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ELCPartially AllowedEmbu H.C.C. No. 189 of 2010 (as transferred to the Environment and Land Court)· [2017] KEELC 554 (KLR)

Francis Wainaina Kariuki v Samuel Kiongo Ndegwa & another [2017] KEELC 554 (KLR)

Environment and Land Court
8 December 2017
BOB.N. Olao
1,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court merged two lawsuits over the same land parcel into one case to avoid conflicting judgments and wasted costs.

What this practically means

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Executive summary

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By a Chamber Summons application dated 4th November 2016, the defendant Samuel Kiongo Ndegwa sought to enjoin the National Bank of Kenya as a defendant in this suit or, in the alternative, to consolidate the suit with Nyeri H.C.C.C No. 161 of 2009 (by then transferred and renamed Kerugoya ELC Case No. 150 of 2014), with leave to amend his pleadings. The defendant argued that the bank had allegedly and illegally sold land parcel Mwerua/Kanyokora/420 - the subject of this suit - to the plaintiff, and that he had already sued the plaintiff and the bank in the companion suit; failing to combine the two actions would risk inconsistent judgments. The plaintiff opposed through grounds of opposition describing the application as incompetent and an abuse of process. Only the defendant filed submissions. The court called for the companion file and confirmed that it involved the same parcel, with the parties mirrored across the two suits, and that neither suit had commenced trial. Relying on Stumberg v Potgeiter, Prem Lala Nahata v Chandi Prasad Sikaria and the Law Society of Kenya decision of the Supreme Court, the court held that consolidation saves costs, time and effort and promotes the efficient, expeditious disposal of disputes under the overriding objective of the Civil Procedure Act. Since the bank was already a defendant in the companion suit, joinder was unnecessary. The court ordered consolidation of the two suits, designated this case the lead file, fixed further directions for 14th December 2017, and directed that costs be in the cause.

Key legal issues

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01

Whether two pending suits involving the same land parcel should be consolidated

Holding

The court found consolidation proper because both suits concern land parcel Mwerua/Kanyokora/420 and neither has commenced trial

Reasoning

The court called for and confirmed that Kerugoya ELC Case No. 150 of 2014 involves the same subject matter, with the parties here mirrored across the two files. Relying on Stumberg v Potgeiter, Prem Lala Nahata v Chandi Prasad Sikaria and the Law Society of Kenya Supreme Court decision, it held consolidation promotes efficient, expeditious and proportionate resolution consistent with the overriding objective of the Civil Procedure Act, and avoided the risk of two conflicting judgments causing embarrassment.

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02

Whether consolidation should take the form of joinder or consolidation

Holding

Joinder was unnecessary because the intended interested party is already a defendant in the companion suit; consolidation was the appropriate remedy

Reasoning

The defendant had sought either joinder of the bank as a defendant or consolidation with Nyeri H.C.C.C No. 161 of 2009. Upon verifying the parties and subject matter of the companion suit, the court concluded that enjoining the bank again was redundant since it already featured as a defendant there, making consolidation the only prudent option. This file was designated the lead file for proceedings.

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Legal principles established

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  • Consolidation of suits is appropriate where there are common questions of law or fact or where the claims arise out of the same transaction, to save costs, time and effort and enable efficient disposal
  • Consolidation serves efficient and expeditious disposal of disputes and must not advantage the party seeking it or disadvantage the party opposing it

Court orders

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  1. 1.This case and KERUGOYA ELC CASE No. 150 of 2014 are hereby consolidated
  2. 2.This case shall be the lead file for purposes of proceedings
  3. 3.Parties in both cases to appear before this Court on 14th December 2017 for further directions
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder II Rule 3(1)(h)
  • Civil Procedure Actoverriding objective

Cases cited (4)

  • STUMBERG VS POTGEITER
    1970 E.A 323
  • BRIJ KISHORE VS BIR SINGH & OTHERS
    L.R 5922 of 2013
  • PREM LALA NAHATA & ANOTHER VS CHANDI PRASAD SIKARIA
    2007 2 SUPREME COURT CASES 551
  • LAW SOCIETY OF KENYA VS THE CENTER FOR HUMAN RIGHTS AND DEMOCRACY
    Petition No. 14 of 2013
Jurisdiction invoked
Inherent case-management powers under the Civil Procedure Act and Order II Rule 3(1)(h) of the Civil Procedure Rules

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, "Francis Wainaina Kariuki v Samuel Kiongo Ndegwa & another [2017] KEELC 554 (KLR)", Case Analysis (2017). Embu H.C.C. No. 189 of 2010 (as transferred to the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/554/eng@2017-12-08

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