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ELCDismissedELC 128 of 2021· [2024] KEELC 1496 (KLR)

Rubis Energy Kenya PLC (Formerly Known as Kenol Kobil PLC) v Trustees of Seif Bin Salim & 2 others (Environment & Land Case 128 of 2021) [2024] KEELC 1496 (KLR)

Environment and Land Court
19 March 2024
1,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa refused to consolidate Rubis Energy's case with a separate magistrate's court suit because they involved different parties and disputes.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Mombasa on a notice of motion dated 4th August 2023 brought by the plaintiff, Rubis Energy Kenya PLC, seeking a stay of proceedings in CMCC 632 of 2020 (Mombasa) - SAS General Trading Limited v Rubis Energy Kenya PLC, an order withdrawing that suit from the Magistrate's Court for hearing and determination by the High Court, and its consolidation with ELC 128 of 2021 with the ELC file as lead file. The application was anchored on Rule 3(2) of the High Court Procedure Rules, sections 1A, 1B, 3A, 18 and 63 of the Civil Procedure Act, Order 57 Rule 1 of the Civil Procedure Rules, Articles 40 and 159 of the Constitution, section 101 of the Land Registration Act and sections 13 and 19 of the Environment and Land Court Act. The 2nd defendant opposed, arguing the suit properties differed (MSA/Block XVI/300 and L.R. No. 1149), that it was not a party to the lower court suit, and that the plaintiff was forum shopping. The 1st defendant argued the suits had different parties, different causes of action (contract in the lower court; lease and a counterclaim for trespass here), no privity of contract with the plaintiff or SAS General Trading Limited, and that withdrawal would usurp the magistrate's jurisdiction. The plaintiff responded that Mombasa/Block XVI/300 is a subdivision of L.R. 1149 and that consolidation would avoid conflicting decisions. The court set out the applicable consolidation principles from Prem Lala Nahata, Law Society of Kenya and Nyati Security Guards, but found the suits involved different parties, causes of action and circumstances, and that SAS General Trading Limited was not a party to the application. The application was dismissed with costs on 19th March 2024.

Key legal issues

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01

Whether the two suits met the requirements for consolidation under Order 11 Rule 3 of the Civil Procedure Rules

Holding

The application for consolidation and withdrawal of the lower court suit failed because the suits involve different parties, different causes of action and different suit properties, and SAS General Trading Limited was not a party to the application.

Reasoning

The court set out the principles governing consolidation from Prem Lala Nahata, Law Society of Kenya and Nyati Security Guards. It then examined the pleadings in the lower court suit, finding it concerned a dealership licence agreement between different parties, that the 1st defendant had no privity of contract with the plaintiff or SAS General Trading Limited, and that SAS General Trading Limited was not even a party to the application. The application was therefore dismissed with costs.

p. 4
02

Whether the High Court could withdraw a suit from the Magistrate's Court where the conditions for consolidation are absent

Holding

The 1st defendant contended withdrawal would be ultra vires; the court did not need to decide this as the application failed on the consolidation requirements.

Reasoning

The 1st defendant argued the magistrate's court had jurisdiction over the lower court suit and that withdrawal would amount to usurping that jurisdiction, referencing pecuniary jurisdiction. The court resolved the application on the merits of consolidation, finding the suits had different causes of action (breach of contract in the lower court; lease dispute and counterclaim for trespass here) and different parties, so the discretion to consolidate was not engaged.

p. 2

Legal principles established

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  • Consolidation will be ordered where there is a common question of law or fact, the reliefs arise from the same or a series of transactions, or for other reasons such as convenience, avoiding multiplicity of suits and meeting the overriding objective.

Court orders

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  1. 1.The application dated 4th August 2023 is dismissed with costs.

Authorities

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Legislation

  • High Court Procedure Rules, Judicature Act (Cap. 8)Rule 3(2)
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 7A, 18, 63
  • Civil Procedure Rules, 2010Order 57 Rule 1; Order 11 Rule 3(1)(h)
  • Constitution of Kenya, 2010Articles 40 and 159
  • Land Registration Act, 2012Section 101
  • Environment and Land Court Act, No. 19 of 2011Sections 13 and 19

Cases cited (5)

  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 Others
    [2014] eKLR
  • Selecta Kenya Gmbh & Co. KG v Chase Bank Kenya Limited & 2 Others
    [2018] eKLR
  • Prem Lala Nahata & Anor v Chandi Prasad Sikaria
    [2007] 2 Supreme Court Cases 551
  • Law Society of Kenya v Center for Human Rights & Democracy & 12 Others
    [2014] eKLR
  • Nyati Security Guards & Services Ltd v Municipal Council of Mombasa
    (2000) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A, 18 and 63 of the Civil Procedure Act; Order 11 Rule 3 and Order 57 Rule 1 of the Civil Procedure Rules, 2010; Article 40 and 159 of the Constitution; Rule 3(2) of the High Court Procedure Rules, Judicature Act (Cap. 8)

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, "Rubis Energy Kenya PLC (Formerly Known as Kenol Kobil PLC) v Trustees of Seif Bin Salim & 2 others (Environment & Land Case 128 of 2021) [2024] KEELC 1496 (KLR)", Case Analysis (2024). ELC 128 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1496/eng@2024-03-19

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