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ELCAllowedEnvironment and Land Case 1170 of 2014· [2023] KEELC 17858 (KLR)

Nakumatt Holdings Limited v Board of Trustees National Social Security Fund & another

Environment and Land Court
8 June 2023
3,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Nakumatt Holdings Limited, the plaintiff in ELC 1170 of 2014, moved the Environment and Land Court at Nairobi by Notice of Motion dated 30th May 2022 seeking consolidation of that suit with ELC E063 of 2020 (its unlawful eviction claim against the Board of Trustees of NSSF), leave to amend its 2014 Plaint, and liberty to file additional documents. The 2014 suit claims special damages of Kshs 1,620,148,504 for loss of business caused by the 1st Defendant's reconstruction of the leased Hazina Trade Centre premises during the subsistence of the lease; the 2020 suit claims Kshs 118,174,657 for unlawful eviction. The 1st Defendant opposed, arguing the suits arise from different causes of action and that consolidation and late amendment would increase costs and delay. The 2nd Defendant (the contractor) also opposed, contending there were no common issues and that it is not a party to the 2020 suit, and further objected that the plaintiff's advocate had improperly sworn the supporting affidavit. Angote J held that the affidavit was properly on record to the extent it concerned the two suits counsel was handling. Applying the consolidation tests from Law Society of Kenya, EAN Kenya, Benson G. Mutahi and Kimani Waweru, the court found both suits arose from the same lease, the construction during the lease and the eviction, and that consolidation would save judicial time and avoid conflicting findings. The court also allowed amendment under Section 100 of the Civil Procedure Act and Order 8 Rule 3, finding it would facilitate determination of the real questions in controversy. The application was allowed in full, with costs in the cause.

Key legal issues

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01

Whether an advocate may swear a supporting affidavit for a client's interlocutory application

Holding

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.

Reasoning

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.

p. 4
02

Whether the two suits should be consolidated

Holding

Consolidation allowed because both suits arise from the same lease, the construction during the lease and the eventual eviction, and would avoid conflicting findings.

Reasoning

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.

p. 6
03

Whether the Plaintiff should be allowed to amend its Plaint eight years after filing

Holding

Amendment allowed; it updates the suit for events overtaken by time and facilitates determination of the real questions in controversy.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 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. 3.The Plaintiff at liberty to file and serve additional documents and statements within 14 days.
  4. 4.The Defendants at liberty to amend their Defences and file additional documents and statements within 14 days from the date of service.
  5. 5.Costs in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 11 Rule 3(1)(h)
  • Civil Procedure RulesOrder 19 Rule 3
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure ActSection 100
  • Evidence ActSection 2(2)
  • Advocates Practice RulesRule 9

Cases cited (10)

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

    Factors to be considered in consolidation of suits

  • Joseph Okoyo v Edwin Dickson Wasunna
    (2014) eKLR

    Cited for Nyati Security Guards factors on consolidation

  • Gerphas Alphonse Odhiambo v Felix Adiego
    [2006] eKLR

    Affidavits should not ordinarily be sworn by an advocate on behalf of a client; may be struck out or given little weight

  • Kenya Horticultural Exporters [1977] Ltd v Pape (trading as Osirua Estate)
    [1986] KLR 705

    Interlocutory affidavits must mainly be confined to facts the deponent can prove of own knowledge

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

    Essence of consolidation; same or similar issues; no injustice to respondents

  • EAN Kenya Limited v John Sawers & 4 others
    (2007) eKLR

    Test for consolidation - same or similar questions of law or fact

  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 Others
    [2014] eKLR

    Three-part test for consolidation of suits

  • Kimani Waweru & 28 Others v Law Society of Kenya & 12 Others
    [2014] eKLR

    Consolidation does not depend on same parties or capacity

  • Barclays Bank (K) Ltd v Simons Muruchi Thiga
    [2006] eKLR

    Cited by 2nd Defendant's counsel; not adopted in the court's analysis

  • Kariuki v Kiore & 4 others
    [2022] eKLR

    Cited by 2nd Defendant's counsel; not adopted in the court's analysis

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

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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, "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.