https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4109

Torome & another (Suing in their capacities as administrators of the Estate of the Late Clement Taporu Torome) v Calyx Red Ltd (Environment and Land Appeal E045 of 2025) [2026] KEELC 4109 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4109 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Appeal E045 of 2025 MD Mwangi, J July 2, 2026 Between Nteyie Ene Torome and Dr Raphael Torome Appellant Suing in their capacities as administrators of the Estate of the Late Clement Taporu Torome and Calyx Red Limited Respondent Judgment Introduction and Background 1.Before this court for determination is an appeal arising from the whole of the Ruling and Order of the Honourable Charles Ariba Kutwa, delivered on 24th July 2025 at the Magistrate's Court in Ngong in Miscellaneous Case No. E016 of 2023. 2.The Appellants herein, Nteyie Ene Torome and Dr. Raphael Torome, suing in their capacities as the Administrators of the Estate of the Late Clement Taporu Torome, were objectors in the proceedings before the subordinate court. The appeal is brought against Calyx Red Limited, the Respondent herein, who was the applicant in the proceedings before the trial court. 3.The proceedings giving rise to this appeal emanated from objector proceedings instituted following execution processes undertaken against property alleged to belong to, or be associated with, the Estate of the Late Clement Taporu Torome. 4.The Appellants contend that the learned Magistrate erred both in law and in fact in the manner in which he handled and determined the objection proceedings. In particular, they challenge the refusal by the trial court to hear the objectors' application on its merits and the imposition of a condition requiring the deposit of the decretal sum before the objectors could obtain relief. The Appellants further maintain that there existed no judgment against the Estate of the Late Clement Taporu Torome to warrant such a requirement and that the learned Magistrate failed to properly evaluate the evidence placed before the court, thereby arriving at an erroneous conclusion. 5.Aggrieved by the entirety of the said Ruling and Order delivered on 24th July 2025, the Appellants lodged the present appeal before this Court. 6.In their Memorandum of appeal dated 24th July 2025, the appellants set out the grounds of appeal as:a.The Magistrate erred in law refusing to hear the Objector's application on merit.b.The Magistrate erred in law and in fact in allowing the application on condition that the Objector deposits the Decretal sum in Court.c.The Magistrate erred in law in departing from the law relating to the hearing and determination of Objector proceedings.d.The Magistrate erred in failing to state why he required the Objector to deposit the Decretal sum when no Judgment had been passed against the Estate of Clement Taporu Torome.e.The Learned Magistrate erred in law and fact in failing to consider the evidence by the Appellant thus arriving at a wrong conclusion. 7.The Appellants seek the following orders, as set out verbatim in the Memorandum of Appeal:a.This Appeal be allowed with costs.b.The Proclamation/Notification of Sale dated 1st July, 2025 be lifted and set aside. Analysis of Submissions Appellants’ Submissions 8.The appeal was canvassed by way of written submissions. Both the appellants and the respondents duly filed their written submissions. 9.In their submissions filed on 30th March 2026, the Appellants seek the setting aside of the Trial Court's ruling delivered on 24th July 2025. Their challenge centers on the Trial Court’s imposition of the condition which required the deposit of the decretal sum into court as a prerequisite to halting the attachment of property known as L.R No. 4480/24, Ngong Town. The Appellants frame their case around two fundamental questions for the court’s determination: first, whether the Estate of Clement Taporu Torome can be legally compelled to settle a judgment debt owed by the Estate of Grace Torome, and second, whether the Trial Court’s order conditioning the stay of execution on the deposit of the decretal sum was lawful. 10.To support their position, the Appellants rely on Section 37(1) of the Civil Procedure Act, 2010, arguing that it establishes a clear legal distinction between separate estates and governs execution against the legal representatives of a deceased judgment debtor. They contend that this reinforces the principle that one estate cannot be held liable for another's debts. This argument is read in conjunction with Rule 7(1) of the Probate and Administration Rules to further emphasize the independence of these distinct legal entities. Furthermore, the Appellants rely heavily on the procedural requirements under Order 22, Rules 51 - 54 of the Civil Procedure Rules, 2010. They specifically highlight Rule 52, asserting that the Respondent, as the decree holder, was obligated to intimate in writing within seven days whether they proposed to proceed with execution, a step the Appellants claim was neglected. They further argue that under Rule 53, the Respondent's failure to respond to their objection application meant the trial court was mandatorily bound to lift the attachment rather than impose a conditional stay. Rule 54 is also cited to illustrate the proper procedure for a Respondent to contest an objection vide a Replying Affidavit, a process the Appellants maintain was not followed in this instance. 