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ELCAllowedNyeri ELC (case number not stated on the face of the judgment)· [2015] KEELC 249 (KLR)

John Mwangi Wamai v Teresa Gathiri Mwema [2015] KEELC 249 (KLR)

Environment and Land Court
11 May 2015
LWL N Waithaka
1,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When two Kenyan cases involve the same land dispute and parties, courts will usually combine them for one hearing rather than throw either case out.

What this practically means

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Executive summary

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The 1st defendant, Teresa Gathiri Mwema, moved the court by notice of motion dated 27th May 2014 seeking consolidation of her suit with Nyeri ELC No. 27 of 2014 on the grounds that the parties and subject matter in both suits were the same, that consolidation served the interest of justice, and that no prejudice would be suffered. The plaintiff, John Mwaniki Wamai, opposed the application through a replying affidavit and a preliminary objection, contending that the application was res sub judice Nyeri ELC No. 27 of 2014, that the applicant should have lodged a counter-claim in the earlier suit, that the court lacked jurisdiction, and that the suit was an abuse of process. The 2nd defendant, William Ngatia Kariuki, also opposed, noting the parties were identical and that the issues should have been raised in the former suit. In written submissions, the applicant conceded identity of parties and issues but explained she could not file a counter-claim because her claim arose from her co-defendant's activities. The plaintiff relied on Thiba Min Hydro and the Malindi JR decision on Section 6 of the Civil Procedure Act. The court, Waithaka J, found the explanation reasonable, endorsed Olao J's observation that the remedy for sub judice is a stay or consolidation rather than striking out, held consolidation to be in the interest of justice, and allowed the application in terms of prayer (1), with costs in cause.

Key legal issues

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01

Whether suits with the same parties and subject matter should be consolidated rather than struck out as res sub judice

Holding

Where the subject matter and parties are the same and no prejudice is demonstrated, consolidation in the interest of justice is the appropriate remedy rather than striking out.

Reasoning

The court found the applicant's explanation for not filing a counter-claim (that her claim arose from the activities of her co-defendant rather than the plaintiff) reasonable. Adopting Olao J's observation in Thiba Min Hydro, the court held the remedy for sub judice is a stay or consolidation. The respondents did not demonstrate prejudice. Order 11 contemplates consideration of consolidation at case conference, furthering expeditious disposal.

p. 3

Legal principles established

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  • The remedy to a plea of sub judice is not to strike out a suit but either to have it stayed or consolidated

Court orders

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  1. 1.The suit is consolidated with Nyeri ELC No. 27 of 2014 for purposes of hearing in terms of prayer (1) of the notice of motion dated 27th May, 2014
  2. 2.Costs of the application shall be costs in cause

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 11 Rules 1 and 3

Cases cited (2)

  • Thiba Min Hydro Co. Ltd vs. Joseph Karu Ndwigwa
    (2013) eKLR
  • Republic v. The Chairman District Alcoholic Drinks Regulation Committee & 5 others
    Malindi HC Misc. Application No.4 of 2013 (JR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Act and Civil Procedure Rules (Order 11)

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, "John Mwangi Wamai v Teresa Gathiri Mwema [2015] KEELC 249 (KLR)", Case Analysis (2015). Nyeri ELC (case number not stated on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/249/eng@2015-05-11

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