https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7891

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **COMMERCIAL CASE NO. E011 OF 2025** **BENJAMIN MAOSA ………..………………………….…...…. PLAINTIFF** **AND** **PREMIER BANK KENYA LIMITED…………..……..1ST DEFENDANT** **STEPHEN KARANJA** **T/A DALALI AUCTIONEERS………………….…... 2ND RESPONDENT** **RULING** 1. Before this court for determination is an application dated 3rd September, 2025 seeking inter alia orders for consolidation of this suit with MAVOKO CMELC E008 of 2025 Eric Mwirigi Mbaabu versus Premier Bank & Another, on the ground that both matters relate to the same subject matter. 2. The application is premised supported on the grounds set out on the face of the application and by the supporting affidavit sworn by Claris Ajwang Ogombo, the Legal Services Manager of the 1st Defendant. She deponed that the Plaintiff herein filed is the chargor of L.R No. 26699/785 (Original No. 26699/428) (the suit Property) which was offered as security for loan facility but fell into arrears. Following default, the 1st Defendant instructed auctioneers to sell the property. 3. She states that the Plaintiff filed this suit challenging the auction and intended sale by the Defendants of the property, while in a separate matter namely Mavoko CMELC E008 of 2025 Eric Mwirigi Mbaabu Versus Premier Bank & Another, the successful bidder at the auction, filed suit after the sale collapsed due to his failure to complete payment. 4. The Applicant contends that both suits concern the same property and transaction, and that consolidation would avoid duplication of proceedings and multiplicity of suits as consolidating the suits will ensure the efficient use of judicial time and resources. She prays that the application be allowed as prayed. 5. The Plaintiff opposes the application, through a replying affidavit sworn on 25th November, 2025. While acknowledging that both suits concern the same suit property, the Plaintiff argues that the consolidation would cause substantial prejudice due to the differing nature of the claims. He maintains that his suit challenges the valuation of the subject property and seeking to impugn the public auction sale which was set on 14th February, 2025, whereas the other suit involves enforcement of ownership rights pursuant to a purported auction sale by the 1st Defendant bank on 17th September, 2024. The Plaintiff further contends that the matters arise from different transactions andtimelines, are handled by courts of distinct jurisdiction, and are represented by different parties and advocates. He submits that consolidation between the High Court and the Environment and Land Court is legally untenable, as each court exercises separate constitutional mandates. He suggests that, if necessary, one matter could instead be stayed to avoid conflicting decisions. 6. On 4th December, 2025, Eric Mwirigi Mbaabu was admitted into the present proceedings as an Interested Party and he opposed the present application for consolidation. 7. The present application was canvassed by written submissions. ***Applicant’s/Defendant’s submissions*** 1. The Applicants introduced the application and outlined the background, stating that the dispute arises from the exercise of 1st Defendant statutory power of sale over property known as L.R. No. 26699/785 (Original No. 26699/428) situated in Sabaki Area, Mavoko Municipality, Machakos County. They submitted that the Plaintiff, as chargor, defaulted on the loan repayment despite being served with statutory and courtesy notices, thereby entitling the Bank to realize the security. 2. The Applicants explained that the property was sold by a public auction conducted on 2nd October, 2024, where Eric Mwirigi Mbaabu emerged as the highest bidder offering Kshs. 12,000,000/= and executed the memorandum and conditions of sale. However, the sale later collapsed on 2nd January, 2025, due to failure to complete payment within the stipulated time. 3. It was submitted that following the collapse of the sale, the Plaintiff instituted the present suit challenging the legality and regularity of the auction and the intended subsequent sale while separately, Eric Mwirigi Mbaabu filed Mavoko CMELC E008 OF 2025 where he seeks extension of time to complete the purchase arising from the same auction transaction. 4. The Applicants argued that the two suits arise from the same transaction, involve the same subject matter and parties and raise identical questions of law and fact such that the determination of one matter would substantially affect the outcome of the other. Consequently, the Applicants contended that the parallel prosecution of the suits in different courts risked duplication of proceedings, wastage of judicial time and conflicting decisions, thereby necessitating transfer and consolidation. 5. The Applicants identified the key issue for determination as whether the court should transfer and consolidate Mavoko CMELC E008 of 2025 with the present suit. They relied on Section 18 of the Civil Procedure Act which empowers the High Court to withdraw and transfer suits pending before subordinate courts. 