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ELCDismissedEnvironment & Land Case 61 of 2020· [2023] KEELC 17227 (KLR)

Kithi v The Land Registrar, Kilifi County & 3 others

Environment and Land Court
26 April 2023
EME.K. Makori
2,509 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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This ruling of the Environment and Land Court at Malindi (E.K. Makori, J) determined two interlocutory applications in a land dispute over parcel Kadzonzo/Madzimbani/1742. The 4th Defendant, Ali Taib, sought consolidation of this suit with Mombasa ELC No 89 of 2008 and a stay of proceedings, contending that the suit property arose from the adjudication of parcels whose titles had been revoked by the National Land Commission and which were the subject of the Mombasa suit. The 3rd Defendant, Ashok Doshi, separately sought striking out of the amended plaint and dismissal of the suit against him on the ground that it disclosed no cause of action against him. The court framed two issues: whether consolidation was merited and whether the claim against the 3rd Defendant should be struck out. On consolidation, the court applied Order 11 Rule 3(1)(h) of the Civil Procedure Rules and the principles in Stumberg v Potgeiter and Prem Lala Nahata, and although it found the suit property physically forms part of the parcels in the Mombasa suit, it held that the Mombasa claim concerns alleged fraudulent acquisition of titles while this suit concerns an adjudication process, so common questions of law or fact were absent. On striking out, applying D.T. Dobie and Crescent Construction, the court held that the 3rd Defendant had himself sought joinder and had filed a defence and counterclaim raising substantial issues, and that no prejudice not compensable by costs would arise. Both applications were dismissed.

Key legal issues

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01

Whether consolidation of this suit with Mombasa ELC No 89 of 2008 was merited

Holding

Consolidation refused; the suits do not share common questions of law or fact nor arise from the same transactions.

Reasoning

The court applied Order 11 Rule 3(1)(h) and the principles in Stumberg v Potgeiter and Prem Lala Nahata. Although the suit property physically forms part of the parcels in the Mombasa suit, the Mombasa claim concerns alleged fraudulent acquisition of titles while this suit concerns an adjudication process, so the tests for consolidation were not met.

p. 4
02

Whether the claim against the 3rd Defendant should be struck out for disclosing no cause of action

Holding

Application refused; the plaint, read with the 3rd Defendant's own defence and counterclaim, raises substantial triable issues.

Reasoning

Applying D.T. Dobie and Crescent Construction, striking out is discretionary and to be exercised with great caution. The 3rd Defendant had himself sought joinder as defendant and filed a defence and counterclaim raising substantial issues; any prejudice is compensable by costs and his participation would assist the court.

p. 6

Legal principles established

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  • Consolidation is warranted only where common questions of law or fact arise or reliefs arise out of the same transaction or series of transactions.
  • A suit should not be summarily dismissed unless it is plainly hopeless and incurable by amendment.

Court orders

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  1. 1.The applications dated 29th March 2022 and 31st March 2022 are unmerited and are hereby dismissed.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 11 Rule 3(1)(h)
  • Civil Procedure Rules, 2010Order 1 Rule 3
  • Civil Procedure Rules, 2010Order 2 Rule 15

Cases cited (9)

  • Prem Lala Nahata and another v Chandi Prasad Sikaria
    [2007] eKLR

    Definition and purpose of consolidation of suits; jurisdiction arises where common questions of law or fact or same transactions exist.

  • Arnold Kipkirui Langat v Atticon Limited and 7 others
    [2021] eKLR

    Cited alongside Prem Lala Nahata on conditions for consolidation.

  • Law Society of Kenya v Center for Human Rights and Democracy and 12 Others
    [2014] eKLR

    Essence and conditions for consolidation of suits.

  • Nyati Security Guards and Services Ltd v Municipal Council of Mombasa
    [2004] eKLR

    Essence and conditions for consolidation of suits.

  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    (2014) eKLR

    Restating principles of consolidation from Stumberg v Potgeiter.

  • Stumberg and another v Potgeiter
    1970 E.A. 323

    Consolidation where common questions of law or fact render it desirable to dispose of matters at the same time.

  • Brij Kishore V Bir Singh & others
    LR 5922 of 2013

    Quoting Prem Lala Nahata on the purpose and jurisdiction to consolidate suits.

  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR

    Caution in striking out pleadings; suit should not be summarily dismissed unless hopeless and incurable by amendment.

  • Crescent Construction Co. Ltd v Delphis Bank Ltd
    [2007] eKLR

    Power to strike out is discretionary and must be exercised with the greatest care and caution.

Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; Civil Procedure Rules Order 11 Rule 3(1)(h) and Order 2 Rule 15

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kithi v The Land Registrar, Kilifi County & 3 others", Case Analysis (2023). Environment & Land Case 61 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17227/eng@2023-04-26

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