11.The Appellants fortify these arguments by citing several judicial precedents. They point to MHW v Thomas Ogutta Ongori; AHH (Objector) [2019] KEHC 935 (KLR) to demonstrate that even when a husband and wife are the deceased parties, their respective estates remain legally distinct and their properties cannot be commingled for liability purposes. They also invoke Business Partners International Kenya SME Fund Ltd v Zingo Investments Limited & another [2012] KEHC 5990 (KLR) to argue that where a decree holder fails to controvert an objector's claim of ownership via a Replying Affidavit, the court is required to raise the attachment under Order 22 Rule 53. Additionally, Diani Entertainment Ltd t/a Tandoori Bay v Pawan Kumar Gupta [2016] KEHC 3762 (KLR) is cited to confirm that the court is empowered to lift an attachment automatically when a decree holder fails to file a notice of intention to proceed or a reply to the objection. Finally, the Appellants rely on Arun C Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR to establish that once an objector shows a prima facie interest in the attached property, the burden of proof shifts to the decree holder to demonstrate that the property rightfully belongs to the judgment debtor. 12.The Appellants maintain that they established a prima facie case of ownership regarding the attached property. They conclude that the Trial Court’s conditional order lacked legal justification, contradicted the clear procedural mandates of Order 22, and erroneously penalized the Estate of Clement Taporu Torome for a judgment debt pertaining to a separate legal entity, the Estate of Grace Torome; consequently, they urge the court to allow the appeal and set aside the orders of the trial court. Respondent’s Submissions 13.In their written submissions dated 28th April 2026, the Respondent, disputes the merits of the appeal filed by Nteyie Ene Torome and Dr. Raphael Torome. The Respondent frames the appeal around two primary issues for the court’s determination: whether the appeal is merited and who should bear the costs of the proceedings. They acknowledge the background of the dispute, specifically noting the Appellants' attempt to dissociate the estate of the late Clement Taporu Torome from the judgment debt that was issued against the estate of the late Grace Torome in Ngong Miscellaneous Case No. E016 of 2023. 14.The Respondent challenges the foundation of the Appellants' case by drawing attention to the identity of the parties involved. They highlight the fact that Dr. Raphael Torome serves as the administrator for the estate of Grace Torome, implying that this overlap in administration undermines the Appellants' argument regarding the strict separation of liability between the two estates. More significantly, the Respondent raises a critical procedural objection regarding the scope of the current appeal. They contend that because the application was never substantively determined on its merits by the trial court, as the trial court had merely issued a conditional order during a mention, it is improper for this appellate court to now adjudicate the correctness of those issues. They maintain that since the parties were never accorded a full hearing on the merits by the trial court, the Appellants are attempting to litigate matters prematurely through this appeal. 15.Regarding costs, the Respondent invokes Section 27 of the Civil Procedure Act, which grants the court discretion to award costs to the successful party, asserting the principle that costs should follow the event. Consequently, the Respondent prays that this court exercises its discretion in its favor by dismissing the appeal and awarding them the costs of the proceedings. Issues for Determination 16.Upon a careful review of the Memorandum of Appeal, the Record of Appeal, and the respective written submissions filed by the parties, the issues for determination before this Court, are as follows:i.Whether the Appeal is procedurally ripe for determination on its merits by this Court, or whether, given the status of the proceedings in the lower court, the matter ought to be remitted to the trial court for a substantive hearing;ii.Whether the trial court erred in law and fact by imposing a condition precedent, specifically the deposit of the decretal sum, for the hearing and determination of the Appellants' Objection proceedings; andiii.Whether the property known as L.R No. 4480/24 (Ngong Township Block 2/128), belonging to the Estate of the Late Clement Taporu Torome, is legally liable to attachment and sale in execution of a decree issued against the Estate of the Late Grace Torome.iv.Who shall bear the costs of this Appeal? Analysis and Determination 17.As a first appellate court, this Court is obligated to reconsider and re-evaluate the material that was before the subordinate court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The principles governing a first appeal were succinctly stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect." 18.Similarly, in Peters v Sunday Post Ltd [1958] EA 424, it was stated that:“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand, this jurisdiction should be exercised with caution." 