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ELCDismissedNotice of Motion dated 20th November 2018 (Embu)· [2020] KEELC 3707 (KLR)

Republic v Ngondi Njeru & 2 others Ex Parte Daudi Ngari Njiru; Ambrose Kithaka Njiru (Applicant) [2020] KEELC 3707 (KLR)

Environment and Land Court
16 January 2020
YAY.M. Angima
1,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court refused to combine four land cases, ruling that shared land or parties alone is not enough to justify consolidation.

What this practically means

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Executive summary

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By a notice of motion dated 20th November 2018 brought under Order 11 Rule 3(H) of the Civil Procedure Rules, the 1st Respondent sought consolidation of the instant suit (concerning Block No. 109 in Gichiche Adjudication Section) with Embu High Court Misc. Application No. 34 of 2009 (JR), Misc. Application No. 68 of 2010 and Embu ELC No. 336 of 2015, contending that the parties and subject matter were the same and that consolidation would avoid conflicting decisions. The ex parte Applicant opposed, arguing that the JR application had been concluded about ten years earlier and that the parties and issues in the various suits were not the same. The court directed the 1st Respondent to file a further affidavit exhibiting pleadings in the suits sought to be consolidated; he filed only skeleton pleadings, a chamber summons in one matter, and uncertified proceedings showing the JR application had been concluded on 24th May 2010. The court applied the principles in RMG v NG & Another and Nyati Security Guards & Services Ltd v Municipal Council of Mombasa, holding that the burden lay on the 1st Respondent to demonstrate common questions of law or fact or that the reliefs arose out of the same transaction. Finding he had provided only scanty material, the court held that commonality of the suit block or overlapping parties, without more, could not justify consolidation. The motion was dismissed with costs to the ex-parte Applicant.

Key legal issues

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01

Whether consolidation of the suit with three other proceedings was justified

Holding

The application was dismissed because the 1st Respondent failed to discharge the burden of demonstrating common issues of law or fact or commonality of transactions.

Reasoning

The court applied the principles in RMG v NG and Nyati Security Guards. The 1st Respondent bore the responsibility of demonstrating common questions of law or fact. Despite being directed to exhibit pleadings from all the suits, he provided only scanty material - no pleadings for Misc. Application No. 34 of 2009 and only a chamber summons for Misc. Application No. 68 of 2010. The court could not properly assess the matters in dispute, and sameness of the suit block or overlapping parties without more could not justify consolidation.

p. 2

Legal principles established

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  • Consolidation will only be ordered where common questions of law or fact arise of such importance as to make it desirable that the whole matter be disposed of at the same time
  • The burden lies on the applicant for consolidation to demonstrate common questions of law or fact or that the reliefs arise out of the same transaction; overlapping parties or subject land alone is insufficient

Court orders

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  1. 1.The 1st Respondent's notice of motion dated 20th November 2018 is dismissed with costs to the ex-parte Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 11 Rule 3(H)
  • Civil Procedure RulesOrder 53

Cases cited (2)

  • RMG Vs NG & Another
    [2013] eKLR
  • Nyati Security Guards & Services Ltd Vs Municipal Council of Mombasa
    [2004] eKLR
Jurisdiction invoked
Order 11 Rule 3(H) 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, "Republic v Ngondi Njeru & 2 others Ex Parte Daudi Ngari Njiru; Ambrose Kithaka Njiru (Applicant) [2020] KEELC 3707 (KLR)", Case Analysis (2020). Notice of Motion dated 20th November 2018 (Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3707/eng@2020-01-16

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