application dated 15th August 2024 was res judicata, and whether the court should stay its proceedings pending the hearing of the objection proceedings in Succession Cause No. 792 of 2018. He set out section 7 of the Civil Procedure Act; he cited Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR for the proposition that the doctrine of res judicata applies to applications as well as to suits; and he adopted the observations of Odunga J. in Machakos HCCC No. E007 of 2021 upon the salutary aim of the doctrine in bringing finality to litigation. He then found that the application dated 20th June 2024 had sought a stay of the proceedings pending the hearing and determination of the very same objection proceedings; that it had been determined by a ruling dated 10th July 2024; that it had JUDGMENT ELCA NO. E069 OF 2024 17

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been filed by M/s MOA Advocates, who act for both the appellant and the interested party; and that the issue whether the proceedings should be stayed had accordingly already been determined by that court. He held the application to be res judicata and dismissed it with costs to the plaintiff. Having so found, he did not proceed to determine the second issue. 31. There remains a question which goes to jurisdiction and which I raise of my own motion. An order declining to stay proceedings is not among the orders from which an appeal lies as of right under Order 43 rule 1 of the Civil Procedure Rules. An appeal against such an order lies only with the leave of the court, under Order 43 rule 2. The record before me discloses no application for leave and no grant of leave, and no party has addressed me upon the point. An appeal brought without leave where leave is required is incompetent from inception and is ordinarily liable to be struck out upon that ground alone. I do not, however, rest my decision upon that footing. The objection was not taken JUDGMENT ELCA NO. E069 OF 2024 18

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by any respondent, the appellant has had no opportunity to meet it, and the record is silent rather than adverse. Since the appeal fails in any event, and upon grounds which are plain upon the material before me, I say no more than that the question of leave was never addressed; and, proceeding upon the assumption most favourable to the appellant and the defect in the record having been cured in the manner I have described, I turn to the remaining issues. (ii) Whether the appeal has been overtaken by events 32. Whatever the position may be as to leave, the appeal faces a more fundamental obstacle: its substratum has fallen away entirely. 33. The relief the appellant seeks is an order staying the proceedings in ELC Case No. E146 of 2023 pending the determination of the objection in Succession Cause No. 792 of 2018. There are no longer any proceedings in ELC Case No. E146 of 2023 capable of being stayed. That suit was heard to conclusion. Judgment was delivered on 30th June 2025. A decree has been extracted. The suit is at an end in JUDGMENT ELCA NO. E069 OF 2024 19

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the trial court. I would add that the status of the objection proceedings in Succession Cause No. 792 of 2018 the very proceedings pending which the stay was sought has never been disclosed to this court. Asati J. said as much on 13th March 2025, and the position is unchanged eighteen months later. Nothing has been placed before me to show that the objection has been heard, that it has been determined, or indeed that it remains alive. 34. A court does not act in vain. It will not make an order that is incapable of execution or that can serve no practical purpose between the parties. To stay proceedings that have already run their full course and issued in a judgment and a decree would be an empty exercise. Courts determine live controversies; they do not pronounce upon questions that have become academic through the passage of events. 35. I would add this, and it is decisive of any suggestion that the appellant has been overtaken through no fault of his own. He did not lack the opportunity to protect his position pending this appeal. He sought that protection, and it was refused. JUDGMENT ELCA NO. E069 OF 2024 20

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The temporary stay of 22nd October 2024 was set aside on 10th December 2024. His amended notice of motion, by which he asked this court for a stay of the trial pending the appeal and for an injunction, was heard and dismissed with costs by Asati J. on 13th March 2025. From that date he stood before the trial court with no order of this court in his favour, and he knew it. He did not seek a review of that ruling. He did not appeal against it. He did not apply afresh. Five days later he entered upon his defence. He gave evidence as DW1 on 18th March 2025. He submitted to cross-examination. He called DW2 and DW3 on 14th April 2025 and closed his case. He filed final written submissions addressing the merits of the claim and the counterclaim, which submissions form part of this very record of appeal. Meanwhile this appeal lay unprosecuted. The record of appeal was filed only on 7th July 2026, more than a year after judgment had been entered against him, and the appeal was admitted to hearing on 29th July 2026. Having elected to take his full part in the trial, and having invited the trial court to determine the suit in his favour, the JUDGMENT ELCA NO. E069 OF 2024 21

