Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedKitale ELC No. 52 of 2011· [2019] KEELC 2451 (KLR)

Abdul Muthee Mulama & another v Eglyn Chepchirchir Choge & 3 others [2019] KEELC 2451 (KLR)

Environment and Land Court
8 July 2019
MNMwangi Njoroge
1,053 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cannot consolidate a case with a suit filed elsewhere; transfer must be sought first in the court where the other suit is pending.

What this practically means

#

Executive summary

#
The 1st and 4th defendants in Kitale ELC No. 52 of 2011 (Abdul Muthee Mulama & Another v Eglyne Choge & 3 Others) moved the court by Notice of Motion dated 8/5/2019 under Order 3 Rule 5, Order 11 Rule 3(h) and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, seeking consolidation of the Kitale suit with Eldoret ELC No. 306 of 2016 (Eglyne Choge & 3 Others v Sirikwa Co-operative Society & 3 Others) for joint trial and disposal, plus directions and costs in the cause. They argued the suits involve the same parcels of land (LR No. 8915 in Pembeni Farm, Uasin Gishu and LR No. 2187 in Trans-Nzoia), overlapping parties, similar questions of law and fact, common succession proceedings, and triangularly adverse claims between the estate, Pembeni squatters and Sirikwa Mumbai Multipurpose Co-operative Limited. The application was unopposed and no submissions were filed. The court held that Order 3 Rule 5 applies only at commencement of a suit and not to consolidation of existing suits; that Sections 17 and 18 CPA confer no power on the court to withdraw a suit pending before another court of parallel jurisdiction and transfer it to itself; and that any transfer application must first be made in the Eldoret court, failing which the consolidation application is premature. The application was found incompetent and dismissed with costs to the respondents.

Key legal issues

#
01

Whether two suits in different stations of parallel jurisdiction can be consolidated where one has not been transferred

Holding

No; consolidation is premature and incompetent where the suit sought to be consolidated remains pending in another court

Reasoning

The applicants invoked Order 3 Rule 5 CPC, but that provision governs uniting causes of action at commencement of a suit, not consolidation of existing suits. Sections 17 and 18 CPA on transfer confer no power on this court to withdraw a suit filed in another court of parallel jurisdiction and transfer it to itself. Transfer must first be sought and obtained in the Eldoret court; intervening otherwise risks administrative disorganization at the filing station.

p. 2

Legal principles established

#
  • Order 3 Rule 5 CPC applies at commencement of a suit and does not govern consolidation of suits already filed
  • A court cannot withdraw a suit filed before another court of parallel jurisdiction and transfer it to itself under Sections 17 and 18 of the Civil Procedure Act
  • Application for transfer of a suit should be made to the court before which the suit is filed before consolidation is sought

Court orders

#
  1. 1.The Notice of Motion dated 8/5/2019 is dismissed with costs to the respondents

Authorities

#

Legislation

  • Civil Procedure RulesOrder 3 Rule 5
  • Civil Procedure RulesOrder 11 Rule 3(h)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure ActSections 17 and 18
Jurisdiction invoked
Order 3 Rule 5, Order 11 Rule 3(h) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdul Muthee Mulama & another v Eglyn Chepchirchir Choge & 3 others [2019] KEELC 2451 (KLR)", Case Analysis (2019). Kitale ELC No. 52 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2451/eng@2019-07-08

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