Forward Travellers Sacco Limited v Baraka Parking Agencies Limited

5. He deponed that the Applicant’s earlier application dated 17C4C2023 had been dismissed on 23C7C2024, yet the present application was only filed on 10C4C2025, almost a year later, without any explanation for the delay or indication of when the Applicant became aware of the dismissal. He contended that the orders sought were discretionary and that neither the Applicant nor their counsel had explained their non-attendance at the hearing or the prolonged delay in seeking reinstatement. 6. He further argued that reinstating the application would offend the overriding objectives of the court and prejudice the Respondent’s right to expeditious disposal of cases. He added that the reinstatement would also unfairly revive an application seeking recognition and enforcement of an illegal arbitral award, which would deprive the Respondent of its right to use and occupy the leased property. He maintained that the consolidation of the two suits did not prevent the court from hearing them separately. 7. He therefore urged the court to dismiss the application with costs. 8. The Applicant filed a further affidavit sworn on 2C6C2025 by Esther Waithira Kanagau, its Chief Executive Officer. 9. She deposed that the Applicant filed the present suit seeking recognition of an arbitral award issued in its favour, while the Respondent had filed HCCOMMA E041 of 2023 – Baraka Parking Agencies v Forward Travellers Sacco Limited seeking to set aside the same award. 10. She stated that on 6C7C23, Justice Mabeya ordered the consolidation of the two matters, designating HCCOMMA E041 of 2023 as the lead file. The matter proceeded under that file, and the Respondent’s application dated 31C7C23 was pending ruling, which was eventually delivered on 26C3C25. The ruling, however, was delivered without notice and in the absence of the parties, and the Applicant’s advocates only discovered on 1C4C25 that the application had been dismissed for nonattendance. 11. She explained that the advocates had actively participated in the proceedings and were never served with any notice to show cause, hence their absence. She maintained that the dismissal was erroneous since the matters had been consolidated and the dismissed application could not have been heard separately. She further noted that it was unclear how the suit was later separated from the consolidated file. 12. The deponent refuted the Respondent’s claim that it took the Applicant a year to learn of the dismissal, stating that the Applicant moved the court immediately upon discovery. She averred that failure to reinstate the application would cause the Applicant great prejudice and loss of Kshs. 69,150,000 plus costs and interest, while the Respondent would suffer no prejudice as its own suit is to be determined first. She concluded that justice should be administered without undue regard to procedural technicalities and urged the court to reinstate the application. Analysis and determination. 13. The Applicant and Respondent filed written submissions dated 16C6C2025 and 23C6C2025, respectively. I have considered the same together with the pleadings filed by the parties. The sole issue for determination is whether the court should reinstate the Applicant’s suit. 14. The Applicant filed the present suit seeking to recognize and enforce an arbitral award issued in its favour. At the same time, the Respondent filed a separate suit Hccomma E041 Of 2023 Baraka Parking Agencies V Forward Travellers Sacco Limited seeking to set aside the same arbitral award. 15. On 6C7C2023, Mabeya J issued an order consolidating the two matters and directing HCCOMMA E041 OF 2023 to be the lead file. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16566/eng@2025-10-30 2

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16. The record indicates that the present suit was later dismissed by this court on 23C7C2024 for lack of attendance. 17. Consolidation of suits was aptly described by the court in Nyati Security Guards & Services Ltd Vs. Municipal Council Of Mombasa [2004]eKLR defined consolidation as follows: “ Consolidation is a process by which two or more suits or matters are by order of court combined or united and treated as one suit or matter. The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where:- 1. some common question of law or fact arises in both or all of them; or 2. the rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or 3. for some other reason it is desirable to make an order for consolidating them.” 18. Further in Law Society Of Kenya Vs. Centre For Human Rights & Democracy & 12 ORS [2014] eKLR the judges enunciated the general principles to be applied when considering consolidation as follows: “ The essence of consolidation is to facilitate the efficient 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 the party that opposes it.” 19. It is clear that the present suit was consolidated with HCCOMMA E041 OF 2023 as the two matters related to the same arbitral award. 20. It must have been in error, therefore for the court to dismiss the present suit when it had already been consolidated with another matter, which was the lead file. This means that any proceedings and directions in this suit could only be issued in HCCOMMA E041 OF 2023. 21. Section 3A of the Civil Procedure Act empowers this court to make such orders as may be necessary for the ends of justice. This is a case whereby the Applicant is seeking to enforce an award issued in its favour while the Respondent seeks to set it aside. I am of the view that the Applicant would face great prejudice if its application to recognize the award is not determined on its merits. 22. As such, I order the reinstatement of the present suit and direct that the same is heard and determined within the suit HCCOMMA E041 OF 2023 as earlier directed by the court. 23. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 30 TH OCTOBER 2025 ADO MOSES JUDGE In the presence of: CCA – CCMosesCC . https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16566/eng@2025-10-30 3

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