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ELCDismissedNotice of motion dated 24th January 2012· [2017] KEELC 3619 (KLR)

Peter Okoth Omeno v Ambrose Ochido Andajo & 2 others [2017] KEELC 3619 (KLR)

Environment and Land Court
8 February 2017
SKS.M. Kibunja
506 words in judgment
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The bottom line

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A Kenyan court refused to combine two related land cases because the older case was already partly heard, and combining them would have forced everything to start over.

What this practically means

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Executive summary

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By notice of motion dated 24th January 2012, Peter Okoth Omeno, the plaintiff, sought consolidation of the current suit (filed 2011) with Kisumu H.C.C. No.104 of 2004 (O.S.) for hearing and determination. The application was supported by his affidavit sworn on 25th January 2012 and opposed by the 2nd Defendant, Benedict Odhiambo Oketch, through grounds of opposition dated 29th January 2012, and by the 1st Defendant, Ambrose Ochido Andajo, through a replying affidavit sworn on 30th January 2012. Written submissions were filed by both sides. The court framed four issues: whether the two suits involve the same parties and subject matter; whether consolidation would hasten determination; what orders to make; and costs. On the evidence, the court found that both suits were commenced by the same plaintiff; that the defendants in the 2004 suit (Ambrose Ochido Adanjo and Benedict Odhiambo Okech) appear as 1st and 2nd Defendants in the current suit, which adds Bondo Town Council as 3rd Defendant; that the 2004 suit is partly heard while hearing in the current suit has not commenced; and that the current suit was filed about seven years after the 2004 suit. The court held that fairness required the suits to be heard separately, since consolidation would require both to be heard de novo and would pull back the partly-heard 2004 suit. The notice of motion was dismissed with costs. S.M. Kibunja, Environment and Land Judge, delivered the ruling on 8th February 2017 at Kisumu.

Key legal issues

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Whether the two suits should be consolidated

Holding

Consolidation refused despite common plaintiff and substantially common parties, because the 2004 suit is partly heard and consolidation would set both suits back.

Reasoning

The court found both suits were commenced by the same plaintiff, with largely overlapping defendants, the 2004 suit partly heard and the 2011 suit not yet heard. Weighing the overlap against procedural prejudice, the court held fairness favoured separate hearings so the partly-heard 2004 suit would not be pulled back, and dismissed the motion with costs.

p. 2

Legal principles established

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  • Consolidation is inappropriate where one suit is already partly heard, as consolidation would require the suits to be heard de novo and would delay the more advanced suit.

Court orders

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  1. 1.The notice of motion dated 24th January 2012 is dismissed with costs.
Jurisdiction invoked
Inherent powers of the High Court (Environment and Land Court) on a notice of motion; no specific provision cited

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, "Peter Okoth Omeno v Ambrose Ochido Andajo & 2 others [2017] KEELC 3619 (KLR)", Case Analysis (2017). Notice of motion dated 24th January 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3619/eng@2017-02-08

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