County Government of Kwale v Pasini Investment Limited & another (Miscellaneous Application E018 of 2025) [2026] KEELC 2985 (KLR) (5 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENTAL AND LAND COURT** **AT KWALE** **MISCELLANEOUS APPLICATION NO. E018 OF 2025** **COUNTY GOVERNMENT OF KWALE.……………………………APPLICANT** * **VERSUS –** **PASINI INVESTMENT LIMITED……...……………….….1ST RESPONDENT** **MWARAPAYO A.M. WAMWACHAI………..………………2ND RESPONDENT** **RULING** 1. **Introduction** 2. This Honourable Court was called upon to determine the Notice of Motion application dated 23rd October 2025. It was instituted by *the County Government of Kwale*, the Applicant herein. The application was brought under the provisions of Articles 10, 50(1) and 159 of the Constitution of Kenya, Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Cap. 21 Laws of Kenya, and Orders 11 and 51 of the Civil Procedure Rules, 2010. 3. Upon service of the application, on 10th March 2026 *Pasini Investment Limited*, the 1st Respondent, filed a Replying Affidavit sworn by Giovanni Quadrilli. It vehemently opposed the application on the grounds that the suit sought to be transferred had been dismissed twice—first for non‑attendance on 13th July 2022, and subsequently for want of prosecution on 11th June 2025. Therefore no subsisting suit exists capable of transfer under the provision of Section 18 of the Civil Procedure Act, Cap. 21. The Respondent contended that the application was procedurally irregular, misconceived, and amounted to an abuse of the court process. 4. **The case by the Applicant** 5. The Applicant sought for the following orders: - 6. ***Spent.*** 7. ***THAT pending the inter parte hearing and determination of this application, and in order to preserve the subject matter and prevent prejudice to the parties, this Honorable Court be and is hereby pleased to grant an interim order staying all proceedings in the Magistrate’s Court at Kwale Land Case No.1 of 2022;County Government of Kwale – Versus - Pasini Investments Limited and Mwarapayo A.M. Wamwachai.*** 8. ***THAT the Honorable Court be and is hereby pleased to order the transfer of the suit pending before the Magistrate's Court at Kwale in Land Case No. 1 of 2022; County Government of Kwale – Versus - Pasini Investments Limited and Mwarapayo A.M. Wamwachai from the said subordinate court to the Environment and Land Court at Kwale for hearing and determination alongside the suits under the Test Suit being Kwale ELC Land Case No.140 of 2021; County Government of Kwale – Versus - United Insurance Company Limited and others.*** 9. ***THAT this Honourable Court be pleased to grant Leave to the Applicant to amend its pleadings in the matter at the trial Court to wit, Land Case No.1 of 2022 with corresponding Leave being granted to the other parties to amend their pleadings if they so wish together with orders issuing other pre-trial directions in the matter to enable compliance of parties herein for trial.*** 10. ***THAT Costs and incidentals of this application to abide the outcome of the suit.*** 11. The application was premised on the grounds, testimonial facts and averments by the 17 Paragraphed annexed supporting affidavit of KISIWA KOJA, an Advocate of the High Court of Kenya, duly appointed as the County Solicitor of the County Government of Kwale, the Applicant herein. The Deponent averred that: 12. He was well conversant with the matters in issue in the suit pending before the trial Court in Land Case No. 1 of 2022, and that he was duly authorized and therefore competent to swear the Affidavit. 13. On 26th May, 2017, the Applicant commenced a suit vide a Plaint dated 26th May, 2017 filed in the Environment and Land Court at ***“Mombasa being Civil Case No. 196 of 2017; County Government of Kwale – Versus - Pasini Investment Limited”***, seeking the following prayers: 14. ***Revocation of the Title to the parcel of land Kwale/Diani Complex/872 held by the Defendant and thereby extinguishing any rights the Defendant may have to the said parcel of land.*** 15. ***A permanent injunction restraining the Defendant from entering into, trespassing on, developing, building, constructing and/or erecting any permanent building and/or structure of any type on Kwale/Diani Complex/872.*** 16. ***A permanent injunction restraining the Defendant from transferring, selling, charging and/or dealing in any manner whatsoever with Kwale/Diani Complex/872.*** 17. ***A declaration by the Honourable Court that Kwale/Diani Complex/872 was encroaching on Kwale/Diani Complex/Parcel No. 33 and as a consequence an order for rectification of the parcel records at the Kwale County Land Registry and Survey Office.*** 18. ***Costs of the suit.*** 19. He annexed and marked as “CGK ‑ 1” was a copy of the Plaint dated 26th May, 2017. 