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ELCAllowedMombasa ELC (case number of the principal suit not stated in judgment; application dated 21st October 2021)· [2024] KEELC 6768 (KLR)

Presbyterian Church of East Africa - Pwani Presbytery & another v Mboe & 5 others (Environment & Land Case 160 of 2017) [2024] KEELC 6768 (KLR)

Environment and Land Court
16 October 2024
SKS. M. Kibunja
1,169 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Mombasa allowed two land disputes over the same property to be combined into one case, so everything gets heard together without delay.

What this practically means

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Executive summary

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By an application dated 21st October 2021, the plaintiffs sought consolidation of the present suit with Mombasa ELC No. 219 of 2013 for hearing and determination, supported by the affidavit of Reverend Boru Samuel Tulicha, who deposed that the plaintiffs and the 3rd to 5th defendants are parties in the 2013 suit and that parcel Kilifi/Kawala 'A' Kadzonzo/306 forms part of the subject matter of both suits, which raise the same questions of fact and law and in which no party would be prejudiced by consolidation. The 6th defendant, through a replying affidavit sworn on 22nd March 2024, did not oppose the application per se but brought to the court's attention the settlement of Mombasa ELC No. 198 of 2012 (concerning parcels 304 and 305) through a memorandum of understanding dated 16th May 2023, pursuant to which the plaintiffs vacated and gave vacant possession on 20th January 2024, settling execution and the related appeal Mombasa CACA No. E133 of 2022 - a position the plaintiffs confirmed in submissions. The 1st to 5th defendants filed no response and did not participate. Framing two issues (whether the suits involve the same parties and questions of fact and law without prejudice, and costs), the court held it has power under Order 11 Rule 3(h) of the Civil Procedure Rules to consolidate suits where they raise similar questions of fact and law, arise from the same transaction and no party is prejudiced, principles affirmed by the Supreme Court in Law Society of Kenya v The Centre for Human Rights and Democracy. Finding no opposition and the threshold met, the court allowed the application, consolidated Mombasa ELC No. 219 of 2013 with this suit, and ordered that costs abide the outcome of the consolidated suits.

Key legal issues

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01

Whether the two suits should be consolidated

Holding

Yes - the application was unopposed and the threshold for consolidation was met.

Reasoning

The court applied Order 11 Rule 3(h) and the principles in Benson G. Mutahi and Law Society of Kenya v Centre for Human Rights and Democracy: suits raising similar questions of fact and law arising from the same transaction may be consolidated absent prejudice. The 1st to 5th defendants filed no reply; the 6th defendant's affidavit raised no true opposition, only noting settlement of a separate suit by a memorandum of understanding confirmed by the plaintiffs. The plaintiffs therefore met the threshold.

p. 3
02

Who pays the costs of the application

Holding

Costs to abide the outcome of the consolidated suits.

Reasoning

Applying section 27 of the Civil Procedure Act, costs follow the event unless the court orders otherwise for good reason. Because the consolidated suits were yet to be heard, the court found it just that the costs of the application await the outcome of the consolidated suits rather than being awarded now.

p. 3

Legal principles established

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  • The court has power under Order 11 Rule 3(h) of the Civil Procedure Rules to order consolidation of suits where they raise similar questions of fact and law, arise from the same transaction, and no party will be prejudiced.
  • Consolidation is meant to facilitate efficient and expeditious disposal of disputes and must not advantage or disadvantage any party.

Court orders

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  1. 1.The plaintiffs' application dated 21st October 2021 is allowed in terms of prayer one (1).
  2. 2.Mombasa ELC No. 219 of 2013 is consolidated to this suit for hearing and determination.
  3. 3.Costs to abide the outcome of the consolidated suits.

Authorities

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Legislation

  • Civil Procedure RulesOrder 11 Rule 3(h)
  • Civil Procedure Actsection 27

Cases cited (2)

  • Benson G. Mutahi v Raphael Kabutu & Others
    [2014] eKLR
  • Law Society of Kenya v The Centre for Human Rights and Democracy
    [2014] eKLR
Jurisdiction invoked
Order 11 Rule 3(h) of the Civil Procedure Rules (power to order consolidation of suits)

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, "Presbyterian Church of East Africa - Pwani Presbytery & another v Mboe & 5 others (Environment & Land Case 160 of 2017) [2024] KEELC 6768 (KLR)", Case Analysis (2024). Mombasa ELC (case number of the principal suit not stated in judgment; application dated 21st October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6768/eng@2024-10-16

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