Mwinzi v Kamau & 4 others

d. That costs of this Application be provided for. 2. The Application is supported by the adavit of Dominic Njuguna Mbigi sworn on 22nd April 2026 and the grounds appearing on the face of the Application. 3. The Application is opposed by the Plainti/Respondent through Grounds of Opposition dated 22nd April 2026. Applicant's Case 4. The Applicant states that there are two suits concerning Land Reference Number 20168, Machakos County. The rst is Machakos ELC No. 18 of 2011, Joshua Mutemi Mwinzi vs Peter Kimani Kamau, Simon Wainaina Kimani, Georey Kariuki and Wandemi Developers Ltd, pending before this Court. The second is Machakos MCELC No. 21 of 2022, Wandemi Developers Ltd vs Joshua Mutemi and Joseph Musikali, pending before the Chief Magistrate's Court. 5. The Applicant is the 4th Defendant in ELC No. 18 of 2011 and the Plainti in the subordinate court proceedings. It states that it is the registered proprietor of LR No. 20168, having purchased the property in or about the year 2011 and being in possession thereof. It alleges that the Defendants in the subordinate court proceedings entered the property, attempted to encroach upon it and interfered with its possession. 6. The Applicant states that the two suits raise common questions concerning ownership, validity of title, possession, trespass, occupation and entitlement to injunctive relief. It contends that separate proceedings may result in conicting ndings and multiplicity of proceedings. 7. The Applicant contends that Section 18 of the Civil Procedure Act empowers this Court to withdraw and transfer the subordinate court proceedings. It proposes that they be consolidated with ELC No. 18 of 2011, with the latter being the lead suit and the pleadings in the subordinate court proceedings being treated as a counterclaim. It states that this course will save judicial time and litigation costs and occasion no prejudice to the parties. Respondent's Case 8. The Respondent opposes the Application on six grounds contained in the Grounds of Opposition dated 22nd April 2026. 9. The Respondent contends that Machakos MCELC No. E021 of 2022 became sub judice on 26th February 2026 when Wandemi Developers Limited was joined to ELC No. 18 of 2011. It further contends that the Applicant's own case establishes that the two suits concern the same subject matter and parties. 10. The Respondent states that it would be irregular to consolidate a matter which is sub judice and/or due for dismissal. It further contends that the Applicant is already a party to ELC No. 18 of 2011 and that its interests can be ventilated in that suit, rendering the subordinate court proceedings superuous. 11. The Respondent therefore urges the Court to exercise its supervisory jurisdiction and dismiss Machakos MCELC No. E021 of 2022 for being an abuse of the process of the Court. It also seeks the costs of the Application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6135/eng@2026-10-01 2

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Submissions 12. The Application was canvassed by way of written submissions. The Applicant led written submissions dated 21st July 2026. 13. The Applicant submits that this Court has jurisdiction and discretion under Section 18(1)(b) of the Civil Procedure Act to withdraw and transfer Machakos MCELC No. E021 of 2022 from the Chief Magistrate's Court. It relies on Kagenyi v Musiramo and Another [1968] EA 43 for the proposition that the power of transfer may be exercised where the suit was instituted before a court of competent jurisdiction. It submits that the subordinate court had jurisdiction when the suit was instituted. 14. On consolidation, the Applicant relies on Law Society of Kenya v Centre for Human Rights and Democracy and 12 Others [2014] eKLR and Nyati Security Guards and Services Ltd v Municipal Council of Mombasa [2004] eKLR. It submits that the two suits concern the same property and raise substantially similar questions of fact and law and that consolidation will save judicial time and litigation costs and avoid the possibility of conicting decisions. 15. On the objection based on sub judice, the Applicant submits that Section 6 of the Civil Procedure Act is intended to prevent parallel determination of the same dispute. It contends that the doctrine does not render the subordinate court proceedings a nullity or require their dismissal and that the transfer and consolidation sought would bring the proceedings before one court. 16. The Applicant submits that sucient grounds have therefore been shown for the withdrawal, transfer and consolidation of Machakos MCELC No. E021 of 2022 with ELC No. 18 of 2011. It prays that the latter be the lead suit and that the pleadings in the subordinate court proceedings be treated as a counterclaim. 17. The Respondent did not le written submissions. Its position, as set out in the Grounds of Opposition, is that the subordinate court proceedings are sub judice, that the Applicant is already a party to ELC No. 18 of 2011 and that its interests can be ventilated in that suit. It consequently urges that the subordinate court proceedings be dismissed as superuous and an abuse of the process of the Court. Issues For Determination 18. Having considered the Application, the supporting adavit, the Grounds of Opposition, the Applicant’s submissions, the law and authorities relied upon, the sole issue for determination is whether sucient cause has been shown to warrant the withdrawal and transfer of Machakos MCELC No. 21 of 2022 to this Court under section 18 of the Civil Procedure Act. 19. Before considering the applicable law, it is necessary to examine the pleadings in the two suits. The question of sucient cause turns on the subject matter, the parties and the questions arising for determination. 20. In Machakos ELC No. 18 of 2011, the Plainti is Joshua Mutemi Mwinzi. The Defendants are Peter Kimani Kamau, Simon Wainaina Kimani, Georey Kariuki, Wandemi Developers Limited and the Attorney General. The dispute concerns Land Reference Number 20168 situated within Machakos County. Wandemi Developers Limited is the 4th Defendant. 21. In Machakos MCELC No. 21 of 2022, Wandemi Developers Limited is the Plainti while Joshua Mutemi and Joseph Musikali are the Defendants. The Applicant pleads that it is the registered proprietor of LR No. 20168, having purchased the property in or about the year 2011, and that the Defendants entered the land, attempted to encroach upon it and interfered with its possession. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6135/eng@2026-10-01 3

