1. Before this Court are two applications filed by the Protestor, Erastus Maritim;
a) A Chamber Summons dated 10 th December 2025 brought under Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules and Rule 73 of the Probate and Administration Rules.
b) A Notice of Motion dated 16 th April 2025 brought under Section 1A, 1B,3,3A & 63(e) of Civil Procedure Act, Cap 21 laws of Kenya, Order 51 rule 1 of the Civil Procedure Rules, seeking stay of execution of the judgement and/or decree delivered on 27 th February 2025 pending appeal to the Court of Appeal.
2. Both applications arise from the same substratum of facts and are hereby consolidated and determined together in this ruling.
3. The deceased, Samwel Maritim Chumek alias Maritim Arap Chumek, died on 7 th April 1979.
4. On 16 th April 2021, Hon. Justice Asenath Ongeri delivered a judgement in this cause (hereinafter “the 2021 judgment”). The Court made the following findings;
a) That the deceased died in 1979 before the Law of Succession Act came into operation on 1 st July 1981.
b) By dint of Section 2(2) of the Law of Succession Act, the Act does not apply to the estate of the deceased.
c) The deceased had already distributed his property and settled his family during his lifetime.
d) The protest was upheld and the property was to be distributed in accordance with Kipsigis customary law.
5. No appeal was filed against the 2021 Judgement of Lady Justice Ongeri. It therefore remains valid and binding.
6. On 27 th February 2025, this court delivered a ruling (hereinafter "the 2025 Ruling") confirming the grant and distributing the estate. The Court held at paragraph 20;
"It is the finding of this court that the mode of distribution propounded in the summons for confirmation of grant is in tandem with the legal provisions on intestate distribution."
7. The Court cited the Court of Appeal case of Justus Thiora Kiugu & 4 Others v Joyce Nkatha Kiugu & Another [2015] eKLR for the proposition that in the absence of a written consent on the mode of distribution, the court has no discretion but to distribute the estate under the Law of Succession Act.
7. The Protestor, being aggrieved, filed the two applications now before this Court.
8. The Chamber Summons dated 10 th December 2025 seeks the following orders interalia;
a) That leave be granted for the firm of M/S E.M. ORINA to come on record on behalf of the Protestor post judgement.
b) That the ruling and orders issued by this Court on 27 th February 2025 and the certificate of confirmation of grant issued on the same date be reviewed and set aside and/or varied accordingly.
c) That costs be provided for.
9. The Notice of Motion dated 16 th April 2025 seeks stay of execution of the judgement and/or decree delivered on 27 th February 2025 pending the hearing and determination of an intended appeal to the Court of Appeal and costs. It is supported by the supporting affidavit of Erastus Maritim sworn on 16 th April 2025 and a notice of appeal dated 10 th March 2025.
10. The 1 st and 2 nd Petitioners/Respondents have opposed both applications. They filed a Replying Affidavit dated 22 nd January 2026 and Written Submissions dated 21 st March 2026, contending that the applications are res judicata , this Court is functus officio and the applications are an abuse of the court process.
11. The 3 rd Petitioner/Respondent filed a Replying Affidavit dated 16 th June 2025 opposing the stay application on grounds that no leave to appeal had been obtained.
12. The Protestor filed a Further Affidavit dated 17 th February 2026 responding to the Petitioners' allegations and annexing photographs of developments on the land (EM-1), Minutes of the elders' meeting held on 27 th November 2025 (EM-2) and Police OB report dated 9 th December 2025 (EM-3).
13. The following issues arise for determination;
a) Whether the applications are res judicata.
b) Whether this Court is functus officio.
c) Whether leave should be granted for the firm of M/S E.M. ORINA to come on record for the Protestor post judgement.
d) Whether the 2025 Ruling contains an error apparent on the face of the record warranting review.
e) Whether the Stay Application has been overtaken by events.
f) Who should bear the costs.
14. The Petitioners contend that both applications are res judicata having been determined in the 2025 Ruling.
15. Section 7 of the Civil Procedure Act provides;
"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties... and has been heard and finally decided by such court."
16. The Court of Appeal in Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR held that the doctrine of res judicata does not bar an application for review under Order 45 where an error apparent is shown on the face of the record.
17. The application before this Court is not seeking to re-litigate the merits of the distribution. It is seeking to correct an alleged error apparent on the face of the 2025 Ruling. Accordingly, I find that the applications are not res judicata.
18. The Petitioners contend that this Court became functus officio after delivering the 2025 Ruling. The Court of Appeal in Telkom Kenya Limited v John Ochanda [2014] eKLR stated;
"The functus officio doctrine is not absolute. It admits of exceptions, one of which is the power to review a decision on grounds of error apparent on the face of the record ."
