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ELCDismissedNotice of Motion dated 17th July 2014 (ELC suit, Nairobi)· [2016] KEELC 1286 (KLR)

Martin Walong Madiwa v Vincent Odhiambo Kamenya [2016] KEELC 1286 (KLR)

Environment and Land Court
28 October 2016
MGMARY M. GITUMBI
782 words in judgment
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The bottom line

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A Kenyan court refused to combine two land disputes because they involved different parties, different properties, and no shared legal or factual questions.

What this practically means

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Executive summary

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The court, Environment and Land Court, Nairobi (Mary M. Gitumbi, J), ruled on the Notice of Motion dated 17th July 2014 in which the Plaintiff, Martin Walong Madiwa, sought consolidation of his suit against the Defendant, Vincent Odhiambo Kamenya, with ELC No. 366 of 2011. The Plaintiff's suit sought to restrain the Defendant from interfering with plot number 008 Dandora off Kangundo Road (originally Plot No. 476). The Plaintiff argued that ELC No. 366 of 2011, brought by members of Dandora Off Kangundo Road Self Help Group against its office bearers concerning L.R. Nos. 18271, 18272, 18276 and 18277, involved the same questions of fact and law and would assist in determining his suit. The Defendant opposed, stating he had never been a member of the group and that the other suit concerned internal management and election disputes in which he was not a party. The court applied the Court of Appeal's test in David Ojwang' Okebe v South Nyanza Sugar Company, that consolidation serves to save costs and time and requires common questions of law or fact or the same transaction. It found: (1) the parties in the two suits differ and the Defendant was rightly not shown to be a group member; (2) the suit properties differ, with no clarity on whether the plot here falls within the properties in the other suit; and (3) this suit is an action to remove a trespasser while the other concerns ownership disputes among members and officials. The two suits therefore lack common questions of fact and law. The application was dismissed with costs in the cause.

Key legal issues

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Whether the applicant's suit and ELC No. 366 of 2011 should be consolidated

Holding

The suits cannot be consolidated because the parties, the suit properties and the causes of action are different, so there are no common questions of fact or law

Reasoning

The court applied the Court of Appeal's statement of the object of consolidation in the Okebe case: to save costs and time and avoid multiplicity of proceedings where common questions of law or fact exist. It then tested the two suits: the defendant is not a party to ELC No. 366 of 2011 and not a member of the self help group; the suit property here (plot 008) differs from the L.R. Nos. in the other suit; and this suit is for removal of a trespasser while the other concerns internal ownership disputes among group members and officials. Absent commonality, consolidation was refused and the motion dismissed with costs in the cause.

p. 3

Legal principles established

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  • Consolidation is warranted where there are common questions of law or fact, the right to relief arises from the same transaction, or it is otherwise desirable to avoid multiplicity of proceedings

Court orders

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  1. 1.The Application for consolidation is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Cases cited (1)

  • David Ojwang' Okebe & 11 Others v South Nyanza Sugar Company Limited & 2 Others
    CA Kisumu Civil Appeal (Appl) No. 139 of 2008 (2009) eKLR
Jurisdiction invoked
Inherent powers of the court to order consolidation of suits (civil procedure; application under the grounds on the face of the Notice of Motion dated 17th July 2014)

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, "Martin Walong Madiwa v Vincent Odhiambo Kamenya [2016] KEELC 1286 (KLR)", Case Analysis (2016). Notice of Motion dated 17th July 2014 (ELC suit, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1286/eng@2016-10-28

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