[2018] KEHC 7759 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CIVIL SUIT NO 25 OF 2017

CHESINENDE FARMERS COOPERATIVE SOCIETY LIMITED ....PLAINTIFF

VERSUS

JOEL K. BETT (being sued on his own behalf and on behalf of

CHESINENDE RURL CRAFT)&25 OTHERS............................DEFENDANTS

AND

SETTELEMENT FUND TRUSTEES………...................INTERESTED PARTY

RULING.

Introduction

1. This Ruling is in respect of the plaintiff’s application dated 9th March, 2017. The said application is brought pursuant to order 11 rule 3(h), order 40 rule 1, 2 and 3 of the Civil Procedure Act and sections 1A, 1B and 3A of the Civil Procedure Act.

2. The application seeks the following main prayers:

a) That this suit be consolidated with Kericho HC Petition No.4 of 2013 Edward Cheruiyot &22 Others V District Physical Planner Kericho & 4 Others

b) That pending the hearing and determination of this suit, Petition No. 4 of 2013 be stayed.

c) That pending the hearing and determination of this suit, the Defendants/Respondents by themselves, their agents, servants, employees, workers and or those claiming through or under them be restrained by way of temporary injunction from entering or carrying out further developments or constructions, charging, alienating or leasing any portion of the plots comprised in all that parcel of land known as KERICHO/CHESINENDE S.S/166.

3. The application is predicated upon the grounds stated in the Notice of Motion and the affidavit of Samuel Kipketer Lelei, the Chairman of the Plaintiff Society sworn on the 9th March, 2017.

4. A brief summary of the facts is that the 1st to 22nd Respondents filed this court Petition No. 4 of 2013 seeking the following reliefs:

a) A declaration that the approved Chesinende local Physical Development Plan No. R/1110/12/01 violates the fundamental rights of ownership of land as enshrined in the Constitution and is therefore illegal and ought not to be implemented to the extent that it affects the Petitioners’ rights over their various plots Nos 2, 3, 4, 6, 7, 10,13, 14, 15, 17, 19, 22, 24, 25, 26, 35, 47 and 62.

b) A declaration that the Petitioners’ rights to the properties they hold as per the former Physical Development Plan No. R/ 1110/94/01 is constitutionally guaranteed and it should not be taken away or altered to their detriment.

c) Conservatory orders restraining the 1st, 2nd, 3rd, 4th and 5th Respondents from implementing, approving and/or causing to be approved, implemented the approved Chesinende Physical Development Plan No. R/1110/01 until the determination of the suit herein.

d) Costs of this Petition.

5. Upon learning of the said Petition the applicant filed an application dated 6th August, 2016 seeking to be enjoined in the said Petition as an interested party. For some unexplained reason, the application was subsequently withdrawn after which the applicants filed the instant suit seeking the following reliefs:

a) “A declaration that the allocation to the 1st to 22nd Defendants of Plots within the Plaintiff’s land title No. KERICHO/CHESINENDE S.S/166 and which allocations are enumerated in paragraph 16(i)- (xxii) of the Plaint and the subsequent issue of a Certificate of Lease number KERICHO/ CHESINENDE TOWNSHIP/2 to the 4th Defendant was fraudulent and without authority hence null and void.

b) An order to compel the Land Registrar, Kericho to recall and cancel the said lease Certificate in respect of Title No. KERICHO/CHESINENDE/2 and the Commissioner of Lands to recall and cancel all letters of allotment issued to the 1st to 22nd Defendants in respect of the suit land no. KERICHO/CHESINENDE/166 as enumerated in paragraphs 16 of the Plaint and the Interested Party be at liberty to deal with the suit land i.e KERICHO/CHESINENDE S.S /166 in accordance with the previous charge agreement between the Plaintiff and the Interested Party

c) An order of eviction against the 1st to 22nd defendants

d) A perpetual injunction restraining the defendants nos 1-22 from entering, remaining on, developing, constructing, charging, alienating, leasing and/or in any way dealing with the suit land i.e KERICHO /CHESINENDE S.S /166 without lawful authority

e) Damages

f) Interest

g) Costs

h) Any other or further relief

In the instant suit the Plaintiff claims that it is the owner by purchase of the land title no. KERICHO/CHESINENDE S.S/166.