19. Order 45 Rule 1 of the Civil Procedure Rules is an express statutory exception to the functus officio doctrine. Rule 73 of the Probate and Administration Rules further preserves the inherent power of this Court to make such orders as may be necessary for the ends of justice. I therefore find that this Court is not functus officio.
20. The Protestor seeks leave for the firm of M/S E.M. ORINA to come on record on his behalf post judgement. In Lilian Wanjiku Gachatha v John Gachatha & 6 Others [2019] eKLR , the Court held that a party has an unfettered right to change advocates, and leave should be granted unless there is evidence of abuse of process or prejudice to the other parties. There is no evidence that the change of advocates is intended to delay the proceedings or prejudice the Petitioners. Accordingly, prayer (b) of the Chamber Summons dated 10 th December 2025 is hereby allowed.
21. This is the core issue for determination is whether the 2025 ruling contains an error apparent on the face of the record. In Nyamogo & Nyamogo v Kogo [2001] EA 174 , the Court of Appeal stated;
" Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out."
22. I have carefully compared the 2021 Judgement and the 2025 Ruling. The 2021 Judgement held at paragraph 19;
"I find that there is no dispute that the deceased died in 1979 before the Law of Succession Act came into operation and for that reason, the Law of Succession Act is not applicable."
At paragraph 22;
"I accordingly uphold the Protest and direct that the property be distributed in accordance with Kipsigis Customary Law."
23. The 2025 Ruling held at paragraph 20;
"It is the finding of this court that the mode of distribution propounded in the summons for confirmation of grant is in tandem with the legal provisions on intestate distribution."
24. The two decisions are irreconcilable. The 2021 Judgement expressly held that the Law of Succession Act does not apply to this estate. The 2025 Ruling proceeded to distribute the estate under that very Act.
25. The 2025 Ruling did not overrule the 2021 Judgement. It did not distinguish it. It did not even acknowledge that the 2021 Judgement had made a binding finding on the applicable law. No appeal was filed against the 2021 Judgement. I find that the 2025 Ruling contains an error apparent on the face of the record warranting review and setting aside.
26. Accordingly, prayer (c) of the Chamber Summons dated 10 th December 2025 is hereby allowed. The ruling delivered on 27 th February 2025 and the certificate of confirmation of grant issued on the same date are hereby reviewed, set aside, and varied.
27. The Stay Application seeks a stay of execution of the judgement and/or decree delivered on 27 th February 2025 pending appeal to the Court of Appeal. However, this Court has just set aside the 2025 Ruling in its entirety. The 2025 Ruling no longer exists as a valid and enforceable order of this Court.
28. In Kenya Hotel Properties Limited v Willesden Properties Limited [2017] eKLR , the Court held that an application for stay of execution becomes moot and spent once the order sought to be stayed is no longer in existence.
29. Having set aside the 2025 Ruling, there is no subsisting order upon which a stay of execution can operate. The Stay Application has therefore been overtaken by events. Accordingly, the Notice of Motion dated 16 th April 2025 is hereby marked as spent.
30. The minutes of the elders' meeting held on 27 th November 2025 (EM-2) are consistent with the 2021 Judgement. The elders unanimously resolved that the distribution of the estate had already been determined and settled by the deceased, and that the status quo should be maintained.
31. The Petitioners alleged that the Protestor has obstructed survey, prevented access to portions, convened extrajudicial meetings, and disposed of land to third parties. Having considered the evidence, I find that;
a) The survey was based on a ruling that this Court has now found to contain an error apparent.
b) The police OB report (EM-3) confirms that the 1 st household invaded the farm with weapons on 9 th December 2025.
c) The elders' meeting was convened pursuant to the 2021 Judgement.
d) No evidence was provided to support the allegation of disposal of land by the Protestor.
32. In view of the forgoing, I make the following orders;
a) Leave is hereby granted for the firm of M/S E.M. ORINA to come on record on behalf of the Protestor post judgement.
b) The ruling of this Court delivered on 27 th February 2025 and the certificate of confirmation of grant issued on the same date are hereby reviewed and set aside.
c) The distribution of the estate of the deceased shall be governed by the Judgement of Hon. Lady Justice Asenath Ongeri dated 16 th April 2021.
d) The deceased had already distributed his property and settled the beneficiaries during his lifetime. The estate be distributed as done by the deceased as follows;
1 st House .............Kericho/Tumoi/2
2 nd House ............Kericho/Tumoi/547
3 rd House .............Kericho/Kyogong/238
e) The Notice of Motion dated 16 th April 2025 is hereby marked as spent.
f) Each party shall bear their own costs of both applications given that this is a family matter.
Delivered, signed and dated at NAKURU this 21 st day of May 2026.
......................
