Sesi v Musyoki & another; Munguti (Intended Defendant)

be enjoined in this matter to enable the court know how he acquired the said title. He contends that the suit parcels which are subject matter in Kangundo CM ELC No. 19 of 2022 are subdivisions from the subject matter in this instant case. Further, that transfer and consolidation will conclusively solve the issues in dispute. 3. In opposition the Intended Defendant Isaiah Manyanza Munguti led a Replying Adavit where he deposes that he is the registered owner of the properties known as Matungulu/Kyaume/2807 and Matungulu/Kyaume/2808 which he acquired from the 1st Defendant some time in 2017. He conrms that the two parcels of land originated from land parcel number Matungulu/Kyaume/2354 which was at the time registered in the names of the 2nd Defendant. He contends that the 2nd Defendant was unable to pay the purchase price and transferred the same to him. He avers that he got vacant possession of the properties. He explains that sometime in May 2022 the Plainti illegally trespassed unto the said properties without his consent and denied him access leading him to report the matter and le Kangundo CM ELC Suit No. 19 of 2022 seeking injunctive orders which Application was allowed on 11th May, 2022. Further, that the main suit remains pending determination. He insists that he will be prejudiced if the two matters are consolidated. He denies that the Plainti has ever been his client nor has he been charged with fraud regarding the said properties. The Plainti led a Supplementary Adavit dated the 6th March, 2023 and stated that enjoinment of the Intended Defendant would avoid a litany or multiplicity of suits and subsequent conicting decisions. 4. The Application was canvassed by way of written submissions. Analysis And Determination 5. I have considered the instant Notice of Motion Application, respective Adavits as well as rivalling submissions and the following are the issues for determination:Whether the Intended Defendant should be joined in this suit as a 3rd Defendant.Whether Kangundo CM ELC No. 19 of 2022 should be consolidated with this suit. 6. The Applicant in his submissions referred to Order 1 Rule 10(2) of the Civil Procedure Rules 2010 on joinder of parties and stated that the Plainti’s main prayer was to cancel the subdivisions or subtitles that the Intended Defendant claims to own. To buttress his averments, he relied on the following decisions: Board v Jaffer Brothers Ltd (199) E.A 55 (SCU) and Civicon Ltd v Kivuwatt Ltd & 2 Others (2015) eKLR. 7. The Intended 3rd Defendant in his submissions contends that an Application for joinder must be considered within the context and surrounding circumstances of each case. He explained that the instant suit is seeking cancellation of subdivision of the mother title, that means there is no relief sought against him, but only against the 1st and 2nd Defendants. He insisted that the only purpose he will serve is as an Interested Party as opposed to being a Defendant. On whether the two suits should be consolidated, he argued that the Kangundo suit does not relate with this suit; parties are conspicuously dierent and subject matter dierent. Further, that the instant suit oends the principles of res judicata. To buttress his arguments, he relied on the following decisions: Zephir Holdings Ltd v Mimosa Plantations Ltd, Jeremiah Matagaro and Ezekiel Misango Mutisya (2014) eKLR; Kingori v Chege & 2 Others (2002) 2 KLR 243; Skov Estate limited v Agricultural Development Corporation & Another ELC No. 251 of 2012 eKLR and Omoke v Kenyatta & 83 Others (Petition II 9E015 of 2021) [2021] KESC 27 (KLR) (Civ). https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17434/eng@2023-05-18 2

