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ELCAllowedMiscellaneous Application 8 of 2022· [2022] KEELC 13444 (KLR)

Lughanje v Muira & 2 others

Environment and Land Court
11 October 2022
1,081 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicant, Emmanuel Ziro Lughanje, moved the Environment and Land Court at Malindi by notice of motion dated February 16, 2022 seeking withdrawal and transfer of Malindi Chief Magistrate's Court Land Case No 2 of 2018 to the ELC, and its consolidation with Malindi ELC Case No 102 of 2018 (Kenya Africa National Union v Emmanuel Ziro Lughanje & 6 others), in which Olola J had earlier issued restraining orders against him. Both suits concern a disputed sale agreement dated September 1, 2008 over a house on plot no 4090 Malindi, commonly known as the KANU office; the applicant claims he purchased the property from KANU officials, whom KANU has disowned. The applicant was plaintiff in the lower court case and plaintiff in ELC 102 of 2018. Counsel relied on Order 11 rule 3 of the Civil Procedure Rules and authorities on consolidation, and on the overriding objective in sections 1A and 1B of the Civil Procedure Act. The 2nd respondent did not oppose the transfer but objected that the other parties to the lower court suit had not been notified as required by section 18 of the Civil Procedure Act. Odeny J found the issues in the two suits substantially the same, revolving around the same property, noted the 1st defendant's intention to join KANU as a third party, and allowed the application as prayed, with each party bearing their own costs.

Key legal issues

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01

Transfer of suit under section 18 of the Civil Procedure Act

Holding

The application for transfer was merited as the suits concerned the same parties and subject matter, and the respondent raised no objection to the transfer itself.

Reasoning

The court invoked section 18(1)(b)(i) of the Civil Procedure Act permitting the High Court (and by extension the ELC) to withdraw a suit pending in a subordinate court and try it itself. The suit sought to be transferred involved the same parties and subject matter as ELC 102 of 2018, both concerning a disputed sale agreement over plot no 4090 Malindi. The respondent did not oppose the transfer, only the lack of notice to other parties.

p. 3
02

Consolidation of suits with common issues

Holding

Consolidation was appropriate because the issues in the two suits are substantially the same and revolve around the same property.

Reasoning

The court perused the plaint in Civil Case No 2 of 2018 and found the issues substantially the same as in ELC 102 of 2018, both concerning ownership of the suit property. The 1st defendant in the lower court case had also expressed an intention to join KANU, the plaintiff in ELC 102 of 2018, as a third party, reinforcing the connection between the suits and the desirability of a just determination in one forum.

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Effect of non-joinder or lack of notice to other parties

Holding

The lack of notice to other parties in the lower court suit was not treated as fatal to the application.

Reasoning

The 2nd respondent supported the application but argued the other parties to Land Case No 2 of 2018 had not been notified as required under section 18 of the Civil Procedure Act. The court noted the respondent had no objection to the transfer itself and, having found the suits substantially identical, allowed the application as prayed without treating the notice defect as fatal.

Legal principles established

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  • Where suits involve the same parties and substantially the same subject matter, the ELC may withdraw a suit from a subordinate court under section 18 of the Civil Procedure Act and consolidate it with a pending suit for just determination.

Court orders

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  1. 1.Application allowed as prayed
  2. 2.Malindi Chief Magistrate's Court Land Case No 2 of 2018 withdrawn and transferred to the Environment and Land Court to try and dispose of the same
  3. 3.Transferred case consolidated with Malindi ELC Case No 102 of 2018 - Kenya Africa National Union v Emmanuel Ziro Lughanje & 6 others
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Actsection 18
  • Civil Procedure Actsections 1A and 1B
  • Civil Procedure RulesOrder 11 rule 3
  • Civil Procedure RulesOrder 21 [1]

Cases cited (5)

  • Philip Keipto Chemwolo & another v Augustine Kubende
    [1986] eKLR

    Consolidation of suits

  • Prem Lala Nahata & Anor v Chandi Prasad Sikaria
    [2007] 2 Supreme Court Cases 551

    Consolidation of suits

  • Law Society of Kenya v Centre for Human Rights & Democracy & 12 others
    [2014] eKLR

    Consolidation of suits

  • Nyati Security Guards & Services Limited v Municipal Council of Mombasa
    [2000] eKLR

    Consolidation of suits

  • New Kenya Cooperative Creamaries Ltd v Hassan Ali Mboga And 34 others
    [2017] eKLR

    Overriding objective under sections 1A and 1B of the Civil Procedure Act

Jurisdiction invoked
Section 18 of the Civil Procedure Act (transfer/withdrawal of suits from subordinate courts)

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, "Lughanje v Muira & 2 others", Case Analysis (2022). Miscellaneous Application 8 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13444/eng@2022-10-11

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