Dororthy Seyanoi Moschion v Charles Kimeria Mwangi [2020] KEELC 263 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the criteria for consolidation of suits were met
The criteria were met: common plaintiff, common mother title, common questions of law and fact, commonality of witnesses and reliefs, and rights to relief arising out of the same series of transactions
The court examined the pleadings in the ten suits and found the plaintiff was the same in all of them; each alleged fraudulent disposal of subdivisions out of a common mother title through the connivance of common persons; the reliefs were by and large the same; there were common questions of law and fact and likely commonality of witnesses. The only difference was the impugned subdivision title numbers. The jurisdiction to consolidate rested on Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 11 rule 3(1)(h) of the Civil Procedure Rules.
Whether ELC No 352 of 2018 could be consolidated
No consolidation order could issue in respect of that suit because the defendant died in 2019 and no substitution has occurred
Counsel for the defendant in ELC No 352 of 2018 informed the court that her client died in 2019 and the estate had not conducted succession. The court held it was not clear if the suit against the deceased defendant was still alive, and that absent substitution no proceedings could be conducted against a deceased defendant. It therefore excluded that suit from the consolidation order but directed that the judge assigned the consolidated causes also handle it for appropriate directions.
Legal principles established
#- Consolidation is granted where suits involve common questions of law or fact, arise out of the same transaction or series of transactions, or where it is otherwise desirable, its purpose being to save costs, time and effort
- Consolidation is meant to facilitate efficient and expeditious disposal of disputes and must not confer undue advantage on the party seeking it nor disadvantage the party opposing it
- No proceedings can be conducted in relation to a deceased defendant in the absence of substitution
Court orders
#- 1.No consolidation order to issue in relation to Nairobi ELC No 352 of 2018 at this point because the defendant therein is said to have died and there has been no substitution
- 2.All the suits listed in prayer 1 of the amended notice of motion dated 3/2/2020, save for ELC No 352 of 2018, are consolidated
- 3.The nine consolidated suits, together with Nairobi ELC 352 of 2018, to be mentioned before the Presiding Judge of the Court for appointment of a judge to hear the consolidated causes
- 4.Parties to agree on the lead file for the purpose of taking proceedings, and in default the Presiding Judge at liberty to designate one out of the nine files as a lead file
- 5.The court assigned the consolidated causes to similarly be assigned Nairobi ELC No 352 of 2018 for appropriate directions upon ascertainment of the status of the suit against the deceased defendant
- 6.Parties shall bear their respective costs of the application
- Jurisdiction invoked
- Article 159 of the Constitution as read with Sections 1A, 1B and 3A of the Civil Procedure Act and Order 11 rule 3(1)(h) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dororthy Seyanoi Moschion v Charles Kimeria Mwangi [2020] KEELC 263 (KLR)", Case Analysis (2020). ELC No 350 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/263/eng@2020-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.