20. He stated that upon the establishment of the Environment and Land Court at Kwale, the said suit was transferred to the ELC at Kwale and registered as ELC Land Case No. 98 of 2021. 21. By way of a notice of motion dated 10th December, 2021, the 1st Respondent moved the Honourable Court for the transfer of the above matter for hearing and determination in the Magistrate’s Court at Kwale for reasons that the Environment and Land Court lacked pecuniary jurisdiction since Kwale/Diani Complex/872, the subject matter of the suit, was valued at a sum of Kenya Shillings Two Million Two Hundred Thousand (Kshs. 2,200,000.00/=). The Affiant deponed that he annexed and marked as “CGK ‑ 2” was a copy of the said transfer application. 22. An order of transfer was issued by the Honourable Court and the case was transferred to the Chief Magistrate’s Court at Kwale and registered as Land Case No. 1 of 2022. 23. While the matter was pending hearing and determination before Land Case No. 1 of 2022, the same was dismissed for non‑attendance of the Applicant at a hearing of the suit on 13th July, 2022. 24. A Notice of Motion application dated 23rd September, 2022 was filed by the Applicant seeking to set aside the dismissal, which was allowed by the trial Court vide the ruling delivered on 15th May, 2024. The Affiant stated that he annexed and marked as “CGK ‑ 3” were copies of the said motion and ruling. 25. Following the delivery of the above ruling, the 1st Respondent filed an appeal recorded in Court as Kwale ELCCA E007 of 2024, which was heard and Judgment delivered on 23rd June, 2025 affirming the decision of the trial Court to set aside the dismissal orders. The Affiant deponed that he annexed and marked as “CGK ‑ 4” was a copy of the Judgment of the Honourable Court. 26. Apart from the suit in Land Case No. 1 of 2022, the Applicant had previously filed four other related suits in recovery of public land illegally excised from the property known as Kwale/Diani Complex/Parcel No. 33. The said suits were consolidated under a Test Suit and recorded as: 27. ***Kwale ELCC No. 140 of 2021 [Formerly Msa ELCC No. 187 of 2018]; County Government of Kwale – Versus - United Insurance Company Limited & Others (The Test suit);*** 28. ***Kwale ELCC No. 139 of 2021 [Formerly Msa ELCC No. 194 of 2017]; County Government of Kwale – Versus - George Ngure Kariuki & Others;*** 29. ***Kwale ELCC No. 56 of 2021 [Formerly Msa ELCC No. 195 of 2017]; County Government of Kwale – Versus - Building Fire Consultants Company Limited & Others;*** 30. ***Kwale ELCC No. E025 of 2022; County Government of Kwale – Versus - Pasini Investments Limited & Others (the 1st Respondent herein).*** 31. The Affiant deponed that he annexed and marked as “CGK ‑ 5” were copies of the pleadings filed in the above suits. 32. The above suits had a similar subject matter to the suit pending before the trial Court in Land Case No. 1 of 2022, being the land parcel LR. No. Kwale/Diani Complex/33. Further, the said related suits were pending hearing and determination in the Environment and Land Court at Kwale with the hearing scheduled to come up on 28th October, 2025. 33. It would be practical and time‑efficient to hear all of the above matters together, thereby avoiding the need to present the same evidence repeatedly and separately in each of the similar suits having the same subject matter. 34. Conducting the hearings jointly at the Kwale Environment and Land Court would eliminate the risk of conflicting decisions over the same subject matter by different Courts of Law in the Republic of Kenya, which might result in judicial embarrassment and ridicule. 35. The Respondents would not suffer any disadvantage or prejudice in the event the Honourable Court granted the orders for transfer of the suit herein, to wit Land Case No. 1 of 2022, for hearing and determination before the Environment and Land Court at Kwale. 36. Therefore, it was in the interest of justice, fairness, efficiency and public policy that the matter be transferred to the ELC at Kwale for hearing and determination along with the consolidated suits. 37. Such transfer would save judicial time, avoid duplication of evidence and ensure a uniform determination of all questions relating to Kwale/Diani Complex/33. 38. Prayed for the Honourable Court to grant the order sought by the Applicant in the application herein. 39. **Response to the Application by the 1st Respondent** 40. The 1st Respondent opposed the Notice of Motion Application dated 23rd October, 2025 though an 18 Paragraphed Replying Affidavit sworn by GIOVANNI QUADRELLI, on 10th March, 2026 wherein the Affiant deponed that:- 41. He was conversant with the facts in the matter and had authority to swear the affidavit. 42. He vehemently opposed the Applicant’s application dated 23rd October 2025. 