Santo & others v Mambrui Promotion Limited & another (Environment & Land Case 49 of 2021) [2024] KEELC 13545 (KLR) (2 December 2024) (Ruling) Neutral citation: [2024] KEELC 13545 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIRONMENT & LAND CASE 49 OF 2021 FM NJOROGE, J DECEMBER 2, 2024 BETWEEN MAURIZIO DAL SANTO & OTHERS .................................................... PLAINTIFF AND MAMBRUI PROMOTION LIMITED ............................................ 1ST DEFENDANT ANGLES BAY HOLDINGS LIMITED ........................................... 2ND DEFENDANT RULING 1. 2. The application for determination is dated 15/2/2024. It was led by the Defendants pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 11 rule 3 (h) of the Civil Procedure Rules. The orders sought are as follows: 1. ………………………………………..Spent; 2. That the honourable court be pleased to issue an order for consolidation of Malindi ELC Case No. 10 of 2021 and Malindi ELC Case No. 49 of 2021; 3. That the honourable court be pleased to issue an order for the suit in Malindi ELC Case No. 10 of 2021 and Malindi ELC Case No. 49 of 2021 be heard at the same time; 4. That costs of this application be in the cause. The application which is supported by the adavit sworn by Harrison Kazungu Kono, is premised on the basis that the subject matter in both suits is similar in Malindi ELC Case No. 10 of 2021, and that both suits revolve around wrongful alignment of boundaries by erecting barbed wire fence in some areas, closing paths in common areas, changing water reticulation system and removing power lines within the premises known as Angels Bay Village, constructed on the land portion no. 624/708 and 798. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13545/eng@2024-12-02 1
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3. The Plaintis opposed the application. They led a replying adavit sworn by Samuel Odhiambo Eleakim on 29/4/2024 wherein he stated that after entering appearance for the Defendants, the rm of Muli and Ole Kina Advocates wrote to the 1st Plainti’s former advocates stating that they did not have instructions to represent the 2nd Defendant; that the said rm therefore has no authority to le the application on behalf of the 2nd Defendant. He stated that the issues in the two suits are not similar and save for the 1st Defendant, the Defendants in ELC 10 of 2021 are not parties in the present suit. He added that the Plaintis herein are not lessees on the parcels of land subject in ELC 10 of 2021 and that the reliefs sought are dierent in both matters. He asserted that although the suit properties in both cases are located at Angels Bay Village, the suit properties belonging to the Plaintis in ELC 10 of 2021 and this case are situated on parcels of land belonging to dierent companies/lessors. 4. The court directed parties to le written submissions. As the time of writing this ruling, none of the parties had led submissions thereto. However, ignoring the issue of representation which was not the subject of the application, I do not nd the pertinent procedural issue raised by the application to be very contentious and I have upon considering the application, formed the opinion that both matters should be heard together. The application dated 15/2/2024 is granted in terms of prayers no (3) and (4) thereof. Therefore, the evidence of witnesses who are common in both suits shall therefore be taken at once in respect of both matters when they take the stand. The two matters shall be listed for a mention on 29/1/2024 for xing of an appropriate hearing date. RULING DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 2ND DAY OF DECEMBER 2024. MWANGI NJOROGE JUDGE, ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13545/eng@2024-12-02 2
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