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ELCPartially AllowedELC 377 of 2015 (Notice of Motion dated 1st March, 2016)· [2018] KEELC 3575 (KLR)

Moses Kirruti Lempaso & another v Obadiah K. Bunyi & 4 others [2018] KEELC 3575 (KLR)

Environment and Land Court
4 April 2018
2,052 words in judgment
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The bottom line

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The Environment and Land Court refused to combine five related land suits or disqualify an advocate for suspected conflict, but ordered the Kajiado Land Registrar to disclose all register entries.

What this practically means

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Executive summary

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The Plaintiffs in ELC 377 of 2015 moved the Environment and Land Court at Ngong by Notice of Motion dated 1st March 2016 seeking: (i) consolidation of ELC 377, 1088, 1089, 1090 and 1092 of 2015, all arising from subdivisions of land parcel KAJIADO/OLOOITIKOSHI/KITENGELA/1957; (ii) an order that George Muhoro trading as G.M. Muhoro Advocate cease acting for the Plaintiffs in the four related suits and for the 1st Defendant in ELC 377 of 2015, on the ground that his alleged proprietary claim rendered him a possible witness and conflicted; and (iii) an order compelling the 4th Defendant to make full disclosure of all entries in the Land Register at Kajiado in respect of the suit land. The application was supported by the affidavit of Grace Waithera Kirutti, who relied on a Tribunal judgment of 22nd February 2011 declaring the 1st Plaintiff the lawful owner and on a demand letter concerning the subdivided parcels. The 1st and 2nd Respondents opposed, the 2nd Respondent denying participation in the Tribunal proceedings and contending that consolidation would complicate and delay the suits. The court framed three issues and held that the suits, though related to subdivisions of one parcel, involved different plaintiffs, varied reliefs and distinct questions of law and fact arising from a series of transactions, so consolidation would prejudice the parties; each suit was to proceed separately. On the conflict-of-interest prayer, applying British American Investments v Njomaitha Investments, the court found mere suspicion insufficient and upheld the parties' constitutional right to counsel of choice. The court allowed only the disclosure prayer, declining prayers 3 and 4, with costs in the cause.

Key legal issues

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01

Consolidation of suits

Holding

Consolidation refused; each suit to proceed separately.

Reasoning

Applying Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others and Order 11 rule 3(1)(h), the court considered whether the same questions of law or fact arise, whether claims arise from the same transaction, and whether any party would be prejudiced. Although all suits relate to subdivisions of the same parcel, the suits have different plaintiffs, varied reliefs and distinct questions of law and fact arising from a series of transactions involving varied parties. Consolidation would occasion inconvenience and prejudice.

p. 2
02

Advocate ceasing to act for conflict of interest

Holding

Prayer declined for lack of sufficient evidence of conflict or prejudice.

Reasoning

Applying British American Investments Company (K) Limited v Njomaitha Investments Limited & Another, the court held that a party asserting conflict of interest must demonstrate it with sufficient evidence and show prejudice. The Plaintiffs alleged only that the advocate had a proprietary claim and could be a witness, which was denied. The court emphasized the constitutional right of parties to counsel of their choice and found mere suspicion insufficient grounds to remove counsel.

p. 3
03

Disclosure of land register entries

Holding

Allowed - Plaintiffs entitled to information held by the 4th Defendant.

Reasoning

The court found the Plaintiffs entitled to information held by the 4th Defendant regarding the suit land and allowed the prayer for full disclosure of all entries in the Land Register at Kajiado in respect of KAJIADO/OLOOITIKOSHI/KITENGELA/1957.

p. 3

Legal principles established

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  • Consolidation is meant to facilitate efficient, expeditious and fair disposal of disputes, not to confer undue advantage or occasion disadvantage.
  • A party alleging conflict of interest must provide sufficient evidence of the conflict and demonstrate prejudice; mere suspicion cannot stop an advocate from acting.

Court orders

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  1. 1.Prayers 3 and 4 of the Notice of Motion dated 1st March, 2016 (consolidation of suits and cessation of actings by G.M. Muhoro Advocate) declined.
  2. 2.Prayer no. 5 allowed - the 4th Defendant to make full disclosure of all the entries made in the Land Register at Kajiado in respect of KAJIADO/OLOOITIKOSHI/KITENGELA/1957.
  3. 3.Each suit to proceed separately on its own merit for hearing and final determination.
  4. 4.Costs in cause.

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 51 Rule 1; Order 11 rule 3(1)(h)
  • Environment and Land Court ActSections 13(1) and (2)(d)

Cases cited (3)

  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    [2014] eKLR
  • Law Society of Kenya v The Centre for Human Rights and Democracy
    Supreme Court of Kenya, Petition No. 14 of 2013
  • British American Investments Company (K) Limited v Njomaitha Investments Limited & Another
    (2014) eKLR
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules; Sections 13(1) and (2)(d) of the Environment and Land Court 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, "Moses Kirruti Lempaso & another v Obadiah K. Bunyi & 4 others [2018] KEELC 3575 (KLR)", Case Analysis (2018). ELC 377 of 2015 (Notice of Motion dated 1st March, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3575/eng@2018-04-04

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