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ELCStruck OutHC ELC NO. 782 of 2013 (formerly HCCC NO. 24 of 2007)· [2014] KEELC 628 (KLR)

Mwanthi Mugwe & 2 others v Ali Sheikh Mohammed & 6 others [2014] KEELC 628 (KLR)

High Court of Kenya, Environment and Land Division
23 October 2014
JMJ. M. Mutungi
2,312 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Division of the High Court (Mutungi J) determined a Notice of Motion dated 7th March 2014 by the 2nd Defendant, Golden Lime International Limited, seeking a temporary injunction over parcels L.R.NO.36/VII/1037 and L.R.NO.36/VII/48 (Eastleigh open Air market) and leave to file an amended defence and counterclaim. The application was made in HC ELC NO. 782 of 2013, formerly HCCC NO. 24 of 2007, which had operated as the lead file of suits stated to be consolidated with HCCC NO. 589 of 2008, HCCC NO. 615 of 2008 and HC (JR) NO. 37 of 2009. The lead file and HCCC NO. 615 of 2008 had been dismissed after the court found the plaintiffs' authority to institute the representative suits defective. Preliminary objections were taken that Golden Lime was a trespasser and could not seek an injunction against a co-defendant, that its application was an abuse of process and contempt of a Court of Appeal order, and that its Public Private Partnership had expired. The court held, on a review of the record, that no formal order consolidating the suits was ever made; the directions of 15th January 2009 by Kihara Kariuki J only required the pending interlocutory applications to be heard together. Accordingly the dismissal of the lead file did not extinguish HCCC NO. 589 of 2008, but the application had been lodged in the wrong, dismissed file and ought to have been made in HCCC NO. 589 of 2008. The preliminary objection was upheld, the application was struck out and dismissed, with no order as to costs.

Key legal issues

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01

Whether the suits were consolidated

Holding

No formal consolidation order was ever made; only interlocutory applications were ordered to be heard together

Reasoning

The court perused the record of the lead file and found no order directing consolidation of the four suits. The 15th January 2009 directions by Kihara Kariuki J only ordered the pending interlocutory applications to be heard together on 3rd February 2009, with a status quo order. Conduct of parties cannot substitute for a consolidation order.

p. 5
02

Whether the application was properly filed in ELC NO. 782 of 2013

Holding

The application was incompetent as it was filed in a dismissed suit

Reasoning

Since no consolidation occurred, the dismissal of HCCC 24 of 2007 and HCCC 615 of 2008 did not affect HCCC 589 of 2008, which remains alive. However, the applicant's application had to be made in HCCC 589 of 2008, not in the dismissed lead file. The preliminary objection was therefore upheld.

p. 6

Legal principles established

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  • Consolidation requires a formal order; parties conducting themselves as if suits were consolidated does not consolidate them
  • Where suits are consolidated, the issues merge and the suits must be tried together, not dealt with piecemeal

Court orders

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  1. 1.The 2nd Defendant's application (Notice of Motion dated 7th March 2014) struck out and dismissed
  2. 2.No order as to costs

Authorities

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Cases cited (1)

  • Giella –vs- Cassman Brown
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Division) over suits transferred from HCCC to ELC

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, "Mwanthi Mugwe & 2 others v Ali Sheikh Mohammed & 6 others [2014] KEELC 628 (KLR)", Case Analysis (2014). HC ELC NO. 782 of 2013 (formerly HCCC NO. 24 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/628/eng@2014-10-23

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