19.Guided by the foregoing principles, I now proceed to determine the issues identified as hereunder; Whether the Appeal is procedurally ripe for determination on its merits by this Court, or whether the matter ought to be remitted to the trial court for substantive hearing 20.The Respondent argues that the objection proceedings were never heard and determined on their merits and that the trial court merely issued a conditional order at the mention stage. Consequently, according to the Respondent, the Appellants are improperly inviting this Court to determine substantive issues that have never been adjudicated by the subordinate court. 21.The record reveals that the Appellants had moved the subordinate court through objection proceedings challenging attachment of property allegedly belonging to the Estate of the Late Clement Taporu Torome. Rather than hearing the objection proceedings in accordance with the procedure prescribed under Order 22 of the Civil Procedure Rules, the trial court directed that execution would only be stayed upon deposit of the decretal sum. 22.The question that therefore arises is whether the appeal is premature. 23.The Court notes that what is before it is an appeal against the ruling and order of 24th July 2025. That ruling imposed a condition affecting the Appellants' substantive right to prosecute their objection proceedings. The conditional order was not merely administrative; it effectively determined the manner in which the objection proceedings would proceed and imposed an obligation upon persons who had denied liability altogether. 24.In Mbogo & Another v Shah [1968] EA 93, the Court stated:“A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been injustice.” 25.The conditional order herein constituted an exercise of judicial discretion. Consequently, this Court is properly seized of jurisdiction to interrogate whether that discretion was exercised judiciously and in accordance with established legal principles. 26.However, this Court must equally be cautious not to usurp the role of the trial court by determining factual matters that were never subjected to substantive adjudication. 27.Accordingly, I find that this appeal is procedurally ripe to the extent that it challenges the legality and propriety of the conditional order issued by the subordinate court. To the extent that the substantive merits of the objection proceedings were never heard, those issues remain within the province of the trial court. Whether the trial court erred in law and fact by imposing a condition precedent requiring deposit of the decretal sum before hearing the objection proceedings 28.This issue lies at the heart of the appeal before this court. Objection proceedings are governed by Order 22 Rules 51 to 54 of the Civil Procedure Rules. 29.Order 22 Rule 51(1) provides that:“Any person claiming to be entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all parties and to the decree-holder of his objection to the attachment of such property." 30.Order 22 Rule 52 states:“Upon receipt of a valid notice under rule 51, the court shall order a stay of the execution for a period of not more than fourteen days and shall call upon the attaching creditor to intimate to the court and to the objector in writing within seven days whether he proposes to proceed with the attachment and execution." 31.Order 22 Rule 53 provides:“If the attaching creditor does not intimate to the court and to the objector within the period specified in rule 52 that he proposes to proceed with the attachment and execution, the court shall order the attachment to be raised." 32.The language employed in Rules 52 and 53 is mandatory. The use of the word "shall" signifies an obligation and not discretion. 33.The Court of Appeal in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR observed that:“The word 'shall' when used in a statutory provision imports a form of command or mandate. It is not permissive." 34.The procedure under Order 22 establishes a ‘self-contained code’ governing objection proceedings. Once an objection is lodged, the decree-holder is afforded an opportunity to elect whether to proceed with execution. If the decree-holder elects to proceed, the objection is then heard and determined. 35.The Rules do not contemplate the imposition of a condition requiring an objector to deposit the decretal sum before being heard. 36.In Business Partners International Kenya SME Fund Ltd v Zingo Investments Limited & Another [2012] eKLR, the Court held that:“The provisions of Order 22 Rule 53 are mandatory. Where the decree holder fails to indicate the intention to proceed with execution and to rebut the objector's claim, the attachment cannot stand." 37.Similarly, in Diani Entertainment Ltd t/a Tandoori Bay v Pawan Kumar Gupta [2016] eKLR, the Court observed that:“The object of the objection proceedings is to determine whether the attached property belongs to the judgment debtor. The rules prescribe the procedure to be followed and where the decree holder fails to comply, the attachment ought to be lifted." 38.The requirement imposed by the trial court effectively transformed objection proceedings into an application for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, where a deposit of security may be ordered. 39.The two procedures are however fundamentally distinct. 40.In objection proceedings, the objector is not seeking indulgence as a judgment debtor. Rather, the objector asserts independent proprietary rights over attached property and denies that the property is available for execution. 