Applicant’s Submissions

6. Learned counsel for the applicant submits that the plots mentioned in prayer (a) of the Respondents’ Petition were created over the Applicant’s land through the Respondents’ illegal development plan No. R/1110/94/01 carried out in cahoots with the Town Council of Kipkelion.

7. He further submits that the subject matter of the Petition is the same as the instant suit and the defendants are the Petitioners in Petition No 4 of 2013 who are claiming ownership of the same parcel of land mentioned in this suit.

8. For the aforementioned reasons, he submits that since both the applicants and respondents are claiming ownership over the same parcel of land, the orders prayed for in the Petition cannot be granted before the question of ownership of land parcel no. KERICHO/CHESINENDE S.S/166 is resolved. In the circumstances he submits that it would be fair and just that the two suits be consolidated in order to effectually and completely adjudicate and settle all the questions over the ownership of land title number KERICHO/CHESINENDE S.S/166 and the resultant plots.

9. Counsel has relied on Mombasa H.C (ELC Case No. 183 of 2015 New Kenya Cooperative Creameries Ltd V Hassan Ali Mboga & 34 Others where Komingoi J held that consolidation would advance the overriding objective as envisaged under section 1A and 1B of the Civil Procedure Act.

10. With regard to the prayer for injunction, counsel submits that the applicant has demonstrated that it has a prima facie case with a probability of success as he contends that the allocation of the plots to the Respondents was null and void since the Commissioner of Lands had no powers to do so.

11. He further submits that if an injunction is not granted, the applicant shall suffer irreparable loss which cannot be compensated by damages.Learned counsel has cited a number of authorities in support of all the prayers sought.

Respondents submissions

12. The application is opposed by the Respondents.

13. Learned counsel for the 1st and 2nd Respondents has outlined the salient facts of Petition No. 4 of 2013. He states that the Petition was filed by the 2nd Respondent and 22 others (these others include the 3rd to 22nd Respondents herein) in respect of plots in KERICHO/CHESINENDE in accordance with Plan No. 98712/T/G/105A and Plan No. R/1110/94/1 which plots are now under the new plan No. R/1110/12/01. He further states that the 1st Defendant sold his land in plan No. 98712/T/G/105G to the 2nd Defendant in June 1994. He goes on to state that the 2nd Defendant owns other plots within Chesinende Trading centre Plan No. R/1110/94/1 which were given new numbers as indicated in plan No R/1110/12/01.

14. The 2nd Respondent later filed an application to withdraw the Petition through his advocate Mr Koske, and the court made a ruling to the effect that the said withdrawal only affected the 2nd Respondent herein and not the rest of the other 22 Petitioners who are now Respondents in this case.

15. Without elaborating the facts in this case for comparison, counsel submits that Petition No 4 of 2013 and the instant suit have no common issues of law and fact and should therefore not be consolidated. He further submits that a consolidation of the 2 suits would amount to misjoinder of parties as the 2nd Respondent withdrew from the Petition.

16. In summary, counsel for the 1st and 2nd Respondents submits that the two suits should not be consolidated for the following reasons:

i. The 1st and 2nd Respondents are not parties to Petition No. 4 of 2013.

ii. There is a conflict of interest with respect to the applicant and Stephen Kiprono Birir (the 2nd Respondent herein) and the applicant’s advocates (Tengekyon and Koske Advocates) as the 2nd Respondent had through the said firm of advocates sworn an affidavit in Petition No. 4 of 2013 on his own behalf and of behalf of the Respondents and later withdrawn it without consulting the other Respondents whom he was representing in the said Petition.

iii. Consolidation of ELC Case No. 25 of 2017 and Petition No 4 of 2013 would not only amount to a misjoinder but also an abuse of the process of the court and a waste of judicial time since Petition No. 4 of 2013 is deemed to be alive and has not been decided.

iv. The procedure for the allotment of land under Plan No 98712/T/G/105A was right and legal and hence consolidation would lead to repetition of the whole process hence delay and abuse of the court’s time as well as frustration of the parties.

