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ELCAllowedMombasa ELC No. 14 of 2013· [2017] KEELC 256 (KLR)

Bernard Onkundi Otundo & 5 others v Creek Marketing and Development Limited [2017] KEELC 256 (KLR)

Environment and Land Court
16 November 2017
LKL. KOMINGOI
1,758 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 was a Notice of Motion dated 31st May 2017 by the Defendant, Creek Marketing and Development Limited, seeking consolidation of Mombasa ELC No. 14 of 2013 with Mombasa HCCC No. 609 of 2011, both involving the same parties and concerning Plot No. Kilifi/Mtwapa/403, with the ELC suit designated the lead file. The application was supported by the affidavit of Stephen Blanchet, a Director of the Defendant, and opposed by the 1st Plaintiff, Bernard Onkundi Otundo, in a replying affidavit. The Defendant argued that the two suits arose from the same transaction and that consolidation would expedite resolution, relying on Nyati Security Guards and other authorities. The Plaintiffs objected that the HCCC suit was fraudulent and filed without their instructions, and that consolidation would taint their suit and occasion prejudice, citing Law Society of Kenya v Centre for Human Rights and Democracy and other cases. The court compared the prayers in the two plaints and found them substantively the same, the only difference being a counterclaim in the ELC suit. It noted the 1st Plaintiff's admission that an earlier judicial finding was not appealed against, reviewed or set aside, and held that the question of whether the Plaintiffs instructed anyone to file HCCC No. 609 of 2011 would emerge at trial. Applying the Nyati Security Guards principles and the overriding objective of the Civil Procedure Act, the court found no demonstrated prejudice and allowed consolidation, designated the ELC suit the lead file, ordered costs in the cause, and set the matter for mention on 25th January 2018 for pretrial directions.

Key legal issues

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01

Whether the two suits ought to be consolidated

Holding

Consolidation allowed; the suits are between the same parties, concern the same subject matter (Plot No. Kilifi/Mtwapa/403) and arise out of the same transaction, and no prejudice was demonstrated

Reasoning

The court compared the prayers in the two plaints and found them substantively identical despite different wording, with the only difference being a counterclaim in ELC No. 14 of 2013. The 1st Plaintiff's objection that HCCC No. 609 of 2011 was a fraudulent suit filed without instructions was held to be a matter to be determined at the hearing. The court was guided by the Nyati Security Guards principles and the overriding objective of expeditious and proportionate disposal of civil disputes, holding that consolidation allows the issues to be dealt with once and for all.

p. 3

Legal principles established

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  • Consolidation is proper where suits are between the same parties, over the same subject matter and arising out of the same transaction, and no prejudice is demonstrated

Court orders

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  1. 1.Consolidation of this suit with Mombasa HCCC No. 609 of 2011 for purposes of hearing and determination of the issues arising out of the two suits
  2. 2.Mombasa ELC No. 14 of 2013 to be the lead file for purposes of hearing and recording of proceedings
  3. 3.Costs of the application to be in the cause
  4. 4.Mention on 25th January 2018 for pretrial directions

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 11 Rule 3(1)(h)
  • Civil Procedure Rules 2010Order 11 Rule 3(2)(f), g, j, m
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Act Chapter 21 Laws of KenyaSection 1A
  • Civil Procedure Act Chapter 21 Laws of KenyaSection 1B
  • Civil Procedure Act Chapter 21 Laws of KenyaSection 3A
  • Civil Procedure Act Chapter 21 Laws of KenyaSection 63(e)

Cases cited (7)

  • Nyati Security Guards And Services Limited v Municipal Council of Mombasa
    (2014) eKLR
  • Chimweli Janga Mangale And 3 Others v Hamisi Mohammed Mwawazaa And 15 Others
    (2016) eKLR
  • Kenya Anticorruption Commission v Wilson Gachanja And 2 Others
    (2014) eKLR
  • Joseph Okoyo v Edwin Dickson Wasuma
    (2014) eKLR
  • Benson Mutahi v Raphael Gichovi Munene Kabutu And 4 Others
    ELC No. 258 of 2013 (Kerugoya)
  • Law Society of Kenya v Centre for Human Rights And Democracy
    Supreme Court of Kenya Petition No 4 of 2013
  • Cecilia Kiajimbae And Another v Evangeline Tirindi Josphat And Another
    HC Succession Cause No. 152 of 2008
Jurisdiction invoked
Order 11 Rule 3(1)(h), Rule 3(2)(f), g, j, m and Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A and 63(e) 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, "Bernard Onkundi Otundo & 5 others v Creek Marketing and Development Limited [2017] KEELC 256 (KLR)", Case Analysis (2017). Mombasa ELC No. 14 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/256/eng@2017-11-16

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