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22. It is thus evident from the pleadings that the two suits concern the same property. There is also an overlap in the parties. Wandemi Developers Limited is a Defendant in the earlier suit and the Plainti in the subsequent suit, while Joshua Mutemi Mwinzi is the Plainti in the earlier suit and a Defendant in the subsequent suit. The claims in both proceedings raise questions concerning ownership, possession, trespass and the rights asserted over LR No. 20168. 23. The relationship between the two suits therefore raises the question whether the circumstances disclosed warrant the withdrawal and transfer of Machakos MCELC No. 21 of 2022. The power of this Court to withdraw and transfer proceedings from one subordinate court to another is provided for under Section 18 of the Civil Procedure Act. The section provides: “ 18. Power of High Court to withdraw and transfer case instituted in subordinate court (1) (2) 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. 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.” 24. The power conferred by section 18 is discretionary. Like all judicial discretion, it must be exercised judiciously and upon settled principles. The Court does not order transfer merely because another forum may appear more convenient to a party. The question is whether, having regard to all the circumstances of the case, transfer would better serve the interests of justice, promote the ecient administration of justice and avoid unnecessary expense or hardship. 25. The circumstances that guide the exercise of this discretion were considered in David Kabungu v Zikarenga & 4 others, Kampala HCCS No 36 of 1995 where Okello J stated that; “ Section 18 (1) (b) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo moto by https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6135/eng@2026-10-01 4

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the court without application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of the proceedings in another court is not sucient ground though it is a relevant consideration. As a general rule, the court should not interfere unless the expense and diculties of the trial would be so great as to lead to injustice. What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the plainti and leaving him to seek his remedy in another jurisdiction… it is well established principle of law that the onus is upon the party applying for a case to be transferred from one court to another for due trial to make out a strong case to the satisfaction of the court that the application ought to be granted. There are also authorities that the principal matters to be taken into consideration are, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship, and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the application must be refused… Want of jurisdiction of the court from which the transfer is sought is no ground for ordering transfer because where the court from which transfer is sought has no jurisdiction to try the case, transfer would be refused…” 26. In the present case, the Applicant has shown that two proceedings concerning the same parcel of land are pending before two dierent courts and that the claims in those proceedings are substantially connected. The continued prosecution of the suits separately would require the courts to determine overlapping questions concerning the same property and would expose the parties to the expense of separate proceedings. It would also leave open the possibility of inconsistent ndings on the rights asserted over the land. In my view, that would be an imprudent use of judicial resources. 27. The Applicant proposes that the subordinate court proceedings be transferred to this Court and consolidated with ELC No. 18 of 2011, with the pleadings in the subordinate court suit being treated as a counterclaim. That course also addresses the fact that Wandemi Developers Limited appears as Plainti in one suit and Defendant in the other. 28. The Respondent contends that the subordinate court suit became sub judice on 26th February 2026 when Wandemi Developers Limited was joined to ELC No. 18 of 2011. Section 6 of the Civil Procedure Act is intended to prevent the parallel trial of proceedings in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, or parties litigating under the same title. 29. The Respondent’s contention on sub judice underscores the need to avoid parallel determination of the same dispute before two courts. Section 6 of the Civil Procedure Act is intended to prevent such parallel proceedings and the possibility of conicting decisions. In the circumstances of this case, the fact that the same dispute is pending before two courts weighs in favour of having it determined by one court. 30. In the circumstances, the pendency of the same dispute before two courts weighs in favour of having it determined by one court. I am therefore satised that sucient cause has been shown for the exercise of the power under section 18 of the Civil Procedure Act. 31. The consequence of the transfer is that the Court must consider whether the proceedings should be consolidated. In Law Society of Kenya v Centre for Human Rights and Democracy & 12 Others [2014] eKLR, the Supreme Court stated that 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. Similarly, in Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2004] eKLR, the Court described consolidation as a process by which two or more suits are combined https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6135/eng@2026-10-01 5

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and treated as one action, principally to save costs, time and eort and to make the conduct of the proceedings more convenient. 32. Those considerations favour consolidation in this case. ELC No. 18 of 2011 is the earlier suit and shall accordingly be the lead suit. The claim pleaded by Wandemi Developers Limited in MCELC No. 21 of 2022 shall be placed before this Court as a counterclaim, with the necessary consequential pleadings to follow. 33. In the result, the Notice of Motion dated 22nd April 2026 is allowed in the following terms: a. Machakos MCELC No. 21 of 2022, Wandemi Developers Ltd v Joshua Mutemi and Joseph Musikali, is hereby withdrawn from the Chief Magistrate's Court and transferred to this Court for hearing and determination. b. Machakos MCELC No. 21 of 2022 shall be consolidated with Machakos ELC No. 18 of 2011, Joshua Mutemi Mwinzi v Peter Kimani Kamau & Others. c. Machakos ELC No. 18 of 2011 shall be the lead suit for purposes of hearing and determination of the consolidated proceedings. d. The pleadings in Machakos MCELC No. 21 of 2022 shall be treated as a counterclaim in the consolidated suit, and the parties shall le such consequential pleadings as may be necessary. e. The Deputy Registrar shall cause the original le in Machakos MCELC No. 21 of 2022 to be availed to this Court. f. The matter shall be mentioned before the Court for further directions on pleadings and hearing. g. Costs of the application shall be in the cause. Orders accordingly. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 1ST DAY OF OCTOBER, 2026. HON. J. N. KUYIONI JUDGE 01.10.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Court Assistant - Fabious. Mr. Mitto holding brief for Mr. Mugane for the Plainti. No appearance for the Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6135/eng@2026-10-01 6

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