17. Counsel also cited various authorities in support of the above-mentioned points.

18. Learned counsel for the 3rd to 22nd Respondents is more blunt in his submissions. He has pointed out that Mr Koske, Counsel for the applicant herein was the same counsel representing the 2nd Respondent in Petition No 4 of 2013. He states that Mr. Koske filed a Notice of Motion dated 8th August, 2016 seeking to enjoin the applicant herein as an interested party in the Petition before withdrawing the said application. The said application was supported by the affidavit of the 2nd Respondent herein, while in the instant suit Mr. Koske is acting for the plaintiff/ applicant against his client.

19. Secondly, counsel has submitted that the prayer for injunction cannot be granted as the court in Petition No. 4 of 2013 granted conservatory orders in respect of the suit property pending the hearing and determination of the suit which orders are still in force.

20. With regard to consolidation, he submits that the suits ought not to be consolidated as the cause of action is not the same. He states that in this case the plaintiff is challenging the allocation of the plots within land parcel number KERICHO/CHESINENDE S.S /166 to the defendants while in the Petition, the Petitioners have sued for alleged contravention of their fundamental rights under Articles, 2,19, 20,21, 22, 23, 40 and 60 of the Constitution.

21. The Petitioners are also seeking a declaration that plan No. R/1110/12/01 is in violation of their rights to own property and is therefore illegal and as such it ought not to be implemented.

22. He points out that one Samwel Lelei who was the chairman of the applicant swore an affidavit in on 6th April 2016 which contradicts the applicant’s claim in this case. He further submits that the applicant has not demonstrated what interest he has in the suit property as the same is said to be registered in the name of the Interested Party. He states the parties in this suit are different from the parties in the Petition as the plaintiff is not a party in the said Petition.

23. Lastly, he submits that the law applicable in the two suits is different as the law in this suit touches on the law on ownership of land while the Petition seeks to enforce Constitutional rights.

24. The 23rd to 26th Respondents did not file any submissions though they filed a Replying Affidavit sworn by one Samuel K. Thiong’o, the Chief Land Adjudication and Settlement Officer in which he depones that they oppose the applicant’s application for consolidation of the 2 suits as the suit property is currently registered under the Settlement Fund Trustee (Interested Party herein) and the applicant has no proprietary interest therein.

Issues for determination

25. I have considered the pleadings in the two suits, the application herein, the affidavits as well as the rival submissions and the following issues emerge for determination:

i. Whether this suit and Kericho HC Petition No 4 of 2013 should be consolidated

ii. Whether the applicant has met the threshold for the grant an interlocutory injunction, and if so if the same should be granted

iii. If the firm of Tengekyon & Koske Co Advocates should continue acting for the plaintiff in this matter in view of the alleged conflict of interest.

26. With regard to the first issue, the principles for consolidation of suits are set out in the case ofNyati Security Guards & Services Ltd V Municipal Council of Mombasa (2000) eKLR where the court held as follows:

“The situations in which consolidation can be ordered include where there are two or more suits for matters pending in the same court where:

a) Some common question of law or fact arises in both or all of them;

b) The rights or reliefs claimed in them are in respect of or arise out of the same transaction;

c) For some other reason, it is desirable to make an order for consolidating them;

27. The task before this court is therefore to compare two suits sought to be consolidated to determine whether the same involve common questions of law or fact, whether the reliefs sought arise out of the same transaction and whether it would be convenient and efficient to consider the same in a consolidated suit.

28. Even though the prayers sought in the two suits are different, it is clear in my mind that the parcels of land in Kericho Petition No. 4 of 2013 and the one referred to in the instant suit is the same. In the Further Amended Petition dated 8th April, 2014 the Petitioners claim to have been allocated various parcels of land in Chesinende Township. They are challenging the validity of the Chesinende Local Physical Development Plan No R/1110/12/01 on the grounds that it violates their fundamental right to own land as enshrined in the Constitution of Kenya. They seek conservatory orders to restrain the Respondents from implementing the said Plan.

29. In the said Petition, the Petitioners most of whom are members of Chesinende Farmers Cooperative Society are the Respondents in Kericho HCCC No. 25 of 2017 have sued the District Physical Planner, Kericho, the Director of Physical Planning, the County Government of Kericho, the Kericho County Surveyor, the National Land Commission and the Cabinet Secretary, Ministry of Lands.

