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ELCDismissedELC No. 226 of 2015· [2017] KEELC 17 (KLR)

Faiza Abdallah Salid Al Army & another v Moses Mbugua Mehta [2017] KEELC 17 (KLR)

Environment and Land Court
31 October 2017
AOA. OMOLLO
1,326 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 Court at Mombasa (A. Omollo, J) determined a notice of motion dated 22nd December 2016 by the defendant in ELC No. 226 of 2015, brought under sections 1A, 1B, 3A and 17 of the Civil Procedure Act. The applicant sought consolidation of the Mombasa suit with Nairobi ELC No. 5 of 2014, and the transfer of the Nairobi suit to Mombasa for that purpose, contending that the suit property (LR No. 144/4 Section I/MN Shanzu) is within the Mombasa court's jurisdiction and that consolidation was needed to avoid conflicting decisions. The plaintiffs in the Mombasa suit opposed, arguing they were strangers to the Nairobi suit and that the Mombasa court lacked jurisdiction to transfer it; the defendant in the Nairobi suit (represented through its legal manager Tom Okoth Ogola) also opposed, noting the pleadings and prayers differed and that KCB Bank, having exercised its statutory power of sale, was not party to the Mombasa proceedings. The court found the subject matter of the two suits to be the same - the plaintiffs in Mombasa sought vacant possession on the strength of title acquired at a public auction conducted in the Nairobi suit - but held that consolidation was inappropriate because the reliefs differed (one suit challenged the legality of the sale, the other sought eviction) and the decisions could not conflict. The proper remedy would have been an application to stay the Mombasa suit pending the Nairobi outcome. The court also held it lacked power to transfer the Nairobi suit, since only the judge seized of that matter could do so, and the applicant had admitted in his own Nairobi plaint that the cause of action arose in Nairobi. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the two suits could be consolidated

Holding

Consolidation refused; although the subject matter is the same, the reliefs differ and the outcomes cannot conflict, so consolidation would complicate rather than aid determination.

Reasoning

The court found as a fact that the subject matter in both suits is the same, the Mombasa plaintiffs claiming vacant possession through title acquired at an auction conducted by the defendants in the Nairobi suit. However, the Nairobi suit challenges the legality of the sale while the Mombasa suit seeks eviction founded on that sale. Since the reliefs are not similar and cannot produce conflicting decisions, consolidation was unnecessary and would complicate the proceedings. The proper remedy was a stay application.

p. 2
02

Whether the Mombasa court could transfer Nairobi ELC No. 5 of 2014 to Mombasa

Holding

No; the court lacks power to transfer a suit pending before another judge, and the applicant himself admitted the cause of action arose in Nairobi.

Reasoning

The applicant filed the Nairobi suit himself and in the plaint admitted that the defendants' headquarters were in Nairobi and that he transacted business within Nairobi, so venue was proper under section 12 of the Civil Procedure Act. Further, only the judge seized of the Nairobi matter could order its transfer. The applicant also did not seek the alternative of transferring the Mombasa file to Nairobi, and the court would not grant what was not prayed for.

p. 2

Legal principles established

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  • An order for transfer of a suit from one registry to another can only be made by the court seized of that suit.
  • Consolidation of suits is inappropriate where the reliefs sought are distinct and cannot produce conflicting decisions; a stay of one suit pending the other is the proper procedure.

Court orders

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  1. 1.The application dated 22nd December 2016 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 17
  • Civil Procedure Actsection 12
Jurisdiction invoked
Sections 1A, 1B, 3A and 17 of the Civil Procedure Act

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, "Faiza Abdallah Salid Al Army & another v Moses Mbugua Mehta [2017] KEELC 17 (KLR)", Case Analysis (2017). ELC No. 226 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/17/eng@2017-10-31

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