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ELCPartially AllowedELC No. 183 of 2015· [2017] KEELC 2232 (KLR)

New Kenya Cooperative Creamaries Ltd v Hassan Ali Mboga And 34 Otheres [2017] KEELC 2232 (KLR)

Environment and Land Court
13 July 2017
LKL. Komingoi
426 words in judgment
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The bottom line

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The Mombasa Environment and Land Court merged two related land disputes into one case, and the earlier-filed suit will be heard first.

What this practically means

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Executive summary

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This interlocutory ruling by the Environment and Land Court at Mombasa determines a Notice of Motion dated 19th January 2016 brought by New Kenya Cooperative Creameries Limited, the plaintiff in ELC No. 183 of 2015, under Sections 1A and 1B of the Civil Procedure Act and Order 1 Rule 1 of the Civil Procedure Rules. The plaintiff sought consolidation of its suit with ELC No. 329 of 2015 (OS) (Hassan Ali Mboga & 103 others v New Kenya Cooperative Creameries Limited), designation of its own file as the pilot file for taking evidence and writing judgment, and costs. The application was supported by an affidavit of Peter Kennedy Ombati, the Company Secretary and Chief Legal Manager, and opposed by a replying affidavit of Hassan Ali Mboga, the 1st defendant and 1st applicant in ELC 329 of 2015 (OS). The respondents did not object to consolidation but wanted ELC 329 of 2015 to be the pilot file. Komingoi J held that consolidation would advance the overriding objectives as the issues in the two files were the same, and allowed consolidation. However, the court declined to designate the plaintiff's file as the pilot file, instead designating ELC 329 of 2015 (OS) as the pilot file for taking evidence and writing judgment, with the issues in ELC 183 of 2015 to be treated as defence and counter-claim. Costs were ordered to abide the outcome of the main suits. The ruling was delivered at Mombasa on 13th July 2017.

Key legal issues

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01

Whether consolidation was appropriate

Holding

Consolidation was granted as the issues in the two suits are the same and it advances the overriding objective

Reasoning

The court considered the Notice of Motion, the supporting and replying affidavits and oral submissions of counsel. The respondents did not object to consolidation. Since the issues in the two files were the same, consolidation would serve the overriding objectives under Sections 1A and 1B of the Civil Procedure Act and the interests of justice.

p. 1
02

Which file should be the pilot file

Holding

ELC 329 of 2015 (OS), the earlier originative suit, was designated the pilot file for taking evidence and writing judgment

Reasoning

Although the plaintiff's application sought designation of its own suit as the pilot file, the respondents objected and proposed ELC 329 of 2015 (OS). The court agreed that it would serve the interests of justice for ELC 329 of 2015 (OS) to be the pilot file, treating the issues in ELC 183 of 2015 as defence and counter-claim in that suit.

p. 1

Legal principles established

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  • Consolidation of suits with identical issues advances the overriding objectives of the Civil Procedure Act

Court orders

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  1. 1.The suit in ELC 183 of 2015 be consolidated, heard and determined together with ELC 329 of 2015 (OS)
  2. 2.ELC 329 of 2015 (OS) be designated as the pilot file for purposes of taking evidence and writing judgment
  3. 3.Costs to abide the outcome of the main suits

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 1 Rule 1
Jurisdiction invoked
Sections 1A and 1B of the Civil Procedure Act and Order 1 Rule 1 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, "New Kenya Cooperative Creamaries Ltd v Hassan Ali Mboga And 34 Otheres [2017] KEELC 2232 (KLR)", Case Analysis (2017). ELC No. 183 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2232/eng@2017-07-13

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