41.Requiring such an objector to furnish security equivalent to the decretal sum before he is heard amounts to imposing liability before determination of ownership. 42.This Court therefore finds that the learned Magistrate misdirected himself in law by importing principles applicable to stay pending appeal into objection proceedings governed by Order 22 Rules 51–54 of the Civil Procedure Rules. 43.The conditional order requiring deposit of the decretal sum lacked legal foundation and constituted an improper exercise of judicial discretion. Whether the property belonging to the Estate of Clement Taporu Torome is legally liable to attachment in execution of a decree against the Estate of Grace Torome 44.The Appellants contend that no judgment existed against the Estate of Clement Taporu Torome and that the attached property formed part of a distinct estate. 45.Section 37(1) of the Civil Procedure Act provides:“Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased." 46.The provision contemplates execution against the legal representative of the deceased judgment debtor. It does not authorize execution against a separate estate merely because of familial relationships or overlapping administrators. 47.Rule 7(1) of the Probate and Administration Rules provides:“Where a person dies intestate or testate, his estate shall vest in the personal representative upon grant of representation." 48.Each estate therefore constitutes a separate legal entity administered for the benefit of its own beneficiaries and creditors. 49.In MHW v Thomas Ogutta Ongori; AHH (Objector) [2019] eKLR, the Court held that:“The fact that the deceased persons were husband and wife does not merge their estates. Each estate remains distinct and subject to separate administration." 50.The Court further stated that:“Property belonging to one estate cannot be utilized to satisfy liabilities owed by another estate unless there exists a lawful basis establishing such liability." 51.Further, in Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR, the Court stated:“The objector is only required to establish ownership or a legal interest in the attached property on a prima facie basis. Once that burden is discharged, the evidential burden shifts to the decree holder to prove that the property belongs to the judgment debtor." 52.The material before this Court suggests that the Appellants asserted that L.R No. 4480/24 formed part of the Estate of Clement Taporu Torome and denied that it belonged to the Estate of Grace Torome. 53.Whether the Appellants discharged the evidential burden and whether the decree-holder can establish otherwise are questions requiring evidentiary interrogation. 54.The trial court never undertook that exercise because it declined to hear the objection proceedings on their merits. 55.Consequently, this Court cannot conclusively determine ownership or liability of the property without depriving parties of their right to a fair hearing. 56.Article 50(1) of the Constitution provides:“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court..." 57.The substantive issue of ownership and attachability must therefore be remitted to the subordinate court for hearing and determination in accordance with Order 22 Rules 51–54 of the Civil Procedure Rules. Who shall bear the costs of this Appeal? 58.Section 27(1) of the Civil Procedure Act provides:“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid:Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order." 59.The Appellants have substantially succeeded in demonstrating that the subordinate court misdirected itself in imposing an unlawful condition precedent to the hearing of their objection proceedings. 60.Although this Court has declined to determine the substantive objection proceedings, the appeal has succeeded on the principal issue giving rise to the impugned ruling. In the circumstances, the Appellants are entitled to the costs of this appeal. 61.In the result, this Court finds that:A.The learned Magistrate erred in law and in principle by requiring the Appellants to deposit the decretal sum as a condition precedent to the hearing and determination of the objection proceedings.B.The impugned ruling and or orders issued on 24th July 2025 cannot stand and are hereby set aside.C.The objection proceedings were never substantively heard and determined, and this Court cannot conclusively determine the ownership and attachability of L.R No. 4480/24 on the basis of the present record without violating the parties' right to a fair hearing.D.The objection proceedings shall therefore be remitted to the Chief Magistrate's Court at Ngong for hearing and determination on their merits before a magistrate other than Hon. Charles Ariba Kutwa, in strict compliance with Order 22 Rules 51–54 of the Civil Procedure Rules.E.Pending the hearing and determination of the objection proceedings, the Proclamation/Notification of Sale dated 1st July 2025 and any other or further proclamation(s)/notification(s) of Sale in respect of L.R No. 4480/24 (Ngong Township Block 2/128) is hereby stayed.F.The Appellants shall have the costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 2ND DAY OF JULY 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Ogada for the Appellant(s)Ms. Mwangi h/b for Mr. Nzaku for the RespondentCourt Assistant: Alex