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8. On joinder of a party to any proceedings, Order 1 Rule 10(2) of the Civil Procedure Rules stipulates inter alia:“ (2) 9. The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plainti or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” In Lucy Nungari Ngigi & 128 others v National Bank of Kenya Limited & another [2015] eKLR, the Learned Judge while dealing with joinder of parties in respect to a dispute over land, held as follows: “ I do not wish to determine the validity or otherwise of this arrangement between the 1st and 2nd Defendant because that is a matter for the trial; but one thing is clear from all these things: that the Plaintis and the intended Plaintis have an inextricable relief arising out of the subdivision and sale of the plots herein to them by the 2nd Defendant. Even if each of the Plaintis was to le a separate suit, a common issue of fact and law would emerge in relation to the subdivision and sale of the plots to each one of them. Similarly, the validity of the addendum to the mortgage herein between the Defendants is in the center of the cases by the Plaintis and the intended Plaintis. Therefore, despite the fact that the plots are numerous and perhaps of dierent sizes or that they were sold to dierent persons, they are all deduced from the suit property, and derived in the same transaction: they are based on the addendum between the Defendants, and all form part of the mortgaged property. Invariably, the determination of the real issues in controversy between the Plainti and the intended plaintis on the one hand, and the Defendants on the other hand, will need all concerned parties to be before the court. This course not only prevents duplication of eorts but also allows the court to determine the relief in the entire transaction and all common issues of fact and law which arise among the parties. Accordingly, to enable the court determine the real issues in dispute among all the parties, the intended Plaintis must be enjoined in the suit.” 10. In the current scenario, the intended Defendant purchased two resultant subdivisions of the suit land herein, in which the Plainti has sought for cancellation of titles. He has further led the aforementioned suit at Kangundo seeking to restrain the Plainti and his brother from interfering with his two parcels of land. I note the Intended Defendant in his Replying Adavit admits he acquired his parcels of land from the 1st Defendant. Insofar as he insists he should not be joined in these proceedings, however, in relying on the legal provisions cited above as well as associating myself with the quoted decision, I opine that the Intended Defendant indeed meets the criteria for joinder as he also purchased resultant subdivisions of the disputed land. In my view, his involvement in these proceedings is necessary to enable the court eectually and completely adjudicate upon and settle all questions involved in the dispute herein. Further, he will be aected by any decision from this suit. In the circumstances, I will proceed to join the Intended Defendant as the 3rd Defendant in this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17434/eng@2023-05-18 3

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11. On consolidation of suits, Order 11 Rule 3(1) (h) of the Civil Procedure Rules provides inter alia: “ (1) With a view to furthering expeditious disposal of cases and case management the court shall within thirty days after the close of pleadings convene a Case Conference in which it shall— (h) 12. consider consolidation of suits.” In the case of Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others [2014] eKLR the learned Judge provided the criteria for consolidation of suits and stated thus:“ The Civil Procedure Rules mandate Courts to consider consolidation of suits and in so doing, to be guided by the following:- 13. 1. Do the same question of law or fact arise in both cases? 2. Do the rights or reliefs claimed in the two cases or more arise out of the same transaction or series of transaction? 3. Will any party be disadvantaged or prejudiced or will consolidation confer undue advantage to the other party.” Further in the case of Law Society of Kenya Vs Centre for Human Rights & Democracy & 12 Others (2014) eKLR, the Supreme Court of Kenya provided the following criteria on consolidation of suits: “ The essence of consolidation is to facilitate the ecient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it.” 14. In this instance the Plainti has sought to consolidate this suit with the Kangundo CM ELC E 19 of 2022 which was led by the intended Defendant against him and another party. I note in the said suit, the Intended Defendant admits the Plainti operates a slaughter house next to his parcels of land Matungulu/Kyaume/2807 and Matungulu/ Kyaume/2808 respectively. Further, in his Replying Adavit the Intended Defendant admits that Matungulu/Kyaume/2807 and Matungulu/ Kyaume/2808 were resultant subdivisions of Matungulu/Kyaume/2354. The Plainti in this suit has sought for cancellation of titles which were resultant subdivisions of Matungulu/Kyaume/2354. Further, for the said title to be transferred to his name. Insofar as the Intended Defendant as opposed consolidation of these suits, however I note as per annexure ‘IM-2 (a)’ in his Replying Adavit which is a Sale Agreement, it is clear he was purchasing land parcel number Matungulu/Kyaume/2354 which is also the suit land herein. Based on the facts as presented while associating myself with the abovementioned judicial authorities and relying on the legal provisions cited above, I hold that the same question of law and fact arise in the two suits. Further, that even though some of the parties are dierent, the suit lands in the Kangundo case arise from a subdivision of the suit land in the instant case. I opine that even though the rights or reliefs claimed in the two cases did not arise out of the same transaction, the original owner of the land was the same and obtained purchase price from the Plainti and Intended Defendant at dierent intervals. It is my considered view that no party will suer prejudice or disadvantage if the two suits are consolidated. At this juncture, I nd that consolidation would be most convenient as it will facilitate the ecient and expeditious disposal of the two cases. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17434/eng@2023-05-18 4

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15. It is against the foregoing that I nd the Notice of Motion Application dated the 8th June, 2022 merited and will allow it. 16. I will proceed to make the following nal orders: a. The Intended Defendant be and is hereby joined in these proceedings as 3rd Defendant. b. The 3rd Defendant be served with all the pleadings herein within seven (7) days from the date hereof, after which he is granted leave of twenty-one (21) days to le and serve his Defence. c. Kangundo CM ELC No. 19 of 2022 be transferred to this court and consolidated with Machakos ELC 34 of 2022 for hearing and nal determination. d. Costs will be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 18TH DAY OF MAY, 2023 CHRISTINE OCHIENG JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17434/eng@2023-05-18 5

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