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ELCDismissedELC No. 386 of 2017· [2019] KEELC 4090 (KLR)

Jonathan Kaposhi v Colleta Mbatha Maweu & 4 others [2019] KEELC 4090 (KLR)

Environment and Land Court
18 March 2018
COChristine Ochieng
1,603 words in judgment
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The bottom line

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The Kajiado Environment and Land Court refused to merge five land disputes over the same parcel, because consolidation would delay the cases and potentially prejudice some parties.

What this practically means

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Executive summary

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The 3rd and 4th Defendants moved the Court by Notice of Motion dated 20th July 2018, under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 11 Rule 3(1)(h) and Order 51 of the Civil Procedure Rules, seeking consolidation of five Kajiado ELC suits (Nos. 386, 257, 85, 91 and 184 of 2017) to proceed as one action under ELC No. 386 of 2017. The Applicants contended that all the suits concern land parcel Kajiado/Kaputiei Central/839, registered in the name of Kaposhi Ole Njoroge Nakumama, who in February 2012 secretly subdivided it into parcels 2346, 2347 and 2348 and fraudulently transferred them to family members, thereby defeating the beneficial ownership rights of purchasers who had bought portions, taken possession and occupied the land for years, particularly in anticipation of Standard Gauge Railway compensation. The plaintiff Jonathan Kaposhi opposed, arguing that the suits involve different parties, transactions, terms and stages of prosecution, that ELC No. 184 of 2017 is an adverse possession originating summons pending ruling, and that consolidation would delay the suits and escalate costs. Framing the sole issue as whether the suits should be consolidated, the court applied the criteria in Benson G. Mutahi v Raphael Gichovi Munene Kabutu and the Supreme Court's dictum in Law Society of Kenya v Centre for Human Rights and Democracy. Holding that the suits seek varied reliefs and are at different stages, the court found consolidation would delay rather than expedite the matters and might prejudice a party, and directed that the suits proceed separately but simultaneously. The application was found unmerited and disallowed, with costs in the cause.

Key legal issues

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Whether the five ELC suits concerning land parcel Kajiado/Kaputiei Central/839 and its subdivisions should be consolidated

Holding

Consolidation was refused; the suits should proceed separately but simultaneously

Reasoning

The court applied the consolidation criteria from Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others and the Supreme Court's dictum in Law Society of Kenya v Centre for Human Rights and Democracy. Although the suits revolve around the same parcel, they seek varied reliefs, involve many parties and advocates, and are at different stages of prosecution. Consolidation would therefore delay the matters rather than expedite them, potentially disadvantaging or prejudicing a party.

p. 2

Legal principles established

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  • Consolidation is meant to facilitate efficient and expeditious disposal of disputes and must not confer undue advantage on the party seeking it or disadvantage the party opposing it
  • Criteria for consolidation: common questions of law or fact; rights or reliefs arising out of the same transaction; and absence of prejudice or undue advantage

Court orders

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  1. 1.The 3rd and 4th Defendants' Notice of Motion dated 20th July 2018 seeking consolidation of the five suits is disallowed.
  2. 2.Costs will be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 11 Rule 3(1)(h)
  • Civil Procedure RulesOrder 51

Cases cited (2)

  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    [2014] eKLR
  • Law Society of Kenya vs The Centre for Human Rights and Democracy
    Supreme Court of Kenya, Petition No. 14 of 2013
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 11 Rule 3(1)(h) and Order 51 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, "Jonathan Kaposhi v Colleta Mbatha Maweu & 4 others [2019] KEELC 4090 (KLR)", Case Analysis (2018). ELC No. 386 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4090/eng@2019-03-18

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