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ELCPartially AllowedELCC No. 1040 of 2016 (with ELCC No. 771 of 2016 and ELCC No. 840 of 2016)· [2021] KEELC 2340 (KLR)

Maestro Connections Health Systems Ltd v Riley Services & 8 others [2021] KEELC 2340 (KLR)

Environment and Land Court
19 July 2021
SOS. OKONG'O
2,819 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court merged three lawsuits over the same Nairobi property into one trial to save time and costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi by Okong'o J deals with a Notice of Motion dated 18 October 2019 by Andrew Sunkuli, the 8th defendant in ELCC No. 1040 of 2016, seeking consolidation of that suit with ELCC No. 771 of 2016 and ELCC No. 840 of 2016, already consolidated, with ELCC No. 771 of 2016 as lead file. The three suits concern the same property, L.R No. 12422/19. Maestro Connections Health Systems and Muthaiga Luxury Homes each claim to have purchased the suit property from H.E. Daniel Toroitich Arap Moi, while USIU claims the parcel was in 1984 amalgamated with L.R No. 12422/18 to form L.R No. 12597, later transferred through DPS and ICEA to USIU and subdivided, meaning the suit property no longer exists. Arap Moi denies selling the property to anyone. Sunkuli and Omwanza Ombati were joined as defendants to Arap Moi's counter-claim alleging a fraudulent scheme. The applicant argued the suits relate to the same parcel, title from the same party, and the bona fide purchaser question, with largely the same witnesses; counsel for most parties had agreed to consolidation at a meeting on 15 August 2018. Counsel for the A.G and Arap Moi opposed, suggesting the suits be heard side by side, though they filed no grounds of opposition or replying affidavit and identified no prejudice. Relying on the Supreme Court's statement on the purpose of consolidation and authorities on common questions of law and fact, the court allowed the application, consolidated the three suits for trial and disposal, retained ELCC No. 840 of 2016 as lead file rather than ELCC No. 771 of 2016, adopted the agreed order of evidence, and gave case-management directions including timelines for bundles, witness statements, and agreement on issues within 45 days.

Key legal issues

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Whether the three suits concerning L.R No. 12422/19 should be consolidated for trial

Holding

Consolidation was granted because the suits concern the same property, largely the same parties, common questions of law and fact, and largely the same witnesses; no prejudice was shown and most advocates had agreed to consolidation

Reasoning

The court noted that the disputed property is identical across the three suits, the parties overlap substantially, and the same witnesses would be called, making separate trials wasteful. Two suits were already consolidated, so the ruling only added the third. Counsel for the A.G and Arap Moi opposed but filed no grounds of opposition or replying affidavit and identified no prejudice. The court adopted the Supreme Court's statement that consolidation facilitates efficient disposal and confers no undue advantage, and aligned the consolidation with the overriding objective of the Civil Procedure Act.

p. 4
02

Directions on the conduct of the consolidated trial

Holding

The court adopted the parties' advocates' agreement of 15 August 2018 on the order of giving evidence and issued further case-management directions on bundles, witness statements, case management before the Deputy Registrar and agreement on issues

Reasoning

The applicant sought directions for the conduct of the consolidated action. The court considered the advocates' meeting of 15 August 2018, recorded in K.A Fraser S.C's letter of 16 August 2018, in which the parties agreed both on consolidation and on the sequence of evidence. The court adopted that agreement, added timelines for filing bundles and witness statements (30 days), a case-management appearance before the Deputy Registrar, a mechanism for inspection of original documents, and 45 days for the parties to agree on issues.

p. 4

Legal principles established

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  • Consolidation is proper where suits share the same property, substantially the same parties, common questions of law and fact, and would call the same witnesses; it serves the overriding objective of saving cost and time and should not occasion prejudice or undue advantage to any party

Court orders

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  1. 1.ELCC No. 1040 of 2016 is consolidated with ELCC No. 771 of 2016 and ELCC No. 840 of 2016 (already consolidated) for trial and disposal together
  2. 2.ELCC No. 840 of 2016 shall remain the lead file
  3. 3.The parties shall present their evidence and be cross-examined in the order set out: USIU as 1st Plaintiff, Muthaiga Luxury Homes as 2nd Plaintiff, Maestro as 3rd Plaintiff, Administrators of the estate of Arap Moi as 1st Defendant, Chief Land Registrar, Director of Surveys and Attorney General as 2nd, 3rd and 4th Defendants, ICEA Lion Life as 5th, Balozi as 6th, Omwanza Ombati as 7th, Andrew Sunkuli as 8th, Triple OKLaw Advocates LLP as 9th, Riley Services as 10th and DPS International Limited as 11th Defendants if they participate
  4. 4.Parties to be referred to by their names rather than as in the pleadings
  5. 5.Parties wishing to file separate document bundles shall do so within 30 days, indexed and paginated, in soft and hard copy, failing which they shall not be permitted to produce documents at trial
  6. 6.Parties who have not filed witness statements shall do so within 30 days, failing which they shall not tender evidence at trial
  7. 7.Parties to ensure all parties have the bundles and witness statements filed in the three suits
  8. 8.Parties to appear before the Deputy Registrar for Case Management to sort out filing and service of bundles and witness statements
  9. 9.Notice procedure for inspection of original documents any party wishes to rely on at trial
  10. 10.Parties to agree on issues for determination within 45 days
  11. 11.Costs to be in the cause (sought in the application; no contrary costs order made)

Authorities

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Legislation

  • Civil Procedure Actoverriding objective
  • Civil Procedure RulesOrder 51 Rule 14

Cases cited (6)

  • Law Society of Kenya v Center for Human Rights and Democracy and 12 Others
    [2014] eKLR
  • Stumberg and Another v Potgeiter
    1970 E.A. 323
  • P.P. Gupta v East Asiatic Co.
    Air 1960 All 184
  • Joseph Okoyo v Edwin Dickson Wasunna
    [2014] eKLR
  • Korean United Church of Kenya & 3 Others v Seng Ha Sang
    [2014] eKLR
  • John Gakure & 148 Others v Dawa Pharmaceuticals Company Limited & 7 Others
    Civil Application No. 299 of 2007
Jurisdiction invoked
Inherent case-management powers under the Civil Procedure Act and the overriding objective (Order 11 Civil Procedure Rules context; consolidation of suits before the ELC)

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, "Maestro Connections Health Systems Ltd v Riley Services & 8 others [2021] KEELC 2340 (KLR)", Case Analysis (2021). ELCC No. 1040 of 2016 (with ELCC No. 771 of 2016 and ELCC No. 840 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2340/eng@2021-07-19

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