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ELCAllowedELC Petition No. 2 of 2019 (with ELC Petition No. 1 of 2021 and ELC Petition No. 3 of 2020)· [2021] KEELC 479 (KLR)

Maccu Motors & 7 others v David Kirimi Mwithimbu & 4 others [2021] KEELC 479 (KLR)

Environment and Land Court
8 December 2021
3,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court merged three overlapping land disputes into one case so all parties avoid repeated evidence, conflicting judgments and extra costs.

What this practically means

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Executive summary

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By an oral application made on 8 November 2021, counsel for the petitioner in ELC Petition No. 2 of 2019 (David Kirimi Mwithimbu) sought the consolidation of Petition No. 2 of 2019, Petition No. 1 of 2021 (originally Meru CMCC No. 15 of 2019) and Petition No. 3 of 2020, all concerning Parcel No. Meru Central/Ruiri Rwarera/815 and adjoining parcels in the Ruiri Rwarera adjudication section. The petitioner argued a common denominator, largely overlapping parties, avoidance of duplicating evidence and of conflicting judgments. Several respondents opposed, citing lateness, differing modes of commencement and differing causes of action. Justice C.K. Nzili applied the principle that consolidation is warranted where there are common questions of law or fact, drawing on Stumberg v Potgieter, Ngumbao v Mwatate and the Supreme Court's decision in Law Society of Kenya v Centre for Human Rights & Democracy. Finding the three files raise substantially similar questions about the physical location of Parcel No. 815 versus its position on cadastral maps, the conduct of the District Land Adjudication and Settlement Officer, and overlapping parcels, the court allowed consolidation, designated Petition No. 2 of 2019 as the lead file and issued case-management directions including filing of paginated bundles, agreed lead witnesses and agreed documents, and discovery of adjudication records. The court also directed that the matters proceed by way of oral evidence, given claims for special damages and mesne profits, and dismissed the preliminary objection dated 27 April 2021 in Petition No. 3 of 2020 as raising no pure point of law, with no order as to costs. The matter was set for mention on 3 March 2022.

Key legal issues

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01

Whether the three matters should be consolidated

Holding

Consolidation was merited because the matters raise similar questions of fact and law concerning Parcel No. 815, the parcels adjoin or overlap, and the DLASO's evidence is common

Reasoning

The court found the three files raise similar or substantially similar questions of fact and law, all centring on Parcel No. 815 and the actions of the adjudication officer. The parcels adjoin or overlap, and hearing them together would be cost-effective, avoid conflicting judgments and make proper use of judicial resources under Article 159. The lateness of the application was not fatal, as a part-heard case may be consolidated with a fresh one.

p. 5
02

Whether the petition should proceed by affidavits, written submissions or oral evidence

Holding

Oral evidence is appropriate given the claims for mesne profits and special damages requiring cross-examination

Reasoning

Rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Rules 2013 provides a hierarchy of disposal by affidavits, written submissions or oral evidence, and Rule 20(3) permits the court to direct oral hearing. Since special damages and mesne profits cannot adequately be proved through affidavits, viva voce evidence in open court was indicated.

p. 5
03

Whether the preliminary objection dated 27.4.2021 in Petition No. 3 of 2020 should succeed

Holding

Dismissed as it raises no pure point of law

Reasoning

Having considered the issues and the factual evidence required in the consolidated matters, the court found the preliminary objection, premised on failure to raise constitutional issues and circumvention of the Land Adjudication Act procedures, did not raise a pure point of law and accordingly dismissed it with no order as to costs.

p. 6

Legal principles established

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  • Consolidation is warranted where there are common questions of law or fact of sufficient importance to make it desirable that the matters be disposed of together
  • Consolidation serves efficient and expeditious disposal and must not advantage or disadvantage any party

Court orders

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  1. 1.The application for consolidation is allowed; the lead file shall be file No. 2 of 2019
  2. 2.All pleadings henceforth to be filed in the lead file reflecting all files and parties in order of age of filing
  3. 3.Parties to file paginated bundles including witness lists, statements, documents and case summaries within 45 days (petitioners/cross-petitioners by 31st January 2022; respondents/interested parties within 45 days)
  4. 4.Parties to choose and agree on one lead witness where possible
  5. 5.Parties to agree on documents to be produced without calling their makers
  6. 6.Respondents to file and supply within 45 days all original or certified maps, adjudication register records, notes and files relating to the subject parcels; parties at liberty to attend DLASO offices for discovery on 14 days' written notice
  7. 7.The preliminary objection dated 27.4.2021 is dismissed as raising no pure point of law with no order as to costs
  8. 8.Matter to be mentioned on 3.3.2022 to take a hearing date
Jurisdiction invoked
Article 159(1) & 2(b) of the Constitution; Order 11 Rule 3 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, "Maccu Motors & 7 others v David Kirimi Mwithimbu & 4 others [2021] KEELC 479 (KLR)", Case Analysis (2021). ELC Petition No. 2 of 2019 (with ELC Petition No. 1 of 2021 and ELC Petition No. 3 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/479/eng@2021-12-08

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