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ELCDismissedELC No. 319 of 2017· [2021] KEELC 2150 (KLR)

Peter Muthiani Kavita & 2 others v James Muviu Mwilu & another [2021] KEELC 2150 (KLR)

Environment and Land Court
2 September 2021
CMC.G. Mbogo
2,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Makueni Environment and Land Court refused to merge two land disputes because one case was nearly finished, so merging would have delayed justice for the other side.

What this practically means

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Executive summary

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The 1st Defendant in ELC No. 319 of 2017 (Makueni) applied by notice of motion dated 11th December 2019 for consolidation of that suit with ELC No. 90 of 2019, Makueni, invoking Sections 39(1) and (2) of the Environment and Land Court Act and Articles 159 and 162 of the Constitution. He deposed that both suits concerned his claimed ownership of a 13-acre parcel in Kanzokea Location, the subject of a 2005 sale agreement with the 2nd Defendant; in ELC 319 of 2017 the Plaintiffs, the 2nd Defendant's children, sought nullification of the sale for want of consent, while in ELC 90 of 2019 he claimed the same land by adverse possession. He argued consolidation would save costs, time and judicial time and avoid conflicting outcomes. The Plaintiffs opposed through the replying affidavit of the 1st Plaintiff and grounds of opposition, contending the application was misconceived and abusive; ELC 319 of 2017 was already awaiting judgement after submissions filed under a consent of 2nd October 2019, while ELC 90 of 2019 was at an early stage, and the adverse possession claim was an afterthought. Both sides relied on Nyati Guards & Security Ltd v Mombasa Municipal Council on the principles for consolidation. The court, Mbogo J, held that although the parties and subject matter were the same and consolidation would ordinarily be appropriate, consolidation at that stage would prejudice the Plaintiffs since one suit awaited judgement and the other had not commenced hearing; no application had been made to set aside the consent of 2nd October 2019, which could only be set aside on grounds justifying setting aside a contract (Flora N. Wasike v Destimo Wamboko). The application was dismissed with costs to abide the outcome of the judgement in ELC 319 of 2017.

Key legal issues

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Whether the two suits should be consolidated

Holding

The application for consolidation was dismissed because consolidation at that stage would prejudice the Plaintiffs/Respondents

Reasoning

The court accepted that the parties and subject matter were the same, making consolidation prima facie appropriate. However, ELC No. 319 of 2017 was awaiting judgement after submissions on issues agreed by consent on 2nd October 2019, while ELC No. 90 of 2019 was at infancy stage. No application had been made to set aside that consent, and a consent order can only be set aside on grounds justifying setting aside a contract. Consolidation would therefore be prejudicial.

p. 3

Legal principles established

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  • A consent judgment or order can only be set aside on the same grounds which would justify the setting aside of a contract

Court orders

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  1. 1.The application dated 11th December, 2019 is dismissed
  2. 2.Costs shall abide the outcome of the judgement in ELC 319 of 2017

Authorities

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Legislation

  • Environment and Land Court ActSections 39(1) and (2)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Constitution of Kenya, 2010Articles 159 and 162

Cases cited (5)

  • Nyati Guards & Security Ltd -Vs- Mombasa Municipal Council
    [2004] eKLR
  • Chimweli Jangaa Mangale & 3 Others -Vs- Hamusi Mohamed Mwawasaa & 15 Others
    [2016] eKLR
  • Benson G. Mutahi Vs Raphael Gichovi Munene Kabutu & 4 Others
    [2014] eKLR
  • Law Society of Kenya -Vs- Center for Human Rights and Democracy & 12 Others
    [2014] eKLR
  • Flora N. Wasike -Vs- Destimo Wamboko
    [1988] eKLR
Jurisdiction invoked
Articles 159 and 162 of the Constitution of Kenya, 2010; Sections 39(1) and (2) of the Environment and Land Court Act, 2011; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, 2010

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, "Peter Muthiani Kavita & 2 others v James Muviu Mwilu & another [2021] KEELC 2150 (KLR)", Case Analysis (2021). ELC No. 319 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2150/eng@2021-09-02

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