6. Reliance was placed on ***Kithita Ngeana v Mwaniki Kisume [2018] eKLR***where the Court emphasized that the burden lies on an applicant seeking transfer to establish a strong case. 7. On the principles governing consolidation, the Applicants cited the authorities of ***Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2004] eKLR;******Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others [2014] eKLR***and***Abdalla v Hassan & 15 Others (Civil Suit No. 210 of 2021) [2022] KEELC 13582 (KLR),*** where the Court stated that consolidation is appropriate where common questions of law or fact arise or where matters stem from the same transactions. They emphasized that consolidation advances the overriding objective of just, expeditious, proportionate, and affordable resolution of disputes in accordance with section 1A and 1B of the Civil Procedure Act. 8. The Applicants submitted that the present suits clearly satisfy the requirements for transfer and consolidation because they arise from the same auction transaction involving the same property and the same statutory power of sale exercised by the 1st Defendant. They argued that the reliefs sought are interrelated and mutually determinative such that the outcome in one matter would inevitably affect the other. 9. The Applicants argued that no prejudice would be suffered by any party as each would retain an opportunity to present its case fully. Conversely, they submitted that proceeding separately would risk inconsistent findings, increased costs and unnecessary parallel proceedings. 10. In conclusion, the Applicants submitted that both suits are closely connected, arise from the same auction process, and should be heard together. They therefore urged the Court to exercise discretion to order the transfer and consolidation in the interest of justice. ***Plaintiff’s submissions*** 1. The Plaintiffopposed the application for consolidation and identified three issues for determination as follows; whether the Application meets the legal threshold for consolidation; whether consolidation would promote efficient handling of the cases and whether differences in jurisdiction bars consolidation of the matters. 2. On the first issue, the Plaintiff submitted that the threshold for consolidation had not been met. Reliance was placed *on* ***Nyati Security Guards & Services Ltd v Municipal Council of Mombasa (2004) eKLR.*** He argued that consolidation is only appropriate where suits involve a common question of law or fact, or arise from the same transaction. He maintained that although both suits concern the same subject property, they arise from distinct cause of action. 3. Further reliance was placed on **Kinuthia v Ndiritu [2024] KEHC 5772 (KLR)** where the court declined consolidation on grounds that the suits, though related, arose from different causes of action and sought distinct reliefs. 4. The Plaintiff emphasized that Mavoko CMELC E008 of 2025 arises from an auction conducted on 17th September, 2024, where the purchaser allegedly defaulted after paying a deposit, thereby raising issues of breach of contract and possible forfeiture of the deposit. In contrast, the present suit challenges a subsequent auction scheduled for 14th February, 2025, focusing on alleged illegality and improper valuation, which prompted the Plaintiff herein to challenge the process. The Plaintiff argued that these are distinct transactions conducted at different times, involving different legal questions and remedies. 5. The Plaintiff further submitted that the reliefs sought in the two suits are fundamentally different. In CMELC E008 of 2025, the Plaintiff seeks injunctive reliefs and enforcement of alleged ownership rights, including leave to complete payment and specific performance of the contract. Conversely, the present suit is anchored on Section 97 of the Land Act, 2012, challenging the valuation of the property and the legality of the intended auction. The Plaintiff relied on ***Abdalla v Hassan & 15 Others [2022] KEELC 13582 (KLR)***to argue that consolidation should not be granted where it would cause prejudice or confer undue advantage. Additionally, he *cites* ***Kinuthia v Ndiritu******[2024] KEHC 5772 (KLR)*** to reinforce that where suits seek distinct reliefs and involve different parties, consolidation is inappropriate. 6. The Plaintiff contends that consolidation would prejudice him, particularly given the alleged undervaluation of the property and the outstanding debt, which would expose him to further financial liability. He relied on ***Kamau v Njoroge [2024] KEHC 1953 (KLR),*** to emphasized that consolidation must not prejudice any party. 7. On the second issue, the Plaintiff submitted that consolidation would not enhance efficient. While acknowledging that consolidation is intended to promote expeditious disposal of cases, he argued that the present matters involve different parties, advocates, and evidence, including expert testimony. 8. He further noted that consolidation would cause delays, particularly because CMELC E008 of 2025 had already been scheduled for hearing. Hence consolidation would necessitate recalling witnesses, reintroducing evidence, and amending pleadings, thereby complicating and prolonging the proceedings unnecessarily. He relied again on ***Nyati Security Guards and Korean United Church of Kenya v Seng Ha Sang (2014) eKLR*** to argue that consolidation is undesirable where it complicates rather than streamlines proceedings. 9. On the issue of jurisdiction, the Plaintiff submitted that consolidation is legally untenable because the suits are pending before courts of distinct constitutional mandates. He argued that the present suit falls within the High Court’s commercial jurisdiction, while CMELC E008 of 2025 concerns questions of ownership, use, and occupation of land, falling within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution. 10. Reliance was placed on ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1,*** *and* ***Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR)*** to argue that jurisdiction is fundamental and cannot be conferred by consent or procedural convenience. Consolidation, he argued, would improperly extend the High Court’s mandate. 