Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC 23 of 2019 (consolidated with ELC 395 of 2017)· [2020] KEELC 3332 (KLR)

Wambui Kihara Mburu v David Wahuga Kuboriga & another [2020] KEELC 3332 (KLR)

Environment and Land Court
27 February 2020
JKJ G Kemei
1,070 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

#

Kenya's Environment and Land Court consolidated two suits over the same Murang'a land parcel because identical parties and issues made separate hearings wasteful.

What this practically means

#

Executive summary

#
This was a ruling on an application dated 25 June 2019 in which the applicant sought consolidation of ELC No. 23 of 2019 and ELC No. 395 of 2017, both concerning land parcel LOC3/GITURU/223 before the Environment and Land Court at Murang'a. The applicant argued that the two suits shared the same subject matter, raised common questions of law and fact, and that consolidation would facilitate efficient disposal without prejudice. The plaintiff/respondent opposed, contending the application was made in bad faith to deny her access to justice; that the dispute between her and the 1st defendant had been settled by a consent order dated 20 February 2017 (awarding 1.5 acres in exchange for removal of a caution), which could not be executed because the applicant's caution remained on the register; and that ELC 395/17 had been stayed by a ruling of 31 October 2018 and no summons had been issued in it. The 1st respondent did not oppose. The court perused both files and found the same parties and subject matter in both suits, with the customary trust claim in ELC 395/17 and the caution-removal claim in ELC 23/19 being interdependent. Relying on Law Society of Kenya v Centre for Human Rights and Democracy, Stumberg v Potgeiter, and Prem Lala Nahata v Chandi Prasad Sikaria, and on Order 11 Rule 3(1)(h) of the Civil Procedure Rules and section 1A of the Civil Procedure Act, the court found the respondent's assertion that no summons had issued to be untrue, as she had filed a defence and counterclaim. Holding that no party would suffer prejudice, the court allowed consolidation, designated ELC 395/17 as the lead file, and directed the parties to appear for directions on 27 February 2020, with costs in the cause.

Key legal issues

#
01

Whether the two suits over LOC3/GITURU/223 qualify for consolidation

Holding

The application for consolidation was allowed; the subject matter and parties are the same and no prejudice was shown

Reasoning

The court perused both files and found that the subject matter in both suits is LOC3/GITURU/223 and the parties are the same individuals. The claims - customary trust in ELC 395/17 and removal of caution in ELC 23/19 - are interlinked, since the consent between the plaintiff and 1st defendant depends on removal of the caution by the applicant. Applying Order 11 Rule 3(1)(h) and the overriding objective in section 1A of the Civil Procedure Act, the court found no party would suffer prejudice.

p. 2
02

Whether the absence of summons in ELC 395/17 defeated consolidation

Holding

The contention was rejected because the respondent had filed a defence and counterclaim, showing proceedings were active

Reasoning

The respondent argued that consolidation was untenable because no summons had been issued in ELC 395/17. On perusal of the file the court found that the respondent had in fact filed her defence and counterclaim to the applicant's claim, so the assertion that summons had not been issued was untrue. This removed the principal factual objection to consolidation.

p. 2

Legal principles established

#
  • Consolidation is intended to facilitate efficient and expeditious disposal of disputes without conferring undue advantage on the party seeking it or disadvantage to the party opposing it
  • Consolidation should be ordered where there are common questions of law or fact of sufficient importance to render it desirable that the whole matters be disposed of at the same time

Court orders

#
  1. 1.ELC 23/19 and ELC 395/17 be and are hereby consolidated
  2. 2.The lead file shall be ELC 395/17
  3. 3.The parties to appear before the court for directions on the 27/2/2020 for further directions after consolidation
  4. 4.Costs shall be in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 11 Rule 3(1)(h)
  • Civil Procedure ActSection 1A

Cases cited (4)

  • Law Society of Kenya vs The Centre for Human Rights and Democracy
    Supreme Court Petition No. 14 of 2013
  • Stumberg and Another vs Potgeiter
    1970 E.A. 323
  • Brij Kishore vs Bir Singh & Others
    L.R 5922 of 2013
  • Prem Lala Nahata & Another vs Chandi Prasad Sikaria
    (2007) 2 Supreme Court Cases 551
Jurisdiction invoked
Order 11 Rule 3(1)(h) of the Civil Procedure Rules; section 1A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wambui Kihara Mburu v David Wahuga Kuboriga & another [2020] KEELC 3332 (KLR)", Case Analysis (2020). ELC 23 of 2019 (consolidated with ELC 395 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3332/eng@2020-02-27

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