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appellant cannot now be heard to say, through an interlocutory appeal from a ruling made before that trial resumed, that the trial ought never to have taken place. 36. As to the alternative prayer that ELC Case No. E146 of 2023 be struck out as incompetent and res judicata, two answers suffice. First, no such relief was sought in the memorandum of appeal, no application to amend that memorandum was ever made before me, and a party is confined on appeal to the grounds and reliefs it has pleaded; submissions cannot enlarge a memorandum of appeal. Second, and in any event, a suit that has been heard and determined by a judgment and a decree cannot be struck out on an interlocutory appeal from a ruling made during its currency. If the appellant is aggrieved by the judgment of 30th June 2025 his remedy is an appeal against that judgment, properly constituted and properly brought, in which the questions of locus standi and competence he now raises would be fully open to him. JUDGMENT ELCA NO. E069 OF 2024 22

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(iii) and (iv) The substantive grounds 37. Lest it be thought that the appellant has been shut out upon a preliminary point alone, and the ruling appealed from being now before me, I turn to the substance of his complaints. Nothing in what follows is to be read as a determination of the merits of the judgment and decree of 30th June 2025, which are not before me. 38. On res judicata, section 7 of the Civil Procedure Act requires that the matter in issue has been directly and substantially in issue in a former suit between the same parties, litigating under the same title, in a court competent to try the subsequent suit, and that it was heard and finally decided. The ingredients were restated by the Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others (Supra), on which the appellant himself relies. Ground 1 of the memorandum of appeal complains that the learned magistrate erred in failing to find that the appellant's application dated 15th August 2024 was res judicata. With JUDGMENT ELCA NO. E069 OF 2024 23

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the ruling now before me the answer to that ground is complete: the learned magistrate found precisely that. He held the application to be res judicata and dismissed it upon that ground alone. A ground of appeal which complains of a failure to make the very finding that was made cannot succeed. If what was intended was that the plaint itself was res judicata, the appellant identified no former suit, produced no former pleadings, no former judgment and no former decree. A bare assertion that “previous suits” existed, coupled with an invitation to the trial court to call for and peruse an unidentified file, does not discharge the burden upon the party raising the plea. 39. Nor can I fault the finding itself. The motion dated 20th June 2024 sought, in terms, a stay of the proceedings pending the hearing and determination of the objection in Succession Cause No. 792 of 2018. It was argued and determined by a ruling delivered on 10th July 2024. The appellant's motion dated 15th August 2024, filed some five weeks later and served on the morning of the defence hearing, sought the JUDGMENT ELCA NO. E069 OF 2024 24

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very same relief upon the very same ground, and both motions were taken out by the same firm of advocates. To re-agitate a determined question by a fresh application in the same suit is an abuse of the process of the court, and the learned magistrate was entitled to say so. Nor does it assist the appellant that the second issue framed in the ruling was left undetermined. Once the application was found to be barred it fell to be dismissed in limine, and the discretion to stay did not arise for exercise. A court which has found an application res judicata does not go on to determine it upon its merits. 40. On sub judice, section 6 of the Civil Procedure Act is directed at a previously instituted suit between the same parties in which the matter in issue is also directly and substantially in issue. Kisumu Succession Cause No. 792 of 2018 concerns the administration and distribution of the estate of Joseph Ongiri Atito. ELC Case No. E146 of 2023 concerns the validity of the titles to Kisumu/Nyalunya/7749, 7750, 7751 and 7752 and the circumstances of their creation. The 2nd and 3rd JUDGMENT ELCA NO. E069 OF 2024 25

