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

2. The 6th defendant opposed the application through the replying afidavit of Gikandi Ngibuini advocate sworn on the 22nd March 2024, in which he inter alia deposed that the plaintifis and 6th defendant herein were parties in Mombasa ELC No. 198 of 2012, where issues similar to those herein were raised, and the court delivered judgement over parcels Kilifi/Kawala “A” /Kadzonzo/304 & 305 in favour of 6th defendant on 28th October 2021; that the plaintifis were ordered to give vacant possession by December 2021 or be evicted; that after failing to comply, the 6th defendant obtained warrants to evict the plaintifis on 6th April 2023, but following some negotiations, the parties entered into a memorandum of understanding dated 16th May 2023 that the plaintifis to vacate by 31st December 2023; that the plaintifis vacated and gave vacant possession of the said properties to the 6th defendant on the 20th January 2024; that the said parties memorandum of understanding settled the execution issue in Mombasa ELC No. 198 of 2012 and plaintifis’ appeal in Mombasa CACA No. E133 of 2022. 3. The court issued directions on filing and exchanging submissions on the 21st February 2024 and 6th May 2024. The learned counsel for the plaintifis filed their submissions dated the 2nd May 2024, which the court has considered. the counsel inter alia submitted that the plaintifis are in agreement with the 6th defendant’s depositions in his replying afidavit on settlement of Mombasa ELC No. 198 of 2012, and added that their application does not seek to consolidate that suit with the others; that the suits sought to be consolidated touches on the 1st to the 5th defendants herein and none has filed any response in opposition. 4. The issues for determinations by the court are as follows: 5. a. Whether the suits sought to be consolidated are between the same parties, raises the same questions of facts and law, and whether any of the parties will be prejudiced if the order is granted. b. Who pays the costs? The court has carefully considered the grounds on the application, afidavit evidence, the record, submissions filed, superior courts decisions relied upon and come to the following determinations: a. That the court indeed has the power under Order 11 Rule 3(h) of Civil Procedure Rules to order consolidation of suits in appropriate cases. In doing so, the court considers among others whether the suits sought to be consolidated raises similar questions of facts and law, whether the reliefs sought arise from the same transaction, and whether any of the parties stand to be prejudiced if the order to consolidate is granted. See the decision in the case of Benson G. Mutahi v Raphael Kabutu & Others [2014] eKLR. b. The Supreme Court of Kenya has afirmed the guiding principles set out above in its decision in the case of Law Society of Kenya v The Centre for Human Rights and Democracy [2014] eKLR, where the court held that: “ (39) The essence of consolidation is to facilitate the eficient 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 a party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it. In the matter at hand, this court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues. In addition, the court must be satisfied that no https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6768/eng@2024-10-16 2

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injustice would be occasioned to the respondents if consolidation is ordered as prayed. (45) In the circumstances, would it serve the interest of justice to consolidate the appeal in which the parties are the same, and the central issue is the same even if worded difierently? The irresistible conclusion is in the afirmative. We do not see what good would result from denying the applicant’s prayer for consolidation, and allowing each of the appellants to appropriately canvas its cause. The alternative position would result in the undesirable delays in concluding a matter of great public interest. It is obvious to us that, in the interests of all parties, the central issue in the appeals ought to be determined expeditiously and conclusively by this court. Consolidation of the appeals, in our perception, would significantly advance that goal.” The 1st to the 5th defendants herein have not filed any replies in opposition to the consolidation application, and they did not participate in its hearing. 6. c. The 6th defendant response through the replying afidavit sworn on 22nd March 2024 was not really an opposition to the plaintifis’ application to consolidate per se, but rather to bring to the court’s attention the position inter alia that the memorandum of understanding between him and the plaintifis of 16th May 2023 in Mombasa ELC No. 198 of 2012 had settled the parties’ claim against each other in respect of that suit and the related pending appeal. That position appear to have been confirmed by the plaintifis through their submissions. Indeed, there is no opposition to the instant plaintifis’ consolidation application and I find the plaintifis have met the threshold for consolidating the two suits for hearing and determination. d. Under section 27 of the Civil Procedure Rules chapter 21 of Laws of Kenya, costs follow the events unless where the court orders difierently for good reasons, in the instant application, I find it just for the costs to abide the outcome of the consolidated suits. Flowing from the foregoing determinations, the court finds and orders as follows: a. That the plaintifis’ application dated the 21st October 2021, is allowed in terms of prayers one (1), and Mombasa ELC NO. 219 of 2013, is consolidated to this suit for hearing and determinations. b. The costs to abide the outcome of the consolidated suits. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 16TH DAY OF OCTOBER 2024. S. M. KIBUNJA, J. ELC MOMBASA. In The Presence Of: Plaintifis : No Appearance Defendants: Mr Muriithi for Thangei and Mr Mogaka for Plaintifis in ELC 219 of 2013. Leakey – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6768/eng@2024-10-16 3

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S. M. Kibunja, J. ELC MOMBASA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6768/eng@2024-10-16 4

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