Nakumatt Holdings Limited v Board of Trustees National Social Security Fund & another
The bottom line
#Kenya's Environment and Land Court allowed Nakumatt to merge two related lawsuits and update its claim to over Kshs 2.2 billion.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate may swear a supporting affidavit for a client's interlocutory application
The affidavit was properly on record to the extent it concerned facts about the two suits in which counsel acts, though facts of the lease were not within counsel's knowledge.
The court accepted the Court of Appeal's guidance that affidavits should ordinarily be sworn by persons with personal knowledge, but noted that in interlocutory proceedings statements of information and belief are permissible. Since the affidavit mainly addressed the two suits counsel was handling, whose facts were already pleaded, it was properly on record.
Whether the two suits should be consolidated
Consolidation allowed because both suits arise from the same lease, the construction during the lease and the eventual eviction, and would avoid conflicting findings.
Applying the tests in Law Society of Kenya, EAN Kenya, Benson G. Mutahi and Kimani Waweru, the court found common questions of law and fact: both suits arise from the lease between the parties, the engagement of the contractor to construct during the lease, and the eviction. Consolidation would save judicial time and avoid embarrassment from conflicting findings on similar facts.
Whether the Plaintiff should be allowed to amend its Plaint eight years after filing
Amendment allowed; it updates the suit for events overtaken by time and facilitates determination of the real questions in controversy.
Under Section 100 of the Civil Procedure Act and Order 8 Rule 3, the court may at any stage allow amendment on just terms. The draft amended Plaint accounted for the administrator's appointment, the eviction, and a revised special damages claim of Kshs 2.288 billion. The court held the amendment would facilitate determination of the real questions in controversy.
Legal principles established
#- The test for consolidation is whether the same or similar questions of law or fact arise in the suits, not whether the parties are the same.
- Consolidation of suits does not depend on the parties being the same or litigating in the same capacity; it requires the same or similar questions of law and fact.
- The purpose of amending pleadings is to facilitate determination of the real question in controversy between the parties.
Court orders
#- 1.An order consolidating the instant suit with Environment and Land Case No. E063 of 2020, Nakumatt Holdings Limited versus The Board of Trustees of NSSF.
- 2.The Plaintiff granted leave to amend its Plaint dated 28th August 2014 in terms of the draft Amended Plaint, within 14 days from the date of the ruling.
- 3.The Plaintiff at liberty to file and serve additional documents and statements within 14 days.
- 4.The Defendants at liberty to amend their Defences and file additional documents and statements within 14 days from the date of service.
- 5.Costs in the cause.
- Jurisdiction invoked
- Order 11 Rule 3(1)(h) of the Civil Procedure Rules and Section 100 of the Civil Procedure Act (Environment and Land Court original jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nakumatt Holdings Limited v Board of Trustees National Social Security Fund & another", Case Analysis (2023). Environment and Land Case 1170 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17858/eng@2023-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.