[2019] KEHC 7781 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 651 OF 2012

AIRTEL NETWORKS KENYA LIMITED..................PLAINTIFF

-VERSUS-

PETER WAHINYA MUIRURI.......................... 1ST DEFENDANT

ANTHONY OMARIBA OMWENGA...............2ND DEFENDANT

R U L I N G

1. This Ruling is one the Notice of Motion dated 30th October 2018 filed by Airtel Networks Kenya Limited (hereinafter referred to as Airtel). Airtel is the Plaintiff in this matter.

2. Airtel is a telecommunication network which is registered with the Communication Authority of Kenya as a branch of Bharti

Airtel International Netherland (BV). It has its offices in Nairobi.

3. Peter Wahinya Muiruri, the 1st Defendant, was a former employee of Airtel from 1st March to 1st October 2012. He was employed as the Head of Cash and Banking.

4. By the Notice of Motion before me Airtel seeks an order for consolidation of the case Nairobi HCCC No 1777 of 2018 Peter Wahinya Muiruri vs. Airtel Networks Kenya Limited with this present suit.

5. That application is supported by an affidavit of the Learned Advocate for Airtel, namely Steve Luceno.

6. In that affidavit Airtel stated that this present case was filed seeking, inter-alia for money allegedly obtained and/or siphoned by the 1st Defendant whilst he was in the employment of Airtel. Anthony Omariba Omwenga, the 2nd Defendant herein was sued as one of the person through whom the ‘siphoned’ money was channel through. There is judgment for Airtel against the 2nd Defendant.

7. There were criminal proceedings against both Defendants in respect to the loss of money suffered by Airtel. The 2nd Defendant was convicted while the 1st Defendant was acquitted.

8. During the pendency of this suit the 1st Defendant filed HCC No. 177 of 2018 Peter Wahinya Muiruri vs. Airtel networks Kenya Ltd.

9. There is no dispute that the case HCCC No 177 of 2018 filed by 1st Defendant is closely related to this suit.

10. In HCCC 177 of 2018 the 1st Defendant pleads he was employed by Airtel; that he was arrested and prosecuted for the loss of Airtel money; that this present suit was filed by Airtel against him and the 2nd Defendant; that Airtel obtained in this present, on 15th October 2012, orders which amongst other orders restrained him from transacting with his properties, motor vehicles, bank accounts and shares; and the 1st Defendant also pleaded that he was defamed by Airtel by publications made in the newspapers. The 1st Defendant then, in his final prayers in that HCCC No. 177 of 2018 sought the following prayers:

a) Damages for malicious prosecution.

b) Kshs. 3,654,353 being interest on funds which were held by Equity bank on the strength of freezing order issued in civil Case 651 of 2012 Airtel Networks Kenya Limited v Peter Wahinya Muiruri & Another.

c) Kshs. 4,969,51 interest on the deposit on Kshs. 3,200,000. 00 paid to Nextgen Office Suits Ltd. From the date of issuance of the freezing order in Civil case Number 651 of 2012 Airtel Networks Kenya Limited v Peter Wahinya Muiruri & Another.

d) Costs of this suit.

e) Interest at Court rates.

f) Any other or further relief that this honourable Court may deem fit to grant in favour of the Plaintiff.

11. It will be seen in the above prayers this present case, that is HCCC 651 of 2012, is integral part of 1st Defendant suit HCCC No. 177 of 2018. In view of that very clear indication I find it hard to accept the opposition raised by the 1st Defendant to the Notice of Motion that there is no common question of law or fact in the two cases.

12. It is worth referring to a decision of justice G. V. Odunga in the case REPUBLIC V WATER RESOURCES AUTHORITY (WRA) & GEMS MANAGEMENT LIMITED & OTHERS [2018] eKLRwhere he stated thus relying on another decision:

“HILTON WALTER NABONGO OSINYA & ANOTHER VS SAVINGS & LOAN (K) LIMITED & ANOTHER NAIROBI HCCC NO 274 OF 1998 Ringera, J (as he then was) held that:

“The whole point of consolidating suits is to enable common questions of law and facts to be tried together in the same forum with a view to saving judicial time and avoiding the possibility of conflicting decisions on the same issues by different Courts. A consolidated trial of two actions results in one common decree and there is no question of abandoning any of the suits.”

13. I am of the firm view that justice will best be served by hearing the two suits together. The appropriate order is that HCCC No. 177 of 2018 be consolidated and be heard together with this suit. In the consolidated suit HCCC No. 651 of 2012 shall be the lead file.

14. I therefore make the following orders:

a) This suit is hereby consolidated with Nairobi HCCC No. 177 of 2018 Peter Wahinya Muiruri Vs. Airtel Networks Kenya Limited. HCCC No. 651 of 2012 shall be the lead file.

b) An order is hereby issued for the transfer of HCCC 177 of 2018 from the High Court Civil Division to the Commercial & Tax Division of the Milimani Law Courts Nairobi. The Deputy Registrar of this Court shall extract this order to facilitate the said transfer.

c) At the reading of this Ruling, the Court will give a mention date for the Court to confirm the transfer as ordered in (b) above.

d) The costs of the Notice of Motion dated 30th October 2018 shall be in the cause of the consolidated suit.

DATED, SIGNED and DELIVERED at NAIROBI this 9TH day of MAY, 2019.

MARY KASANGO

JUDGE

Ruling ReadandDeliveredinOpen Courtin the presence of:

Sophie.................................... COURT ASSISTANT

............................................... FOR THE PLAINTIFF

………………………………FOR THE 1ST DEFENDANT

……………………………… FOR THE 2ND DEFENDANT