Balicha & another v Ellen Properties Limited & 12 others (Constitutional Petition 49 of 2021) [2022] KEELC 3309 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa consolidated six land disputes over the same two plots into one case to avoid conflicting decisions.
What this practically means
#Executive summary
#Key legal issues
#Consolidation of suits
The application met the threshold for consolidation because the suits share the same subject matter (Plots 386/1/MN and 264/1/MN) and overlapping parties, and consolidation avoids multiplicity of suits and conflicting decisions
The court found that the common denominator across the suits was the two plots, LR Plot No. 386/1/MN and Plot No. 264/1/MN. All suits except ELC No. 53 of 2021 sought revocation of title on grounds of fraud or adverse possession, and these issues could be comfortably adjudicated in one suit. Some parties overlapped across matters, and the court had already consolidated ELC 165/2019 and 53/2021 with the Petition on 9th March 2022, so this case should not be an exception.
Grounds of opposition and replying affidavit
The objections raised by the 1st and 2nd Petitioners lacked merit and were dismissed
The court considered the four-point grounds of opposition filed by the 2nd Petitioner (which argued the application was misconceived, an abuse of process, and that parties and issues differed, e.g. adverse possession versus revocation of title) and the 1st Petitioner's replying affidavit (which argued dissimilarity of parties in ELC No. 53 of 2021). Despite the substantive difference in relief in ELC 53 of 2021 acknowledged elsewhere in the judgment, the court held the objections bore no merit and dismissed them.
Costs
Each party to bear their own costs because the matter involves several issues of public interest
Although the general rule is that costs follow the event, the court departed from it. The court reasoned that the instant case involves several matters of public interest and that it would therefore be fair that each party bears its own costs of the application.
Legal principles established
#- The principles governing consolidation of suits are founded under Section 81(h) of the Civil Procedure Act, aimed at avoiding multiplicity of suits and conflicting decisions over the same subject matter
- Costs follow the event and are at the discretion of the court
Court orders
#- 1.The Notice of Motion application dated 16th February, 2022 be and is hereby allowed
- 2.All the civil suits known as ELC No. 165 of 2019, ELC No. 134 of 2018, ELC 111 of 2021, CMCC 1648 of 2019 and CMC (ELC) No. 48 of 2021 to be consolidated and become one suit
- 3.Any other matter with a similar subject matter filed thereafter or pending in any other court to be automatically consolidated with this suit
- 4.Pursuant to Section 18 of the Civil Procedure Act, CMCC (ELC) No. 1648 of 2019 and CMCC No. 48 of 2021 be transferred from the CM Court to this court for consolidation, hearing and determination
- 5.ELC No. 49 of 2021 be the lead file where all filings and proceedings take effect
- 6.The 1st and 2nd Petitioners granted 21 days leave to amend and serve their pleadings
- 7.The scheduled hearing taken out of the cause list and re-scheduled to 7th October, 2022, with the site visit to be re-planned
- 8.Each party to bear their costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 81(h) of the Civil Procedure Act, Cap 21; Section 18 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Balicha & another v Ellen Properties Limited & 12 others (Constitutional Petition 49 of 2021) [2022] KEELC 3309 (KLR)", Case Analysis (2022). ELC Constitutional Petition No. 49 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3309/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.