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ELCAllowedEnvironment and Land Court Suit (Nairobi), consolidated with CMCC No. 9093 of 2005 (now ELC 403 of 2014)· [2014] KEELC 339 (KLR)

Joseph Okoyo v Edwin Dickson Wasunna [2014] KEELC 339 (KLR)

Environment and Land Court
16 June 2014
PNP. Nyamweya
3,149 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed consolidation of two suits over the same Lavington property, meaning both disputes will now be heard together before one judge.

What this practically means

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Executive summary

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This was a ruling on the Defendant's application dated 6th August 2013 seeking the consolidation of the Environment and Land Court suit with CMCC No. 9093 of 2005 (Kenya Electricity Generating Company Ltd vs. Edwin Dickson Wasunna), which had by consent been transferred to the Environment and Land Court. The application was opposed by both Plaintiffs. The Plaintiff herein argued that his claim (declaration of trespass, eviction, damages/mesne profits) was specific to the Defendant and consolidation would prejudice fair prosecution of the suit, while KENGEN, through its Legal Manager David Mwangi, deponed that its claim was founded on a lease with the Defendant for monthly rent of Kshs.40,000/= and that the two suits were separate and distinct. Counsel filed written submissions citing authorities on the principles of consolidation, including Nyati Security Guards & Services Ltd v. Municipal Council of Mombasa. The court, P. Nyamweya J, framed the sole issue as whether the suit was amenable to consolidation. Applying the Nyati principles, the court found that the common factors were the Defendant and the suit property, L.R No. 3734/703, Tende Drive, Lavington, and that the reliefs claimed arose out of the same transaction since ownership of the property had passed from KENGEN to the Plaintiff during the pendency of the first suit. Concerns about curtailment of summary process, delay, amendment of pleadings and single decree enforcement were all rejected. The application was allowed and the suits consolidated, with the present suit designated the lead file and costs in the cause.

Key legal issues

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01

Whether the two suits raising ownership, eviction and mesne profits claims over L.R No. 3734/703, Tende Drive, Lavington should be consolidated

Holding

Consolidation was ordered; the reliefs claimed arise out of the same transaction and the suits can conveniently be disposed of simultaneously.

Reasoning

The common factors are the Defendant and the suit property. KENGEN was the registered owner when CMCC 9093 of 2005 was instituted and sought eviction and mesne profits; it then transferred the property to the Plaintiff herein, who now seeks eviction, damages and mesne profits. This chronology satisfies the condition that the rights or relief claimed are in respect of the same transaction. Though the prayers differ, they can conveniently be disposed of simultaneously, and the trial court can issue directions for an orderly hearing.

p. 5
02

Whether consolidation would curtail KENGEN's entitlement to a summary process under Order 36

Holding

No - the summary procedure is unavailable because the Defendant has filed both a defence and a counterclaim, so a full hearing is required.

Reasoning

Order 36 of the Civil Procedure Rules provides for summary procedure where the Defendant has appeared and not filed a defence. In CMCC No. 9093 of 2005 the Defendant has not only filed a defence but also a counterclaim against KENGEN, which inhibits any opportunity to explore a summary process and necessitates a full hearing. The concern that consolidation would curtail KENGEN's summary process therefore does not arise.

p. 5
03

Whether concerns about delay, amendment of pleadings and a single decree would render consolidation undesirable

Holding

No - amendment of pleadings is not necessary and questions of decree, taxation certification and costs can be addressed by directions at the opportune time.

Reasoning

The court found the Plaintiffs need not amend their pleadings to come up with one plaint nor abandon one in place of the other, as this can be addressed by directions. It was inopportune to proceed with the suits separately, and neither suit had commenced full hearing. There was nothing to show that the trial court would not properly address decree matters and costs at the opportune time.

p. 5

Legal principles established

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  • Consolidation may be ordered where there are two or more suits pending in the same court in which a common question of law or fact arises, the rights or reliefs claimed arise out of the same transaction or series of transactions, or where it is otherwise desirable.
  • The task before a court considering consolidation is to compare the suits sought to be consolidated for common questions of law or fact, common transactions, and convenience and efficiency.

Court orders

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  1. 1.The suit herein be consolidated with CMCC No. 9093 of 2005 (now ELC 403 of 2014) for purposes of being heard and determined together, on the basis of the pleadings already filed, subject to subsequent amendments
  2. 2.The Plaintiff herein and KENGEN shall be the 1st and 2nd Plaintiffs respectively in the consolidated suit, while the Defendants in both suits shall be the Defendant in the consolidated suit
  3. 3.The file for the suit herein shall be the lead file for purposes of filing of pleadings and recording of proceedings
  4. 4.The costs of the application dated 6th August 2013 shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 11 Rule 3(1)(h)
  • Civil Procedure RulesOrder 36

Cases cited (4)

  • R.M.G versus N.G. & another, Nairobi HCCC No. 29 of 2009 (O.S)
  • County Council of Nakuru v Simon Ole Kaminta and 3 others
    (2007) eKLR
  • Korean United Church of Kenya & 3 others vs. Seng Ha Sang
    (2014) eKLR
  • Nyati Security Guards & Services Ltd v. Municipal Council of Mombasa
    (2004) eKLR
Jurisdiction invoked
Order 11 Rule 3(1)(h) of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Okoyo v Edwin Dickson Wasunna [2014] KEELC 339 (KLR)", Case Analysis (2014). Environment and Land Court Suit (Nairobi), consolidated with CMCC No. 9093 of 2005 (now ELC 403 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/339/eng@2014-06-16

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