30. In the instant suit, Chesinende Farmers Cooperative Society Company Limited has sued some of the Petitioners in the aforementioned Petition, the Commissioner of Lands, County Government of Kericho, National Land Commission and Attorney General claiming to be the owner of land parcel number KERICHO/CHESINENDE/166 and claiming that the said land was unlawfully fraudulently allocated to the 1st to the 22nd defendants by the Commissioner of Lands and the Kipkelion Town Council. The Plaintiffs therefore seek inter alia the following reliefs:

a) A declaration that the allocation to the 1st to 22nd Defendants of plots within the Plaintiff’s land title number KERICHO/CHESINENDE S.S/166 and subsequent issue of a certificate of leas number KERICHO/CHESINENDE TOWNSHIP/2 to the 4th Defendant was fraudulent and without lawful authority hence null and void.

b) An order to compel the Land Registrar, Kericho to cancel and recall the said certificate to title and cancel the letters of allotment issued to the 1st to 22nd defendants in respect of plots in the suit land i.e KERICHO/CHESINENDE S.S/166.

c) An order of eviction against the 1st to 22nd Defendants.

d) An injunction restraining 1st to 22nd Defendants from dealing with land parcel number KERICHO/CHESINENDE/166.

31. In arriving at the decision as to whether or not to consolidate two or more suits the court is enjoined to consider the following:

i. Do the same questions of law or fact arise in both cases?

ii. Do the rights or the reliefs claimed in the two or more cases arise out of the same transaction?

iii. Will any party be disadvantaged or prejudiced or will consolidation confer any undue advantage to the other party?

32. Granted that the prayers sought in the Petition are different from those sought by the plaintiff herein, it is common ground that both the plaintiff/applicant and the 1st to 22nd Respondents who are the Petitioners in the Petition are claiming ownership of the same plots mentioned in the Petition. As correctly submitted by counsel for the Plaintiff/applicant, the reliefs sought in this suit and the orders sought in the Petition cannot be justifiably granted before the question of ownership of title no. KERICHO/CHESINENDE S.S /166 (where the disputed plots are located) is resolved. It is important to note that the letters of allotment attached to the supporting affidavit of Stephen Birir in the Petition are some of the documents attached to the Plaintiff’s List of Documents.

33. Even though the Plaintiff herein is not a party to the Petition, I have noted from the proceedings that the Plaintiff had made an application to be enjoined in the Petition but the application was subsequently withdrawn. It is not clear to me why this was done. Had the Plaintiff been enjoined in the Petition, there would have been no need to file this suit. It is also not in doubt that the Petitioners are the majority of the Defendants in the instant suit.

34. The Respondents have not demonstrated what prejudice they will suffer if the suits are consolidated and in my view I see no such prejudice.

35. It is interesting that counsel for 3rd to 22nd Respondents has submitted that consolidation of the suits would result in repetition. In my considered view, consolidation would actually achieve the opposite effect by avoiding repetition.

36. From the foregoing, it is my finding that there are common questions of fact and law arising in the two suits and the reliefs claimed arise out of the same transaction. A strong case has therefore been made out for consolidation of the two suits. In arriving at this conclusion I am guided by the case of Joseph Okoyo V Edwin Dickson Wassuna (2014) eKLR where Nyamweya J faced with a situation where the issue of ownership of the suit property was common to the two suits though the parties were seeking different remedies, held that the suits be consolidated.

37. Similarly, inBenson G Mutathi V Raphael Gichovi Munene Kabutu & 4 others (2014) eKLR the court consolidated a suit commenced by way of Plaint and one filed by Originating Summons where one of the suits was part heard. In arriving at the decision to consolidate the suits, the court relied onLaw Society of Kenya V the Centre for Human Rights Supreme Court Petition No. 14 of 2013where the Supreme Court held as follows:

“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it”

38. Additionally, the court observed in the case of Korean United Church of Kenya & 3 Others V Seng Ha Sang (2014) eKLR; “Consolidation of suits is done for the purposes of achieving the overriding objective of the Civil Procedure Act, that is, for expeditious and proportionate disposal of civil disputes. 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.

39. In the instant case, the court’s time and resources would be saved if the two cases were heard together. The parties would also save costs as they would not need to make multiple trips to court over the same subject matter.

