Muntet & another v Muntet & another

3. The application is supported by the Adavit of Nemuta Ene Muntet, 1st Plainti/Applicant sworn on 9th October 2025, on behalf of herself and of 2nd Plainti/Applicant. The Plaintis/Applicants deposed that they both got married to Tatai Ole Muntet, 1st Defendant in the years 1993 and 1996 respectively. 4. They deposed that their husband acquired the suit property Cis-Mara/Oldonyo-Rasha/527, in the year 2013 wherein, they developed and have been living together with their children. 5. Further, that the Plainti in ELC No.E008 of 2023, sued the Defendant for breach of Contract and seeks for orders to compel the Defendant to transfer portions of the suit property to it, while on the other hand, the Plaintis/Applicants herein led this suit seeking that the 2nd Defendant be prohibited from dealing with the suit property since the same is matrimonial property, and the Plaintis did not give consents as the wives/spouses of the 1st Defendant to have it sold, subdivided or transferred. 6. The application is opposed by the 2nd Respondent vide a Replying Adavit sworn by Peter Leshao Tunai, a Director of the 2nd Defendant Company, who averred that at the inception of this suit, the 2nd Respondent raised a Preliminary Objection, arguing that the matter was sub judice to ELCLC E008 of 2023, which involves substantially the same property. In response, the Applicants categorically denied that the instant suit had any bearing on ELCLC No. E008 of 2023, and led a Replying Adavit sworn on 4th June 2024, asserting that the matters did not involve the same parties and the orders sought were distinct. 7. It is therefore contradictory and disingenuous for the Plaintis/ Applicants to now seek consolidation of the matters they previously denied were connected. In fact, in the matter they now seek to have consolidated, the 1st Respondent, who is the husband to the Applicants, failed to enter appearance until a judgment was entered against him, which was subsequently set aside after he came on record. 8. In the present suit, the Plaintis/ Applicants have sued their husband, the 1st Respondent, who has not entered appearance to date, and given their pattern of conduct, it is only a matter of time before he resurfaces to seek the setting aside of the proceedings. The Applicants and the 1st Respondent's conduct amounts to an attempt to manipulate the court process, adopting positions as and when convenient, thereby undermining the integrity and orderly administration of justice. 9. The deponent further stated he verily believes that the present application for consolidation is frivolous, vexatious, and intended to trivialize the process of this Court and ought to be dismissed for being an abuse of the court process. 10. The Plaintis/ applicants led a supplementary adavit and addressed the 2nd Respondent’s preliminary objection, which claimed that the current matter was sub judice to ELC Number E008 of 2023. She argued that at the time of the objection, the court lacked evidentiary evidence, testimonials, and documents to establish the facts leading to the ruling. The ruling stated that the preliminary objection was defeated as it required the court to ascertain evidence outside the pleadings, which is contrary to the nature of a preliminary objection. 11. The Plaintis/Applicants deponed that the 1st Defendant; Tatai Ole Muntet, has now entered an appearance in both cases through the Law Firm of Odiria and Company Advocates.The applicant refuted the 2nd Respondent’s claim that the Plaintis and the 1st Defendant were misusing the court process, asserting that the claim in ELC Case No. E004 of 2024 is serious and warrants consolidation with ELC Number E008 of 2023. She concluded by stating that it is in the interest of justice to consolidate the two cases. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18554/eng@2025-12-18 2

page 2 of 5

12. The Application was canvassed through written submissions. The Applicants led their submissions dated 11th November 2025, through M/s Nchoko & Co Advocates, and urged the court to allow their Application for consolidation. 13. The Plaintis/Applicants submitted that the only issue for determination is whether the court should exercise its discretion and consolidate the two cases. 14. The Plaintis/Applicants relied on Order 11 Rule 3(1)(h) of the Civil Procedure Rules (CPR), which empowers the court to consolidate cases for ecient use of judicial resources. They relied on the cases of Law Society of Kenya v Centre for Human Rights and Democracy and 12 others (2013) eklr and Nyati Security Guards and Services Ltd v Municipal Council of Mombasa (2004) eKLR. 15. The Plaintis/Applicants submitted that the suit property in both cases is the same, and the issues raised in the two cases are interconnected. The Applicants argued that separate hearings would lead to duplication of evidence, unnecessary costs, and a risk of inconsistent decisions. 16. In conclusion, the Plaintis/Applicants requested the court to allow the consolidation of ELC Case No. E004 of 2024 and ELC Case No. E008 of 2023, designate ELC No. E008 of 2023, as the lead le and make any other orders deemed just and expedient. They also sought for an award of costs, which they note is at the court's discretion under Section 27 of the Civil Procedure Act. 17. The 1st Defendant did not le his submissions stating in the court proceedings on 12th November 2025 that he is not opposing the application. 18. The 2nd Respondent led its written submission and raised two issues for determination: i. Whether the Applicants have made a proper case for consolidation of suits; ii. Whether the Application is an abuse of court process. 19. On whether the Applicants have made a proper case for consolidation of suits, the 2nd Respondent argued that the Applicants failed to establish a proper case for consolidation. They highlighted that the Plaintis/ Applicants had previously denied any connection between the two suits, ELCLC No. E004 of 2024 and ELCLC No. E008 of 2023, and now sought consolidation, which the 2nd Respondent deemed contradictory and disingenuous. 20. The 2nd Respondent emphasized that consolidation is a procedural tool to enhance eciency and should not be used to rectify inconsistent pleadings or procedural irregularities caused by a party's conduct. They cited the case of Law Society of Kenya v. Centre for Human Rights & Democracy & 12 others [2014] eklr, which established that consolidation should not confer undue advantage or cause injustice to any party. 21. On whether the Application is an abuse of court process, the 2nd Respondent submitted that the Applicants' Notice of Motion dated 9th October 2025, constitutes an abuse of court process. It argued that the Applicants deliberately failed to admit that the matters involved the same subject property to avoid the eect of an interlocutory judgment already entered against the 1st Respondent in the related matter. 22. The 2nd Respondent cited the case of Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), which dened abuse of court process as the dishonest use of legal proceedings to achieve an ulterior purpose, causing irritation, annoyance, or prejudice to the opposing party and hindering the ecient administration of justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18554/eng@2025-12-18 3

