Ole Nadukila & 19 others v Ole Meshuko & 25 others

that there are two les over the same subject matter i.e. this matter and MCELC No. E024 of 2021 before the subordinate court. He deposed that both les share the same parties and the same subject matter in parcel no. Cis-Mara/ Kipise/ 487 and Cis-Mara/ Kipise/ 1257. That upon perusal of the le before this court the subject matter is formed by parcel no. Cis-Mara/ Kipise/ 356, 362, 459, 460, 461, 462, 463, 487, 491, 492, 493, 1175, 1178, 1180, 1231, 1232, 1176, 1245, 1246 and 1257. 3. The 3rd plainti/ applicant further deposed that the defendants/ respondents in the matter before this court posit that they do not recognize parcel 487, which is a subject matter that is before both courts. He went on to depose that the orders being sought before the subordinate court are parcel no. 1257 whose title was obtained while proceedings of this court had not been concluded to be cancelled, and a proper and inclusive survey be carried out to establish the extent which parcel no. 487 has been encroached on. He deposed that it is prejudicial for them to deal with two les over the same subject matter in two dierent courts. 4. The application was opposed by the replying adavit of Nalaku Ene Meshuko sworn on 27th September, 2024. The respondent deposed that she has no interest in this suit despite being served with the application. She further deposed that she is the registered proprietor of parcel no. 1251 which is the subject matter in MCELC No. E024 of 2021. She deposed that she is aware that the 3rd plainti/ applicant is not the registered owner of parcel no. 487 but one Tante Ole Meshuko. 5. The respondent further deposed that the 3rd plainti/ applicant is misguided and is misleading the court as there is no evidence in support of the alleged fraud, and further, that a challenge of a court order issued by a subordinate court can only be contested via appeal. She deposed that it is an abuse of the court process for the applicant to le a similar application in both the subordinate court, and this court simultaneously to contest the ruling. The respondent deposed that if the 3rd plainti/ applicant was desirous to transfer the matter from the subordinate court to this court, he ought to have led an appropriate application. 6. The respondent deposed that the law rm of George Wakahiu and Njenga is not licensed to practice law in the year 2024 as the advocate George Wakahiu Njenga does not have the license for the year 2024. She deposed that parcel no. 1251 is not one of the subject matters in the suit before this court, and that even if there is duplicity, the court is invited to take judicial notice that both suits were in fact led by the applicant himself who cannot now seek to benet from his own mischief. She further deposed that in the event the 3rd plainti/ applicant is constrained by the multiple suits he has brought to court; he can as well withdraw the same. 7. The respondent deposed that it is manifest abuse of court process for the 3rd plainti/ applicant to prefer two applications on the same issues simultaneously in this court and in the subordinate court, and as such the application ought to be dismissed with costs. 8. In reply thereto, the 3rd plainti/ applicant led his supplementary adavit sworn on 14th November, 2024. While reiterating the contents of his supporting adavit, he deposed that parcel no. 1251 was registered in the name of Karino Meshuko who is the husband of the respondent and the 10th defendant, and that she cannot therefore claim not to be aware of the parcel being part of the fraudulent transfer of the said parcel to her names. He deposed that the respondent has not come to court with clean hands as she obtained the title fraudulently, and further, that parcel no. 1251 forms part and parcel of the suit in this matter. 9. The 3rd plainti/ applicant further deposed that the 1st defendant acquired title to parcel no. 487 fraudulently during the pendency of this suit, and that the same is the subject of adjudication in this matter. He deposed that the rm of George Wakahiu & Njenga advocates is another shing expedition https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14056/eng@2024-12-18 2

