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ELCDismissedNakuru ELCC Number 160 of 2016 (application dated 17th October, 2023)· [2024] KEELC 517 (KLR)

Ruth Wangari Wanyoike v Patrick Nguli Mathei

Environment and Land Court
8 February 2024
1,178 words in judgment
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The bottom line

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A Nakuru land court dismissed a request to combine two land disputes because the applicant filed no pleadings, an illegible title deed, and cited a rule that doesn't exist.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru on a Notice of Motion dated 17th October 2023 by Ruth Wangari Wanyoike, the applicant in Nakuru ELCC Number 160 of 2016, seeking consolidation of her suit with Nakuru Chief Magistrate's ELC Number 157 of 2021 (Franciscar Onyango Oola v Ruth Wangari Wanyoike). The motion was brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 11 rule 3(1)(h) and Order 51 Rule 1 of the Civil Procedure Rules 2010, supported by the Applicant's affidavit. She deponed that both suits concern competing claims of ownership to parcels in the Kiambogo/Kiambogo Block 2 (Mwariki) area under different registration numbers, that a court order of 18th May 2023 directed a site visit for the Regional Surveyor to re-establish boundaries whose report is pending, and that consolidation would avert conflicting determinations without prejudicing the respondent. The respondent did not respond and no submissions were filed. The court framed a single issue: whether consolidation should be ordered. It noted that Order 11 rule 3(1)(h) does not exist, applied the Supreme Court's statement of purpose in Law Society of Kenya v Centre for Human Rights and Democracy and the three-factor test in Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others. Because the Applicant did not furnish the pleadings in either suit and her title deed annexure was illegible, the court could not verify common questions of law or fact or absence of prejudice. It further held the application should have been made in one of the suits sought to be consolidated. The application was dismissed with no order as to costs on 8th February 2024.

Key legal issues

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01

Whether consolidation of the two suits could be granted on the material before the court

Holding

The application failed because it relied on a non-existent rule, omitted the pleadings of the two suits, and annexed an illegible title deed, leaving the court unable to test the matters deposed to.

Reasoning

The court applied the Supreme Court's guidance in Law Society of Kenya v Centre for Human Rights and Democracy and the three consolidated-tests in Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others: common questions of law or fact, same transaction, and no prejudice. To apply those tests the court had to interrogate the pleadings and orders sought in both suits, but the Applicant filed none of the pleadings and her title deed annexure was illegible. The court also held the application ought to have been filed in one of the suits to be consolidated.

p. 3
02

The correct procedural basis for an application to consolidate suits

Holding

Order 11 rule 3(1)(h) of the Civil Procedure Rules 2010, as invoked by the Applicant, does not exist.

Reasoning

The Applicant purported to bring the motion under Order 11 rule 3(1)(h) and Order 51 Rule 1. The court noted there is no such provision as Order 11 rule 3(1)(h), undermining the procedural foundation of the motion, though it still considered the merits under the consolidation principles before dismissing it.

p. 3

Legal principles established

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  • Consolidation is meant to facilitate efficient and expeditious disposal of disputes, not to advantage the party seeking it or disadvantage the party opposing it.
  • An application to consolidate suits should be made in either of the suits sought to be consolidated.

Court orders

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  1. 1.The application dated 17th October, 2023 is dismissed with no order as to costs.

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 1A
  • Civil Procedure Act (Cap 21)Section 1B
  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Rules 2010Order 11 rule 3(1)(h)
  • Civil Procedure Rules 2010Order 51 Rule 1

Cases cited (2)

  • Law Society of Kenya v the Centre for Human Rights and Democracy
    Supreme Court of Kenya, Petition no. 14 of 2013
  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 51 Rule 1 of the Civil Procedure Rules 2010 (inherent powers of the ELC)

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, "Ruth Wangari Wanyoike v Patrick Nguli Mathei", Case Analysis (2024). Nakuru ELCC Number 160 of 2016 (application dated 17th October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/517/eng@2024-02-08

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