page 3 of 5

23. In conclusion, the 2nd Respondent urged the court to dismiss the Applicants' Notice of Motion, asserting that it was inconsistent with their earlier position, brought in bad faith, and intended to delay the orderly progress of the suit. 24. The above are the arguments for and against the instant Application for consolidation of the two matters being ELC NO E004 of 2024 and ELC NO.E008 of 2023. This application has been opposed by the 2nd Respondent, who averred that the Application is an abuse of the court process, since initially the Plaintis/ Applicants had vehemently denied that the two suits were related. It was its submissions that the plaintis cannot approbate and reprobate at the same time. 25. Both the Applicants and 2nd Respondent relied on the case of Law society of Kenya vs Centre for Human Rights & Democracy &12 others [2014]eklr on the essence of consolidation of suits, where the court held; “ 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 that opposes it.” 26. The Plaintis/ Applicants also relied on the case of Nyati Security Guards and Services Ltd vs Municipal Council of Mombasa [2004]eklr where it was held; “ Consolidation is a process by which two or more suits or matters are by order of the court combined or united and treated as one suit or matter. The main purpose of consolidation is to save costs, time and eort and to make the conduct of several actions more convenient by treating them as one action.” 27. The main issue herein for determination is whether the court should allow consolidation of the two suits or not. 28. It is trite that Consolidation of cases is done (Order 11, Rule 3) of the Civil Procedure Rules, and is a discretionary power of the court. Further, consolidation is a tool for justice and eciency, not a right; and the court balances convenience against potential prejudice. 29. Further, consolidating of cases is hinged on whether there are common questions of law/fact which arise or stems from the same transaction, and is aimed at judicial eciency and fairness, with courts considering expediency, preventing conicting judgments, saving costs, and ensuring justice. 30. The common issues to be considered in an application for consolidation are; Commonality of Issues, whether there is the existence of common questions of law or fact in the pending suits. Same Transaction/Series, the rights or reliefs sought must arise from the same transaction or a series of transactions. Expediency & Eciency, further, it must be expedient in the interest of justice for a joint trial to avoid multiplicity of proceedings and save time/costs. Avoid Conicting Judgments: it is evident that consolidation prevents contradictory decisions in similar matters. Fairness & Justice: the main interest of the court is to deliver justice eciently, ensuring parties are not unduly burdened. 31. For a court to allow or not to allow an application for consolidation, it must consider the above key aspects, which key aspects are; i. The suits involve the same parties, subject matter, or reliefs. ii. The evidence in one case would be relevant to the other. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18554/eng@2025-12-18 4

page 4 of 5

iii. To streamline evidence presentation and arguments. 32. The Applicants must establish that the two suits involve the same suit property and the transaction leading to the cause of action are the same, and that no one would suer prejudice if consolidation is allowed. 33. The application for consolidation is opposed by the 2nd Defendant/Respondent and the Applicants needed to avail sucient evidence to convince this court to exercise its discretion, and allow the said Application for consolidation. 34. The court has considered the application dated 9th October 2025, and the annextures thereto. though the Applicants alleged that the two suits have commonality and the suit property is the same, the proceedings for ELC NOE008 of 2023, were not annexed to the Application. This court cannot hold with certainty that the suit property is the same, and that the issues raised are the same. 35. Indeed, court can decline and or deny consolidation if such consolidation would cause confusion, embarrassment, or injustice to a party, if there are no common questions of law/fact, or if the suits require separate determinations, even if they stem from similar events, as consolidation is discretionary and aims for eciency, not to merge distinct legal rights. 36. Having not seen the pleadings in ELC NO E008 of 2023, this court cannot conrm whether, the two suits require separate determination or not. Consolidation being a discretionary issue, the court nds and holds that the Applicants herein have not established or convinced this court why it should use its discretion to allow consolidation of the two suits. 37. For the above reasons, the instant Notice of Motion Application is found not merited, and the same is dismissed entirely with costa being in the cause. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAROK THIS 18TH DAY OF DECEMBER 2025 L. GACHERU JUDGE Delivered online in the presence of Elijah Meyoki - Court Assistant Mr Lepore holding brief Nchoko for Plaintis/Applicants N/A for 1st Defendant Ms Mwendwa holding brief Kithinji for 2nd defendant/Respondent L. GACHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18554/eng@2025-12-18 5

page 5 of 5