40. Regarding the prayer for injunction, it has been submitted on behalf of the applicant that the applicant has met the threshold in the case ofGiella V Cassman Brown & Co. Limited 1973 E.A 358. It has been submitted that the plaintiff has established a prima facie case with a probability of success as the title to the suit property is registered in the name of the Interested party with the applicant holding a purchaser’s/chargor’s interest over the same. It is further contended that this shows the said property is private property and the allocation of the plots to the Respondents was null and void since the Commissioner of Lands had no powers to do so.

41. Furthermore, it has been submitted that if an injunction is not granted, the suit property will be in danger of being wasted, damaged, alienated, charged or wrongfully dealt with in a manner that is inconsistent with the applicant’s interest therein hence the applicant shall suffer irreparable loss which cannot be compensated by damages.

42. The respondents have opposed the prayer for injunction. In particular, it has been submitted on behalf of the 3rd to the 22nd Respondents that an injunctive relief cannot be granted in this application as one was granted in the Petition. I must say that I find this submission rather interesting as it has been submitted for the same Respondents that he subject matter in the two suits are different. If that is true, how then would an injunction in the Petition bind the Respondents in this suit?

43. I have read the proceedings in the Petition and what I found was an order that the status quo to be maintained. This has however not been observed by the Respondents in the Petition prompting the Petitioners to cite them for contempt of a court order. I am of the view that unless the status quo in a particular case is clearly defined, the termsstatus quo is open to abuse.

44. In the circumstances, it is my finding that the applicant has met the threshold for the grant of injunctive relief. In arriving at this finding I am fortified by the case of Flex Construction Solutions Ltd V Verandel Court Limited (2012) eKLR where the court considered the observation of Ojwang JA (as he then was) in Suleiman V Amboseli Resort Limited (2004) 2KLR 589as follows:

“It is the business of the court, so far as possible to ensure that any transitional motions before the court do not render nugatory that ultimate end of justice. The argument that the law governing the grant of injunctive relief is cast in stone is not correct, for the law has always kept growing to greater levels of refinement as it expands to cover new situations not exactly foreseen before. Traditionally on the well accepted principles the court has had to consider the following questions before granting injunctive relief: (i) Is there a prima facie case with a probability of success? (ii) Does the applicant stand to suffer irreparable harm if the relief is denied? (iii) On which side does the balance of convenience lie?

Even as these must remain the basic tests, it is worth adopting a further albeit rather special and more intrinsic test which is in the nature of a general principle. The court in responding to prayers for interlocutory injunctive relief, should always opt for the lower rather than the higher risk of injustice”

In the instant case there would be a higher risk of injustice if an injunction was not granted as has clearly been demonstrated above.

45. The last question that this court is called upon to consider is the issue of conflict of interest with regard to Mr Koske, counsel for the Plaintiff herein. It has been submitted by Mr. Miruka, counsel for the 3rd to 22nd Respondents that by representing the Plaintiff in this case Mr. Koske is acting against the clients he acted for in the Petition. This is a weighty matter that touches on Mr. Koske’s integrity and professional conduct and one that requires Mr Koske to respond adequately before this court can pronounce itself on it. For these reasons, I am of the view that the parties who are aggrieved by Mr. Koske’s continued representation of the Plaintiff file a substantive application to enable him respond.

46. The upshot is that the application succeeds and I make the following orders:

(i) That this suit be consolidated with Petition No 4 of 2013 for purposes of hearing and determination. The hearing shall be conducted on the basis of the pleadings already filed subject to any subsequent amendments. The file for this suit shall be the lead file for purposes of filing any further documents and recording proceedings. The matter shall be mentioned within 30 days for the court to give directions on how to proceed.

(ii) The costs of this application shall be in the cause.

Dated, signed and delivered at Kericho this 21st day of February, 2018.

….......................

J. M ONYANGO

JUDGE

In the presence of:

1. Mr. Koske for the Plaintiff/Applicant.

2. Mr. Miruka for the 3rd – 22nd Defendants/Respondents.

3. Mr. Qeu for the 23rd & 26th Defendants/Respondents.

4. No appearance for the 1st & 2nd Respondents.

5. Court Assistant - Rotich