43. He was informed by his advocate on record, which information he believed to be true, that when case ***“MCELC No. 1 of 2022 County Government of Kwale – Versus - Pasini Investments Limited and another”*** came up for full hearing in Court, the Plaintiff and his advocate did not appear and as a result the case was dismissed for non‑attendance on 13th July, 2022. 44. His advocate informed him, which information he believed to be true, that following the dismissal, the Applicant filed an application to set aside the order of dismissal, which was allowed and the suit reinstated by the lower court with conditions that the Applicant was supposed to abide by. The Affiant deponed that he annexed and marked as “GQ - 1” was a copy of the order issued by the Court on 15th May, 2024. 45. Notwithstanding the second opportunity granted by the Magistrates Court, the Applicant failed to prosecute the matter diligently or abide by all the conditions issued by the court on 15th May, 2024, and the case remained inactive for an extended period exceeding one year. 46. As a result of the Applicant’s continued inaction, despite the fact that the court had given directions/orders in the said suit which the Applicant did not abide by, ***“Kwale MCELC No. 1 of 2022 County Government of Kwale – Versus - Pasini Investments Limited”*** and another was dismissed for the second time, this time for want of prosecution on 11th June 2025. The Affiant stated that he annexed and marked “GQ - 2” was a copy of the order issued on 11th June, 2025 dismissing the suit for want of prosecution. 47. He was informed by his advocate, which information he believed to be true, that since the dismissal the Applicant had not filed any application to revive, reinstate or otherwise restore case Kwale MCELC No. 1 of 2022. 48. There was no live case to transfer or to be stayed and any attempt to do so was procedurally irregular, constituting an abuse of the court process, as the Applicant had failed twice to diligently prosecute the matter. 49. The Applicant’s current application seeking to transfer case Kwale MCELC No. 1 of 2022 to the High Court was fundamentally flawed, and there was no subsisting suit capable of being stayed or transferred under the provision of Section 18 of the Civil Procedure Act, Cap. 21. 50. Any attempts to amend pleadings in Kwale MCELC No. 1 of 2022 or even staying its proceedings or transferring the said file were incompetent, misconceived and constituted an abuse of the court process. 51. The Applicant had demonstrated no exceptional circumstances warranting transfer and the present application was therefore merely an attempt to circumvent the dismissal order. 52. He was informed by his advocate, which information he believed to be true, that the claim that this Court gave its order with regard to Kwale ***“ELCCA No. 007 of 2025 Pasini Investment Limited – Versus - County Government of Kwale”*** was misplaced, as the order was delivered after the lower court had already dismissed case Kwale MCELC No. 1 of 2022 for want of prosecution, rendering the Applicant’s application for transfer dated 23rd October, 2025 procedurally improper. At that point there was no pending case to be heard, stayed or transferred. 53. He had been advised by his advocate, which advice he believed to be true, that the Applicant could not rely on the High Court judgment in Kwale ELCCA No. 007 of 2025 dated 23rd June 2025 because it was overtaken by events, having been delivered after the dismissal of Kwale MCELC No. 1 of 2022 on 11th June, 2025. 54. Transferring the matter to the High Court would prejudice the Respondent who had continuously complied with court directions and acted diligently throughout, and would force him to re‑litigate a matter that had already been dismissed. 55. The Respondent had a right to finality and should not be subjected to repeated litigation for a claim that had previously been dismissed, not once but twice. 56. Kwale MCELC No. 1 of 2022 was a matter that had been in court for more than 10 years, having been filed by the Applicant in 2017, and it was in the interest of justice that the Honourable Court dismissed the application dated 23rd October, 2025 with costs. 57. The application dated 23rd October, 2025 was bad in law and had been made in bad faith, as the Applicant was fully aware that case Kwale MCELC No. 1 of 2022 had been dismissed for want of prosecution. 58. **Submissions** 59. On 12th March, 2025 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 23rd October, 2025 be disposed of by way of written submissions and all the parties complied. 60. Unfortunately, by the time of penning down this Ruling, the Honourable Court had not been able to access the submissions by any of the parties from nether the Judiciary CTS portal nor the ELC Registry. Nonetheless, the Honourable Court proceeded to deliver its Ruling on 5th May, 2026 on its own merit and as scheduled accordingly. 