11. In conclusion, the Plaintiff urged the Court to find that the Application dated 3rd September 2025 does not meet the legal threshold for consolidation, would cause prejudice and delay, and is jurisdictionally untenable. He prayed that the Application be dismissed with costs. ***Interested Party’s submissions*** 1. The Interested Party opposed the application for consolidation and identified the following issues for determination; whether consolidation is legally tenable between matters pending before courts of distinct and separate jurisdictions; whether the suits arise from the same transaction or series of transactions warranting consolidation; whether consolidation would promote judicial economy or occasion prejudice; and whether the reliefs sought can be conveniently be granted by a single court. 2. He outlined the background, stating that he participated in a public auction conducted by the 2nd Defendant on 17th September, 2024, where he emerged as the successful bidder and paid the requisite 10% deposit. However, he failed to complete payment within the stipulated period, prompting the bank to revoke the sale and proceeded to re-advertise the property for auction scheduled for 14th February, 2025. 3. Aggrieved by that decision, the Interested Party instituted CMELC E008 of 2025 at the Environment and Land Court at Mavoko seeking injunctive orders and leave to complete payment of the purchase price. Meanwhile, the Plaintiff herein filed the present suit challenging the later auction, leading to the current application for consolidation. 4. On jurisdiction, the Interested Party submitted that consolidation is legally untenable because the suits are pending before courts of distinct constitutional mandates. He argued that the High Court derives its jurisdiction from Article 165 of the Constitution while the Environment and Land Court is established under Article 162(2)(b) of the Constitution with exclusive jurisdiction over land related disputes. 5. He relied on ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1*** *and* ***Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR)***to emphasize that jurisdiction cannot be conferred by consent, or convenience. 6. On whether the suits arise from the same transaction, the Interested Party submitted that the two suits do not arise from the same transaction or series of transactions. That they stem from two different auctions one on 17th September, 2024, and the other on 14th February, 2025, and therefore involve distinct cause of action. He relied on ***Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2004] eKLR*** where the Court held that consolidation may only be ordered where common questions of law or fact arise or where the reliefs sought arise from the same transaction or series of transactions. 7. On the issue of whether consolidation would promote judicial economy or occasion prejudice, the Interested Party contended that consolidation would cause substantial prejudice and delay rather than promote efficiency. He pointed out that the Plaintiffs in the two suits are different individuals represented by different advocates, that consolidation would necessitate amendments to pleadings, filing of additional witness statements and recalling witnesses, thereby prolonging proceedings and defeating the purpose of consolidation. He further submitted that CMELC E008 of 2025 had already been scheduled for hearing. 8. The Interested Party submitted that consolidation would disadvantage him as his claim is grounded on equitable remedies such as specific performance and prevention of forfeiture, whereas the Plaintiff’s case is based on statutory provisions governing the exercise of the power of sale and valuation requirements. 9. On the nature of reliefs, the Interested Party argued that the remedied sought in the two suits cannot be conveniently granted by a single court. He maintained that the reliefs in CMELC E008 of 2025 fall within the specialized jurisdiction of the ELC, while the present suit involves commercial issues relating to the exercise of the statutory power of sale. 10. In conclusion, the Interested Party submitted that the Application for consolidation dated 3rd September, 2025, is misconceived and legally untenable and urged the Court to dismiss it with costs. ***Analysis and Determination*** 1. I have carefully considered the present application, the affidavits filed and submissions by all parties. In my view, the sole issue arising for determination; **Whether the Applicants have satisfied the legal threshold for transfer and consolidation of the suits.** 1. The principles governing consolidation are now well settled. In ***Law Society of Kenya v. Centre for Human Rights & Democracy & 12 others [2014] eKLR****,* the Supreme court stated that:- *“****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. In the matter at hand, this Court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues. In addition, the Court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed.”*** 1. In ***Abdalla v. Hassan & 15 Others (Civil Suit No.210 of 2021) [2022] KEELC 13582 (KLR) (5 October 2022) (Ruling),*** the court stated that:- *“****From these cases and precedents, the legal ratio and holdings are that, the essence of consolidation essentially are;*** ***(a)to facilitate the efficient and expeditious disposal of disputes and*** ***(b)to provide a framework for a fair and impartial dispensation of justice to the parties. At all costs and as a matter of principle, consolidation of cases should never be meant to confer any undue advantage upon the party nor should it be intended to occasion any disadvantage towards the party that opposes it.”