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ELCDismissedELC 250 of 2017 (consolidated with ELC 386 of 2017)· [2022] KEELC 2185 (KLR)

Henry Musyoki Kilonzi Suing on behalf of the estate of Henry Musyoki Kilonzi – Deceased) v Makau; Makau & 10 others (Interested Parties) (Environment & Land Case 250 & 386 of 2017 (Consolidated)) [2022] KEELC 2185 (KLR)

Environment and Land Court
5 May 2022
COChristine Ochieng
2,058 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked a plaintiff from quietly abandoning his land case because consolidated suits belong to everyone named in them, not just one party.

What this practically means

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Executive summary

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The plaintiff, Meshack Musyoki, brought a Notice of Motion dated 3rd November 2021 under sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules seeking to have Machakos ELC 250 of 2017 marked as fully withdrawn with costs in the cause. He deponed that the dispute with the Defendant had been settled out of court, that a Notice of Withdrawal had been filed on 8th July 2020, and that the Interested Parties, who had purchased portions of the five-acre suit property from Mbukoni Holdings Ltd, had no claim against him and would not be affected. The 2nd to 12th Defendants/Interested Parties opposed, pointing out that the suit had been consolidated with ELC 386 of 2017 by a Ruling of 5th June 2020 which set aside the consent between the plaintiff and the Defendant and cancelled the subdivision; their suit operated as a counterclaim, and no leave had been sought for withdrawal, which they argued amounted to contempt and abuse of process. The court framed a single issue: whether the suit should be marked as fully withdrawn. Relying on Margaret Wanja Mucuthi and Beijing Industrial Designing & Research Institute v Lagoon Development Ltd, the court held that consolidated suits become one, that all parties ought to have been consulted before withdrawal, and that leave ought to have been sought; the unilateral withdrawal gave the plaintiff undue advantage and was an abuse of court process. The application was dismissed with costs and the matter directed to be set down for hearing on its merits.

Key legal issues

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01

Whether the plaintiff could mark the consolidated suit as fully withdrawn without leave of court and without notice to the Interested Parties

Holding

The withdrawal was not allowed; the plaintiff ought to have sought leave and consulted all parties to the consolidated suits

Reasoning

The suit had been consolidated with ELC 386 of 2017 by a Ruling of 5th June 2020, making the two suits one. The Interested Parties had a stake in the suit property, and the 2nd to 12th Defendants' suit in ELC 386 of 2017 operated as a counterclaim against the plaintiff. Withdrawing without leave gave the plaintiff undue advantage and amounted to an abuse of court process. The court relied on Margaret Wanja Mucuthi and Beijing Industrial Designing & Research on the effect of consolidation and withdrawal.

p. 5
02

Effect of consolidation on individual claims within consolidated suits

Holding

Consolidated suits are treated as one action; a party cannot unilaterally withdraw its suit leaving other parties without a basis

Reasoning

Citing Margaret Wanja Mucuthi, the court noted that consolidation combines suits and treats them as one to save costs, time and effort, and that consolidation is a procedural action that can be undone where parties abandon claims. Because the suit property was one and the causes of action interlinked, the plaintiff's unilateral withdrawal would defeat the consolidation orders and prejudice the Interested Parties.

p. 4

Legal principles established

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  • Once suits are consolidated they become one, and all parties therein must be consulted before one party withdraws; leave of court ought to be sought before withdrawal of a consolidated suit
  • Withdrawal of a consolidated suit without leave or notice, to defeat an order of court, is an abuse of court process

Court orders

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  1. 1.The Notice of Motion application dated 3rd November, 2021 is dismissed with costs
  2. 2.The matter to be set down for hearing on its merits
  3. 3.The withdrawal of the suit is not allowed

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 25 Rule 1

Cases cited (3)

  • Beijing Industrial Designing & Research Vs Lagoon Development Ltd
    (2015) eKLR
  • Kofinaf Company Limited & Another V Nahashon Ngige Nyagah & 20 Others
    (2017) eKLR
  • Margaret Wanja Mucuthi v Margaret Wanja Mucuthi & 2 others
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 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, "Henry Musyoki Kilonzi Suing on behalf of the estate of Henry Musyoki Kilonzi – Deceased) v Makau; Makau & 10 others (Interested Parties) (Environment & Land Case 250 & 386 of 2017 (Consolidated)) [2022] KEELC 2185 (KLR)", Case Analysis (2022). ELC 250 of 2017 (consolidated with ELC 386 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2185/eng@2022-05-05

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