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ELCDismissedELC NO. 301 of 2014· [2021] KEELC 3899 (KLR)

Fabian Esemai & another v Priscilla Jeserek Telieny [2021] KEELC 3899 (KLR)

Environment and Land Court
9 March 2021
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court refused to merge two land lawsuits over the same plot because one sought ownership cancellation and the other compensation.

What this practically means

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Executive summary

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This ruling by M. A. Odenty J of the Environment and Land Court at Eldoret, delivered on 9th March 2021, determined an application by the 1st defendant seeking consolidation of ELC No. 301 of 2014 with Eldoret ELC No. 113 of 2020 (Priscilla Jeserek Telieny v Alfred Omondi Mola & others), designation of the file as pilot file, and a stay of the suit pending the application. The applicant argued that common questions of law and fact arose in both suits, both concerning Eldoret Municipality Block 5/558, and relied on Benson G. Mutahi v Raphael Gichovi Munene Kabutu for the proposition that consolidation should not be ordered where it prejudices any party. The plaintiff opposed through a replying affidavit, arguing the causes of action differed, no common questions arose, the supporting affidavit lacked annexures, and the application was an abuse of process given a previously dismissed joinder application. The 2nd respondent also opposed, noting one suit concerned ownership and the other compensation. The court set out the principles for consolidation from Joseph Okoyo v Edwin Dickson Wasunna, as approved in Nyati Security Guards, and from Prem Lala Nahata v Chandi Prasad Sikaria, emphasising that consolidation aims to save costs, time and effort but must not cause prejudice, delay or obscure the real issues. The court found the prayers in the two suits fundamentally different - revocation of a Certificate of Lease versus compensation of Kshs. 15,000,000 - and that ownership must first be determined before compensation could be assessed. Noting also that the applicant failed to attach the plaint in the other suit, the court dismissed the application with costs to the plaintiff/respondent.

Key legal issues

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01

Whether the two suits raise common questions of law or fact and arise from the same transaction

Holding

Although both suits concern the same parcel of land, Eldoret Municipality/Block 5/558, the prayers are fundamentally different - one seeks revocation of a Certificate of Lease, the other compensation - so consolidation was not warranted

Reasoning

The court accepted that consolidation serves the overriding objective by saving costs, time and effort, but held that it must not be ordered where it would cause prejudice, delay or obscure the real issues. Ownership of the land must first be determined in this suit before compensation in the other suit can be assessed, meaning the suits are properly handled separately.

p. 3
02

Whether the applicant discharged the burden of proving suitability for consolidation

Holding

The applicant failed to attach the plaint in ELC No. 113 of 2020, leaving the court unable to determine suitability for consolidation

Reasoning

The court noted that the applicant did not attach the plaint in the other suit, so the court could not assess whether common questions of law or fact arose. The respondents demonstrated that the causes of action differed - ownership versus compensation - and that the parties to the two suits were not the same, further undermining consolidation.

p. 2

Legal principles established

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  • Consolidation may be ordered where suits pending in the same court raise a common question of law or fact, or where rights or relief claimed arise out of the same transaction, or where it is otherwise desirable
  • The purpose of consolidation is to save costs, time and effort, but it will not be ordered where it would cause prejudice, delay, or obscure the real issues
  • The applicant bears the burden of establishing suitability for consolidation, including placing the pleadings in the other suit before the court

Court orders

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  1. 1.The application dated 19th January 2021 seeking consolidation is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent
Jurisdiction invoked
Inherent powers of the court and the overriding objective of the Civil Procedure Act

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, "Fabian Esemai & another v Priscilla Jeserek Telieny [2021] KEELC 3899 (KLR)", Case Analysis (2021). ELC NO. 301 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3899/eng@2021-03-09

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