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Court of AppealPartially AllowedCivil Appeal No. 9 of 2013· [2017] KECA 229 (KLR)

Industrial Collaborative Limited v Kenya Anti-Corruption Commission [2017] KECA 229 (KLR)

Court of Appeal
6 October 2017
RNR. N. NambuyePKP. O. KiageAMA. K. Murgor
2,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that court applications from different cases cannot be merged into one case unless the underlying cases themselves are first consolidated.

What this practically means

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Executive summary

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The Kenya Anti-Corruption Commission had filed 14 suits against Industrial Collaborative Limited and 13 other defendants seeking declarations that various leases over LR No. 209/13539 (Woodley Joseph Kan'gethe Estate) were fraudulently obtained and should be cancelled. Each defendant applied to strike out the corresponding suit. The respondent then applied to consolidate the 14 striking-out applications so that the ruling in ELC No. 101 of 2007 would apply to all. The High Court (Msaga Mbogoli, J.) allowed the consolidation, and the appellant appealed. The Court of Appeal framed a single issue: whether the learned judge judiciously exercised his discretion to consolidate. Applying the Mbogo v Shah principles on interference with discretionary decisions, the Court found the discretion was not judiciously exercised. Order XI of the retired Civil Procedure Rules concerns consolidation of suits, not applications; since the 14 underlying suits had never been consolidated and no lead file had been designated, there was no foundation for consolidating the applications. The consolidation impermissibly detached the 13 applications from their suits, rendering any ensuing orders unenforceable. Further, the parties to the other suits were never served or heard, breaching their Article 50 fair-hearing rights. The Court allowed the appeal, set aside the ruling, substituted an order dismissing the consolidation motion with no order as to costs, and directed each party to bear its own costs of the appeal.

Key legal issues

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01

Whether consolidation of applications is permissible without prior consolidation of the underlying suits

Holding

It is not; the statutory consolidation provisions (Order XI and Order XXXVII) concern consolidation of suits, and applications cannot be detached from their respective suits and superimposed on another suit without a consolidation order in respect of the suits themselves.

Reasoning

Order XI of the retired Civil Procedure Rules governs consolidation of suits where similar questions of law or fact arise. Here 14 applications arose from 14 different suits involving different defendants. No order had been obtained under Order XXXVII to join and consolidate the other defendants in the appellant's suit or to designate a lead file. Without first consolidating the suits, there was no foundation for consolidating the applications, and any orders made would be unenforceable in the respective suits.

p. 4
02

Whether the failure to serve and hear parties to the other suits breached their right to a fair hearing

Holding

Yes. None of the other persons or parties to the defendants' suits were served with a hearing notice or given an opportunity to participate in the consolidation application, breaching Article 50 of the Constitution.

Reasoning

The consolidation application comprised persons or entities not party to the appellant's suit or application. When it came up for hearing, none of the parties to the defendants' suits were served with hearing notices to appear or participate. A decision affecting their applications made without affording them a hearing breached their constitutional right to a fair hearing under Article 50.

p. 4

Legal principles established

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  • Applications arising from different suits cannot be consolidated unless the substantive suits themselves are first consolidated; detaching applications from their suits renders ensuing orders unenforceable.
  • All persons or entities affected by a consolidation application must be served and heard before consolidation is ordered.
  • An appellate court will not interfere with a trial court's exercise of discretion unless the discretion was exercised on wrong principles, in misapprehension of the law, on no evidence, or where the judge was plainly wrong.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of 19th March 2014 allowing the respondent's Notice of Motion dated 25th October 2009 set aside
  3. 3.Substituted order dismissing the Motion with no order as to costs
  4. 4.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Civil Procedure Actnull
  • Civil Procedure Rules (retired)Order XI
  • Civil Procedure Rules (retired)Order XXXVII
  • Civil Procedure Rules 2010Order 21
  • Civil Procedure Rules 2010Order 37
  • Constitution of Kenya, 2010Article 50

Cases cited (1)

  • Mbogo & Another vs Shah
    [1968] E A 93
On appeal from
High Court at Nairobi
ELC Civil Suit No. 101 of 2007
Jurisdiction invoked
First appellate jurisdiction under the Constitution and the Civil Procedure Act; the Court exercised its power to interfere with a discretionary decision of the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Industrial Collaborative Limited v Kenya Anti-Corruption Commission [2017] KECA 229 (KLR)", Case Analysis (2017). Civil Appeal No. 9 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/229/eng@2017-10-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.