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whose results are to waste the court’s time. He deposed that Mr. Peter Karanja Njau a partner in the law rm has engaged Mr. Mogaka Cyrus Nyandenge, advocate who has conduct of this matter, and that both advocates have the license to practice in the year 2024. 10. He deposed that the application is proper and of substance, and that the lower court le ought to be transferred to this court. Further, he deposed that the two applications are brought under dierent rules and seek dierent orders, and it is thus not an abuse of the court process but an attempt by the counsel to protect the rights of his client. 11. The application was canvassed by way of written submissions. The 3rd plainti/ applicant led his written submissions dated 14th November 2024 where he raised four issues for determination as listed below: a. Whether the applicants have made up a case for transfer and consolidation of the two les herein. b. Whether this court has jurisdiction to hear and determine the issues raised in the lower court le. c. Whether representation of applicants is lawful. d. Who should bear the costs of this application. 12. On the rst issue, the 3rd plainti/ applicant submitted that it will be unconstitutional to conduct two les in the same judicial system sharing the same jurisdiction for the reason that both courts may issue contradicting orders that should not occur. Further, he submitted that what needs to be considered is whether the subject matter is the same, and that it is not an issue of the parties as raised by the respondent in her objection to the transfer and consolidation. To buttress on this submission, the 3rd plainti/ applicant relied on the cases of Jimas Corporation Limited vs Purity Njeri Kinyanjui [2022] eKLR, Hangzhou Agrochemicals Industries Ltd v Panda Flowers Ltd [2012] eKLR and EAN Kenya Limited v John Sawers & 4 others [2007] eKLR. 13. The 3rd plainti/ applicant submitted that the only dierence between the two suits is the description of the respondent. While further relying on the case of Heinz Isbrecht v Charles Ochieng Ndiga (Msa) Misc. Application No. 20 of 1997, the 3rd plainti/ applicant submitted that the non-transfer of the matter will be prejudicial to them and will further lead to an injustice on their part. 14. On the second issue, the 3rd plainti/ applicant submitted that for an application for the transfer of a suit to succeed, the court from which the suit is being transferred must in the rst place have jurisdiction to try that matter. That in this case, this court has jurisdiction and ought to transfer the matter to itself. Reliance was placed in the case of Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR. 15. On the third issue, the 3rd plainti/ applicant submitted that the advocate on record is qualied, and meets all the requirements set down in Section 9 of the Advocates Act, Cap 16, and thus can represent clients. He relied on the case of National Bank of Kenya v Wilson Ndolo Ayah Civil Appeal No. 119 of 2002, and further submitted that the rm of George Wakahiu & Njenga advocates is duly registered and authorized to conduct and provide legal services as a business. It was also submitted that the practicing certicate of Cyrus Mogaka Nyandenge is not suspended in accordance to Section 27 or by an order under Section 60 (4) of the Advocates Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14056/eng@2024-12-18 3

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16. On the fourth issue, the 3rd plainti/ applicant submitted that from the facts pleaded and evidence tabled, it is the actions of the respondents which invoked all the events giving rise to the application and that costs have been incurred which he prays that the respondent be condemned to pay. 17. The respondent led her written submissions dated 6th December, 2024 where she raised four issues for determination namely: 1. Whether the application is merited. 2. Whether MCELC E024 of 2021 ought to be transferred and consolidated in 46/2017. 3. Whether the applicant’s application amounts to abuse of court process. 4. Capacity to bring suit. 18. On the rst issue, the respondent submitted that it is trite that when a person is aggrieved by a court’s decision, the aggrieved party should appeal but not seek a transfer of case to a higher court, and that the 3rd plainti/ applicant is insincere for not indicating to this court that he had led a similar application in the subordinate court seeking to set aside the orders of 14th June, 2024. 19. On the second issue, the respondent submitted that the claim in the lower court is about boundary and alleged encroachment, and that encroachment cannot be determined unless boundary positions are established. She submitted that the order issued by the subordinate court on 22nd May, 2024, directs the District Land Registrar to visit and establish the correct boundary positions between 487 and 1251. This way, it can be determined if at all 1251 is encroaching and to what extent. 20. On the third issue, the respondent submitted that the applicant’s rst prayer calls for this court to stay orders made on 14th June, 2024 requiring the District Land Registrar to visit the ground and determine the boundary of the two parcels. She urged this court to resist the invitation to sanitize the mischief of ling multiple suits, and dictating where and the speed at which they can be determined. 21. On the fourth issue, the respondent submitted that in the LSK advocates portal, George Wakahiu has no practice certicate for the year 2024, and the last ve years. She also submitted that the same has been admitted by the 3rd plainti/ applicant in the supplementary adavit, and that for this reason, all material led in the name of George Wakahiu law rm ought to be struck out owing to the conrmation by the applicant that Mr. George Wakahiu did not authorize the use of his dormant law rm, and that he is not in actual practice of law in Kenya. 22. In conclusion, the respondent submitted that the issues raised by the applicant can only be adequately addressed in the substantive hearing of the suit in the lower court. 23. I have considered the application, replies thereof and the written submissions led by the 3rd plainti/ applicant and the respondent. In my view, the issues for determination are as follows: - 24. i. Whether this court ought to transfer the suit led before the magistrates’ court i.e. CM ELC No. E024 of 2021 to this court; and ii. Whether the law rm of George Wakahiu & Njenga Advocates is properly on record for the plaintis/ applicants. iii. Who is to bear the costs of the application. On the rst issue, the 3rd plainti/ applicant deposed that Nalaka Ene Meshuko, the respondent herein, obtained orders by misleading material facts to the lower court that led to the ling of the instant application. One of the grounds of the application is that they realized that there were two les over https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14056/eng@2024-12-18 4