J. K. SERGON
JUDGE
In the presence of;
C/Assistant- Rutoh
Bore for the 1 st and 2 nd petitioners.
a) A Chamber Summons dated 10 th December 2025 brought under Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules and Rule 73 of the Probate and Administration Rules.
b) A Notice of Motion dated 16 th April 2025 brought under Section 1A, 1B,3,3A & 63(e) of Civil Procedure Act, Cap 21 laws of Kenya, Order 51 rule 1 of the Civil Procedure Rules, seeking stay of execution of the judgement and/or decree delivered on 27 th February 2025 pending appeal to the Court of Appeal.
2. Both applications arise from the same substratum of facts and are hereby consolidated and determined together in this ruling.
3. The deceased, Samwel Maritim Chumek alias Maritim Arap Chumek, died on 7 th April 1979.
4. On 16 th April 2021, Hon. Justice Asenath Ongeri delivered a judgement in this cause (hereinafter “the 2021 judgment”). The Court made the following findings;
a) That the deceased died in 1979 before the Law of Succession Act came into operation on 1 st July 1981.
b) By dint of Section 2(2) of the Law of Succession Act, the Act does not apply to the estate of the deceased.
c) The deceased had already distributed his property and settled his family during his lifetime.
d) The protest was upheld and the property was to be distributed in accordance with Kipsigis customary law.
5. No appeal was filed against the 2021 Judgement of Lady Justice Ongeri. It therefore remains valid and binding.
6. On 27 th February 2025, this court delivered a ruling (hereinafter "the 2025 Ruling") confirming the grant and distributing the estate. The Court held at paragraph 20;
"It is the finding of this court that the mode of distribution propounded in the summons for confirmation of grant is in tandem with the legal provisions on intestate distribution."
7. The Court cited the Court of Appeal case of Justus Thiora Kiugu & 4 Others v Joyce Nkatha Kiugu & Another [2015] eKLR for the proposition that in the absence of a written consent on the mode of distribution, the court has no discretion but to distribute the estate under the Law of Succession Act.
7. The Protestor, being aggrieved, filed the two applications now before this Court.
8. The Chamber Summons dated 10 th December 2025 seeks the following orders interalia;
a) That leave be granted for the firm of M/S E.M. ORINA to come on record on behalf of the Protestor post judgement.
b) That the ruling and orders issued by this Court on 27 th February 2025 and the certificate of confirmation of grant issued on the same date be reviewed and set aside and/or varied accordingly.
c) That costs be provided for.
9. The Notice of Motion dated 16 th April 2025 seeks stay of execution of the judgement and/or decree delivered on 27 th February 2025 pending the hearing and determination of an intended appeal to the Court of Appeal and costs. It is supported by the supporting affidavit of Erastus Maritim sworn on 16 th April 2025 and a notice of appeal dated 10 th March 2025.
10. The 1 st and 2 nd Petitioners/Respondents have opposed both applications. They filed a Replying Affidavit dated 22 nd January 2026 and Written Submissions dated 21 st March 2026, contending that the applications are res judicata , this Court is functus officio and the applications are an abuse of the court process.
11. The 3 rd Petitioner/Respondent filed a Replying Affidavit dated 16 th June 2025 opposing the stay application on grounds that no leave to appeal had been obtained.
12. The Protestor filed a Further Affidavit dated 17 th February 2026 responding to the Petitioners' allegations and annexing photographs of developments on the land (EM-1), Minutes of the elders' meeting held on 27 th November 2025 (EM-2) and Police OB report dated 9 th December 2025 (EM-3).
13. The following issues arise for determination;
a) Whether the applications are res judicata.
b) Whether this Court is functus officio.
c) Whether leave should be granted for the firm of M/S E.M. ORINA to come on record for the Protestor post judgement.
d) Whether the 2025 Ruling contains an error apparent on the face of the record warranting review.
e) Whether the Stay Application has been overtaken by events.
f) Who should bear the costs.
14. The Petitioners contend that both applications are res judicata having been determined in the 2025 Ruling.
15. Section 7 of the Civil Procedure Act provides;
"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties... and has been heard and finally decided by such court."
16. The Court of Appeal in Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR held that the doctrine of res judicata does not bar an application for review under Order 45 where an error apparent is shown on the face of the record.
17. The application before this Court is not seeking to re-litigate the merits of the distribution. It is seeking to correct an alleged error apparent on the face of the 2025 Ruling. Accordingly, I find that the applications are not res judicata.
18. The Petitioners contend that this Court became functus officio after delivering the 2025 Ruling. The Court of Appeal in Telkom Kenya Limited v John Ochanda [2014] eKLR stated;
"The functus officio doctrine is not absolute. It admits of exceptions, one of which is the power to review a decision on grounds of error apparent on the face of the record ."
