JUDGMENT OF THE COURT
1. Although the appeal before us ostensibly arises from the decision of the superior court sitting in Kitale in HCCC 115 of 1997, the dispute goes back more than 25 years to April, 1985 when the suit was filed as HCCC 37 of 1985 in Eldoret. It was assigned a new number on transfer to Kitale.
2. The parties have also changed since the suit was first filed. The original defendant was Paul Tamason arap Barmalel (“the late Barmalel”) who died on 27th October, 1986 after filing his defence to the suit but before hearing. After almost 11 years of waiting, Elijah Kipkorir Barmalel (“Elijah”) one of his 22 sons, and Leah Chepkurui Barmalel (“Leah”) one of his four wives, were substituted as his legal representatives and the suit was revived in 1997 pursuant to the provisions of O.XXIII. Elijah and Leah are the appellants before us.
One of the original four plaintiffs, Stephen Malakwen Somogi (“the late Stephen”) also passed on in July 1998 before the suit was heard and was …