61. **Analysis and Determination** 62. I have carefully read and considered the pleadings herein and the relevant provisions of the Constitution of Kenya, 2010 and statures. In order to arrive at an informed, just and fair decision, the Honorable Court has framed the following issues for determination. 63. ***Whether Kwale MCELC No. 1 of 2022 is a subsisting suit capable of transfer under the provision of Section 18 of the Civil Procedure Act, Cap. 21.*** 64. ***Whether the Applicant has demonstrated exceptional circumstances warranting transfer and consolidation of the suit with Kwale ELCC No. 140 of 2021 (Test Suit).*** 65. ***Whether the Applicant is entitled to leave to amend pleadings and issue Pre ‑ Trial directions in Land Case No. 1 of 2022.*** 66. ***What orders should issue as to costs.*** ***ISSUE No. a). Whether Kwale MCELC No. 1 of 2022 is a subsisting suit capable of transfer under the provision of Section 18 of the Civil Procedure Act, Cap. 21.*** 1. Under this sub‑title, the main issue here is whether the civil suit ***“Kwale MCELC No. 1 of 2022”*** remains a live suit that can be transferred under the provision of Section 18 of the Civil Procedure Act, Cap. 21 Laws of Kenya. Section 18 donates power to this Court to transfer suits and states as follows: - **“Power of High Court to withdraw and transfer case instituted in subordinate Court** **(1) 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.** **(2) 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.** 1. This principle is reinforced by the Overriding Objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 which obliges courts to facilitate just, expeditious, and proportionate resolution of disputes. However, efficiency cannot override the requirement that a suit must exist in law before it can be transferred. 2. The Applicant anchors its case on two pillars:- * + - 1. The rein - statement order of 15th May, 2024, which revived the suit after its earlier dismissal for non‑attendance. 2. The Appellate Judgment in the Civil Suit “***Kwale ELCCA No. E007 of 2024***”, delivered on 23rd June, 2025, which affirmed the reinstatement and recognized the suit as alive. 3. On this basis, the Applicant contends that the suit is subsisting and capable of transfer to the ELC for consolidation with related matters involving Kwale/Diani Complex/Parcel No. 33. 4. The Respondent on the other hand annexed the dismissal order of 11th June, 2025 for want of prosecution, arguing that the suit was extinguished. He maintains that no application for reinstatement was filed thereafter, and therefore there is no live suit to transfer. The Respondent further contends that the appellate judgment of 23rd June, 2025 was overtaken by events, as it was delivered after the dismissal order, and could not revive a suit already terminated. 5. Kenyan jurisprudence provides clear guidance on the effect of dismissal and the limits of transfer jurisdiction. The power to transfer a suit is discretional vested onto the Court. The burden of providing sufficient reasons of the transfer rests with the Applicant. In the case of ***“David Kabungu – Versus - Zikarenga & 4 others Kampala HCCS No. 36 of 1995”***, the Court had the following to say on the circumstances under which the order to transfer suits may be granted:- ***“Section 18 (1) of the Civil Procedure Act, Cap. 21 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 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 sufficient ground though it is relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice or the suit has been filed in a particular court for the purposes of working injustice. What the court has to consider is whether the Applicant has made a case to justify it in closing doors of the court on which the suit is brought to the Plaintiff and leaving him to seek his remedy in another jurisdiction …….. It is a 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 expenses, interest of justice and possibilities to undue hardship and if the court is left in doubt as to whether under all the circumstances it is proper to order transfer, the duplication 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 could be refused……”*** 1. In the case of: ***“Mohammed & another (t/a SWS Aculaser Weight Loss Institute) – Versus - PBM Nominees Limited [2023] KEELC 19296 (KLR)”***, the Environment and Land Court held that once a matter is dismissed for want of prosecution, it ceases to exist unless revived through a formal application under the relevant provisions of Law and subsequent Court order. The Court stressed that judicial discretion cannot be exercised in a vacuum where no suit is pending. 