*** 1. Similarly in ***Kamau v. Njoroge (Civil Appeal 6 of 2023) [2024] KEHC 1953 (KLR) (29 February 2024) (Ruling),*** where the court cited with approval the case of ***Prem Lala Nahata & Another v. Chandi Prasad Sikaria [2007] 2 Supreme Court Cases 551,*** where the Indian Supreme Court stated that:- *“****It cannot be disputed that the Court has the power to consolidate suits in appropriate cases... The main purposes of consolidation are to save costs, time, and effort, and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises when there are two or more matters or causes pending in court, and it appears to the court that common questions of law or fact arise in both or all the suits, or that the rights or relief claimed in the suits are in respect of, or arise out of, the same transaction or series of transactions. Alternatively, consolidation may be ordered for some other reason if it is deemed desirable****."* 1. Further, in ***Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2004] eKLR****,* the court held that:- *“****There are however situations where consolidation is undesirable like where in two action a plaintiff in one is a defendant in the other unless the claim in one is to be treated as a counterclaim in the other. The other situation where consolidation is undesirable is where the plaintiffs in two or more actions are represented by different advocates. In such situation the hearing will be longer than take long and the purpose of saving time will be defeated.”*** 1. It follows therefore, that consolidation may be ordered where there are common questions of law or fact, where the dispute, the rights or reliefs claimed arise out of the same transaction or series of transactions or where consolidation is otherwise desirable for the efficient administration of justice. The purpose of consolidation being to save costs, time and effort and to facilitate efficient disposal of disputes. 2. The Applicants argue that both suits arise from the same transaction that is, the attempted realization of the suit property and that separate proceedings risk conflicting decisions. On the other hand, the Plaintiff and the Interested Party maintain that the suits arise from distinct auctions held at different times and involve different causes of action and remedies. 3. Upon careful consideration of the pleadings and submissions placed before the court, I acknowledge that both suits revolve around the same property and stem from the exercise of the Bank’s statutory power of sale. However, it is equally evident that the causes of action and reliefs sought are distinct and filed before courts exercising distinct jurisdictions. 4. Further, in CMELC E008 of 2025, the Interested Party seeks equitable reliefs flowing from the alleged auction sale of 2nd October, 2024, including extension of time to complete payment and specific performance of the auction contract. In contrast, the present suit challenges the legality of the subsequent auction scheduled for 14th February, 2025, primarily on grounds of undervaluation and alleged breach of Section 97 of the Land Act. 5. These claims arise from separate though related transactions, and they involve different legal issues, evidentiary requirements and remedies. As held in ***Kinuthia v Ndiritu [2024] KEHC 5772 (KLR)*** consolidation is inappropriate where suits, though related, arise from distinct causes of action and seek different reliefs. 6. In the present case, the evidence required to determine whether the Interested Party is entitled to extension of time and specific performance of the auction contract is distinct from the evidence required to determine whether the intended February 2025 auction offended Section 97 of the Land Act through alleged undervaluation. Different witnesses, expert valuation evidence and legal arguments will be required. Further, the parties in the two suits are represented by different advocates and the Mavoko matter had already been fixed for hearing. Consolidation would therefore inevitably occasion delay, require amendment of pleadings and potentially prejudice the expeditious disposal of the matters. While this court appreciates the Applicants’ concern regarding the possibility of conflicting decisions, I am not persuaded that consolidation is the appropriate remedy in the circumstances of this case. The Court retains the power to issue appropriate case management directions to avoid embarrassment of conflicting outcomes without necessarily consolidating the suits. 7. Consolidation is a discretionary remedy and such discretion must be exercised judiciously and in a manner that advances the interests of justice. Having considered the nature of the disputes, the reliefs sought, the applicable legal principles and the potential prejudice likely to arise, I am not satisfied that the Applicants have established a sufficient basis to warrant the transfer and consolidation of the two suits. 8. I find that the Applicants, have failed to meet the threshold for transfer and consolidation. Accordingly, the Notice of Motion application dated 3rd September, 2025, is without merit and is hereby dismissed with costs to the Plaintiff and the Interested Party. 9. Orders accordingly. ***Delivered, Dated and Signed virtually this 4th day of June, 2026*** **RHODA RUTTO** **JUDGE** **In the presence of;** **Court Assistant: Wabwire** **Ms. Parseina for the Applicant** **Ms. Kemunto for the Defendant** **Ms. Kimathi holding brief for Mocha for interested party**