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ELCDismissedELC Case No. 268 of 2011 (formerly Kitui HCCC No. 268 of 2011)· [2019] KEELC 3258 (KLR)

Dater Enterprises Co.Ltd v Agnes Mumbanu Kinako [2019] KEELC 3258 (KLR)

Environment and Land Court
24 May 2019
OAO.A. Angote
1,372 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 refused to combine two land cases because the defendant waited too long — raising it only after the plaintiff finished presenting evidence.

What this practically means

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Executive summary

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This was a ruling on the Defendant's Notice of Motion dated 22nd June 2018 seeking consolidation of ELC Case No. 268 of 2011 (a 2011 suit in which the Plaintiff, claiming to be the registered proprietor of parcel Nzambani/Maluma/838, sought a permanent injunction against trespass and general damages) with Machakos ELC Case No. 99 of 2015, which also concerned the same parcel. The Defendant argued that both suits had the same subject matter and that consolidation would serve the interests of justice, save costs and avoid duplicity of causes of action. The Plaintiff opposed, contending that the Defendant had treated the two matters as distinct since 2015, had participated in pre-trial directions and in the Plaintiff's hearing without disclosing the second suit, and had raised consolidation only when the matter was fixed for defence hearing, after the Plaintiff had closed its case. The court, O.A. Angote J, restated that consolidation serves the overriding objective of the Civil Procedure Act and cited Koreen United Church & 3 others vs. Seng Ha Sung (2014) eKLR. It found that the Defendant had been given leave to file an Amended Defence and Counter-claim but never explained why she had not incorporated the allegations in ELC No. 99 of 2015 into those pleadings, and that no good reason was offered for waiting until the Plaintiff closed its case. The court held the application was an afterthought, that allowing it would require the old suit to begin de novo, prejudicing the Plaintiff, and would amount to an abuse of the court process. The application was dismissed with costs on 24th May 2019.

Key legal issues

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01

Timing of an application for consolidation of suits

Holding

A party who knows of a related suit with the same subject matter must seek consolidation at pre-trial or incorporate the allegations into its pleadings; a consolidation application filed after the opponent has closed its case is an afterthought that will be refused

Reasoning

The Defendant knew of ELC No. 99 of 2015 throughout the proceedings, participated in pre-trial directions and the Plaintiff's hearing without disclosing the second suit, and had leave to file an Amended Defence and Counter-claim into which she could have incorporated the allegations. Raising consolidation only when the matter was fixed for defence hearing would force the 2011 suit to begin de novo, prejudicing the Plaintiff. Such timing defeats the overriding objective and constitutes an abuse of process.

p. 2
02

Purpose of consolidation of suits

Holding

Consolidation is intended to achieve the overriding objective of the Civil Procedure Act - expeditious and proportional disposal - by saving costs, time and effort

Reasoning

The court restated the purpose of consolidation, citing Koreen United Church & 3 others vs. Seng Ha Sung (2014) eKLR, and held that an application that would cause re-opening of a partly heard suit and prejudice does not serve that purpose.

p. 2

Legal principles established

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  • Consolidation of suits serves the overriding objective of the Civil Procedure Act - expeditious and proportional disposal of civil disputes - saving costs, time and effort by treating several actions as one

Court orders

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  1. 1.The Defendant's Application dated 22nd June 2018 for consolidation of this suit with Machakos ELC Case No. 99 of 2015 is dismissed
  2. 2.Costs of the Application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActOverriding objective
  • Civil Procedure Rulesnot specified

Cases cited (1)

  • Koreen United Church & 3 others vs. Seng Ha Sung
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to parcel of land known as Nzambani/Maluma/838; application brought under the Civil Procedure Act and Civil Procedure Rules (overriding objective)

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, "Dater Enterprises Co.Ltd v Agnes Mumbanu Kinako [2019] KEELC 3258 (KLR)", Case Analysis (2019). ELC Case No. 268 of 2011 (formerly Kitui HCCC No. 268 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3258/eng@2019-05-24

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