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respondents are not parties to the succession cause. The parties are not the same and the matter in issue is not the same. Section 6 was not engaged, and the question whether to stay in such circumstances was one of discretion, not of right. 41. On locus standi, the appellant's central proposition is that only a confirmed grant confers authority to sue on behalf of an estate and that a contested grant confers none. The first limb of that proposition answers the appellant on the record before me. The certificate of confirmation of grant issued to the 1st respondent, exhibited as “JO2” to the supporting affidavit of Joab Owino Ongiri at page 70 of the record of appeal, certifies that the grant was confirmed on 29th May 2020 under section 71 of the Law of Succession Act. That is more than three years before the plaint of 19th October 2023. The 1st respondent therefore sued on a confirmed grant. 42. The second limb is misconceived in law. Section 79 of the Law of Succession Act vests the estate of a deceased person JUDGMENT ELCA NO. E069 OF 2024 26

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in the personal representative upon the grant, and section 82 confers the powers of a personal representative. A grant, once issued, is valid and effective for all purposes until it is revoked or annulled under section 76 by the court that made it. The mere lodging of an objection, or of an application for revocation, does not suspend the grant, does not divest the administrator of the estate, and does not deprive her of the capacity to sue to preserve it. Indeed the contrary rule would be perverse: an administrator faced with the alienation of estate property would be disabled from protecting it by the simple expedient of an objection filed by any beneficiary. See Morjaria v Abdalla [1984] KLR 490. 43. I note, further, that the proceedings of 9th October 2024 record that the order of Hon. Cheruiyot of 3rd October 2024 in the succession cause, upon which the appellant then relied as having revoked the grant, had itself been set aside, so that the order relied upon was no longer in force. The trial court so found, and dismissed the preliminary objection then before it on that basis. JUDGMENT ELCA NO. E069 OF 2024 27

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44. Grounds 4 and 5, that the learned magistrate failed to appreciate overwhelming evidence and decided against the weight of the evidence, are misconceived when directed at an interlocutory ruling. No evidence was taken on 20th or 26th August 2024, and the ruling proceeds, as it was agreed it should, upon a point of law raised by preliminary objection. The submissions now made upon the appellant's status as a bona fide purchaser for value, upon section 26 of the Land Registration Act, and upon occupation for over twelve years, address the merits of the suit. They were not before the learned magistrate upon the application and they cannot be entertained upon an appeal from his ruling upon it. I observe in passing that adverse possession was neither pleaded in the counterclaim nor is it available to a party whose claim is founded upon purchase and registration. 45. Ground 6, that the learned magistrate was completely biased against the appellant, is a grave allegation against a judicial officer. It is pleaded without a single particular. No material whatsoever was placed before me in support of it, JUDGMENT ELCA NO. E069 OF 2024 28

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and it was not pursued in the appellant's submissions. Having now read the ruling, I find it to be a considered determination which identifies the point taken against the appellant, sets out the law relied upon and gives reasons for the conclusion reached. There is nothing in it, nor in the proceedings leading to it, capable of supporting a charge of bias. I treat the ground as abandoned, and I would nonetheless deprecate the practice of pleading bias as a makeweight. An allegation of bias impugns the integrity of the judicial process and should never be made unless counsel is in a position to particularise it and to support it with material. (v) Costs 46. In respect of costs, and having considered the circumstances of this appeal, it is hereby directed that each party bears own costs of the appeal. Final orders 47. For the reasons set out above, I make the following orders: JUDGMENT ELCA NO. E069 OF 2024 29

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i. The appeal against the ruling of Hon. F. M. Rashid, Principal Magistrate, delivered on 26th August 2024 in Kisumu Chief Magistrate's Court ELC Case No. E146 of 2023, having been overtaken by events and being in any event devoid of merit, is hereby dismissed. ii. Each party to bear own costs of the appeal. iii. The file is hereby closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 30TH DAY OF SEPTEMBER 2026. E. K. WABWOTO JUDGE In the presence of: N/A for the Appellant N/A for the 1st Respondent. Mr. Okelo for the 2nd Respondent N/A for the 3rd Respondent N/A for the 4th Respondent Court Assistant; Joanne Omondi JUDGMENT ELCA NO. E069 OF 2024 30

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