19. Order 45 Rule 1 of the Civil Procedure Rules is an express statutory exception to the functus officio doctrine. Rule 73 of the Probate and Administration Rules further preserves the inherent power of this Court to make such orders as may be necessary for the ends of justice. I therefore find that this Court is not functus officio.
20. The Protestor seeks leave for the firm of M/S E.M. ORINA to come on record on his behalf post judgement. In Lilian Wanjiku Gachatha v John Gachatha & 6 Others [2019] eKLR , the Court held that a party has an unfettered right to change advocates, and leave should be granted unless there is evidence of abuse of process or prejudice to the other parties. There is no evidence that the change of advocates is intended to delay the proceedings or prejudice the Petitioners. Accordingly, prayer (b) of the Chamber Summons dated 10 th December 2025 is hereby allowed.
21. This is the core issue for determination is whether the 2025 ruling contains an error apparent on the face of the record. In Nyamogo & Nyamogo v Kogo [2001] EA 174 , the Court of Appeal stated;
" Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out."
22. I have carefully compared the 2021 Judgement and the 2025 Ruling. The 2021 Judgement held at paragraph 19;
"I find that there is no dispute that the deceased died in 1979 before the Law of Succession Act came into operation and for that reason, the Law of Succession Act is not applicable."
At paragraph 22;
"I accordingly uphold the Protest and direct that the property be distributed in accordance with Kipsigis Customary Law."
23. The 2025 Ruling held at paragraph 20;
"It is the finding of this court that the mode of distribution propounded in the summons for confirmation of grant is in tandem with the legal provisions on intestate distribution."
24. The two decisions are irreconcilable. The 2021 Judgement expressly held that the Law of Succession Act does not apply to this estate. The 2025 Ruling proceeded to distribute the estate under that very Act.
25. The 2025 Ruling did not overrule the 2021 Judgement. It did not distinguish it. It did not even acknowledge that the 2021 Judgement had made a binding finding on the applicable law. No appeal was filed against the 2021 Judgement. I find that the 2025 Ruling contains an error apparent on the face of the record warranting review and setting aside.
26. Accordingly, prayer (c) of the Chamber Summons dated 10 th December 2025 is hereby allowed. The ruling delivered on 27 th February 2025 and the certificate of confirmation of grant issued on the same date are hereby reviewed, set aside, and varied.
27. The Stay Application seeks a stay of execution of the judgement and/or decree delivered on 27 th February 2025 pending appeal to the Court of Appeal. However, this Court has just set aside the 2025 Ruling in its entirety. The 2025 Ruling no longer exists as a valid and enforceable order of this Court.
28. In Kenya Hotel Properties Limited v Willesden Properties Limited [2017] eKLR , the Court held that an application for stay of execution becomes moot and spent once the order sought to be stayed is no longer in existence.
29. Having set aside the 2025 Ruling, there is no subsisting order upon which a stay of execution can operate. The Stay Application has therefore been overtaken by events. Accordingly, the Notice of Motion dated 16 th April 2025 is hereby marked as spent.
30. The minutes of the elders' meeting held on 27 th November 2025 (EM-2) are consistent with the 2021 Judgement. The elders unanimously resolved that the distribution of the estate had already been determined and settled by the deceased, and that the status quo should be maintained.
31. The Petitioners alleged that the Protestor has obstructed survey, prevented access to portions, convened extrajudicial meetings, and disposed of land to third parties. Having considered the evidence, I find that;
a) The survey was based on a ruling that this Court has now found to contain an error apparent.
b) The police OB report (EM-3) confirms that the 1 st household invaded the farm with weapons on 9 th December 2025.
c) The elders' meeting was convened pursuant to the 2021 Judgement.
d) No evidence was provided to support the allegation of disposal of land by the Protestor.
32. In view of the forgoing, I make the following orders;
a) Leave is hereby granted for the firm of M/S E.M. ORINA to come on record on behalf of the Protestor post judgement.
b) The ruling of this Court delivered on 27 th February 2025 and the certificate of confirmation of grant issued on the same date are hereby reviewed and set aside.
c) The distribution of the estate of the deceased shall be governed by the Judgement of Hon. Lady Justice Asenath Ongeri dated 16 th April 2021.
d) The deceased had already distributed his property and settled the beneficiaries during his lifetime. The estate be distributed as done by the deceased as follows;
1 st House .............Kericho/Tumoi/2
2 nd House ............Kericho/Tumoi/547
3 rd House .............Kericho/Kyogong/238
e) The Notice of Motion dated 16 th April 2025 is hereby marked as spent.
f) Each party shall bear their own costs of both applications given that this is a family matter.
Delivered, signed and dated at NAKURU this 21 st day of May 2026.
......................
J. K. SERGON
JUDGE
In the presence of;
C/Assistant- Rutoh
Bore for the 1 st and 2 nd petitioners.