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the same subject matter both in this le and in MCELC No. E024 of 2021. It was also the 3rd plainti/ applicant’s deposition that both les share the same parties. Interestingly, in their submissions, the position seems to have changed where the dierence between the two suits arises from the description of the respondent. In support of the application, the 3rd plainti/ applicant annexed a copy of the orders dated 14th June, 2024 and 5th August 2024 respectively. 25. Whereas the 3rd plainti/ applicant heavily deponed to issues which are contained in the lower court le, he did not see the necessity of supplying this court with the evidence, and instead this court has had to call for the le to establish the claims made by the 3rd plainti/ applicant. 26. Section 18 of the Civil Procedure Act provides that: “ (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the high court may at any stage— (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter— (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.” 27. From the above provision of the law, this court has jurisdiction to transfer any suit led at the subordinate court to itself, and vice versa. Transfer of any suit can be made except that such jurisdiction has to be found necessary to issue such an order. I have perused the matter led in MC ELC No. E024 of 2021. The 3rd plainti/ applicant is the plainti and the respondent, the district land registrar and the district surveyor are the 1st defendant, 2nd and 3rd defendants. I have also read a ruling delivered on 15th June 2021, by Hon. G. N. Wakahiu where in determining the two applications before him, he addressed the issue of the suit before this court. It was his opinion that parties should apply to have the two cases consolidated or to have one of the cases dismissed rather than to vacate the orders he had issued. 28. It appears that none of the parties took the subordinate court’s advice, and it is only when the orders were issued that the 3rd plainti/ applicant who clearly is the one aected by the orders that he now realizes that there are two suits over the same subject matter. As a matter of fact, he is the one who led the suit at the subordinate court which means he is responsible for the mess, if any, that he has gotten himself into. 29. I would agree with the respondent that the 3rd plainti/ applicant if he feels constrained by the multiplicity of the suits, he should withdraw either. But the question is would justice be served if that was the case? In my view, that would not be the route to take. In a bid to ensure expeditious disposal of the case, it would be appropriate that the two matters are consolidated. 30. I further note that the respondent herein is not a party to the proceedings before this court save the mention of the 10th defendant who is said to be her late husband. She contended that she has no interest in this suit and that the 3rd plainti/ applicant is not the owner of parcel no. 487. Having perused the https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14056/eng@2024-12-18 5

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le before me, I realize that parcel no. 487 is mentioned as one of the parcels of land in contention. It would thus be proper and to avoid embarrassing this court that the issues raised in both les be determined once and for all. 31. On the second issue, the respondent contended that the rm of George Wakahiu and Njenga advocates is not licensed to practice law in the year 2024. I will not dwell much on this for the reason the learned counsel on record for the 3rd plainti/ applicant is properly before the court as can be seen from the practicing certicate for the year 2024 dated 1st January, 2024. The rm of George Wakahiu & Njenga is also registered as per the certicate of registration issued on 31st March, 2006. 32. On the issue of costs, the 3rd plainti/ applicant is to blame owing to the ling of an almost similar suit before the subordinate court. He has to bear the costs of this application. Having stated the above, I nd merit in the notice of motion dated 16th August, 2024, and I proceed to grant the following orders: i. CMELC (Narok) No. E024 of 2021 Kepue Ole Nweta vs Nalaku Ene Meshuko & 2 Others be transferred to this honourable court for nal determination of the suit. ii. CMELC (Narok) No. E024 of 2021 is hereby consolidated with this le i.e. ELC Case No. 46 of 2017. For the avoidance of doubt, ELC Case no. 46 of 2017 shall be the lead le. iii. The respondent is entitled to the costs of this application. The same is to be borne solely by the 3rd plainti/ applicant. Orders accordingly. DATED, SIGNED & DELIVERED VIA EMAIL on this 18TH day of DECEMBER, 2024. HON. MBOGO C.G. JUDGE 18/12/2024. In the presence of: Mr. Meyoki Pere – C.A https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14056/eng@2024-12-18 6

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