2. Further in the case of:- ***“Mutua alias Kisowe Mutua – Versus - Kimatu (Land Case E007 of 2025) [2025] KEELC 8198 (KLR)”***, the Court reiterated that transfer under the provision of Section 18 Civil Procedure Act, cap. 21 cannot be ordered where no valid suit exists, emphasizing that jurisdiction to transfer is limited to pending suits. Similarly, in the case of:- ***“Baru & another – Versus - Gitahi & 3 others (Misc Application E047 of 2024) [2025] KEELC 3405 (KLR)”***, the Court dismissed an application for consolidation where the underlying matter had already been struck out, underscoring that consolidation pre - supposes subsistence of suits. 3. These authorities converge on the principle that dismissal for want of prosecution terminates proceedings unless reinstated by a competent application. 4. The Court notes that the chronology of events reveals a procedural conflict in that the reinstatement order of 15th May, 2024 revived the suit. The Appellate Judgment of 23rd June, 2025 affirmed reinstatement. However, the dismissal order of 11th June, 2025 for want of prosecution post‑dates the reinstatement and precedes the Appellate Judgment. 5. The Appellate Judgment, though favorable to the Applicant, was delivered after the dismissal. Unless it specifically set aside the dismissal of 11th June 2025, the appellate decision cannot revive a suit already extinguished. The Applicant has not demonstrated that the dismissal was vacated or that a fresh reinstatement application was filed. 6. The provision of Sections 1A(1) of the Civil Procedure Act, Cap. 21 and 3 of the Environment & Land Act, No. 19 of 2011 provides that the Over - riding Objective of the Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. Section 1B(1) of the said Act provides as follows:- **“For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims-** **(a) the just determination of the proceedings;** **(b) the efficient disposal of the business of the Court;** **(c) the efficient use of the available judicial and administrative resources;** **(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and** **(e) the use of suitable technology:”** 1. The provision of Article 165 (6) of the Constitution of Kenya, 2010 further gives the High Court Supervisory jurisdiction in the following terms:- **“(6) The High Court has supervisory jurisdiction over the subordinate Courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior Court.”** 1. The provision of Article 162(2) (b) of the Constitution on the other hand empowers Parliament to “establish Courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land.” In this regard and pursuant to Article 162(3) or the Constitution, Parliament enacted the Environment and Land Court Act, Act No. 19 of 2011. The provision of Section 13 of the Environment and Land Court Act outlines the jurisdiction of the Environment and Land Courts as follows:- **(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.** **(2) In exercise of its jurisdiction under Article 162 (2)(b) of the Constitution, the Court shall have power to hear and determine disputes-** **a) Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** **b) Relating to compulsory acquisition of land;** **c) Relating to land administration and management;** **d) Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** **e) Any other dispute relating to environment and land.** 1. Under the provision of Sections 17 and 18 of the Civil Procedure Act, Cap. 21 upon an application by a party, or on its own motion, the High Court may transfer the suit to another sub - ordinate Court with territorial jurisdiction, when justice of the case demands such action. It is also instructive that if no objection as to place of suing is raised in the subordinate Court in the first instance, it cannot be raised on appeal unless there has been a consequent failure of justice – Section 16. 2. In the case of: ***“Hangzhou Agrochemicals Industries Limited – Versus - Panda flowers Limited [2012] eKLR”*** the Court held: - ***“……In my view, which view I gather from authorities and from the law, the Court should consider such factors as the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice, the expense which the parties in the case are likely to incur in transporting and marinating witnesses, balance of convenience, questions of expense, interest of justice and possibilities of undue hardship. 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. Being a discretionary power, the decision whether or not to exercise it depends largely on the facts and circumstances of a particular case.”*** 1. Guided by the above authorities, in a nutshell, the Court finds that the Civil case of “***Kwale MCELC No. 1 of 2022”*** was dismissed for want of prosecution on 11th June 2025 and has not been reinstated thereafter. Consequently, there is no subsisting suit capable of transfer under the provision of Section 18 of the Civil Procedure Act, Cap. 21. ***ISSUE No. b). Whether the Applicant has demonstrated exceptional circumstances warranting transfer and consolidation of the suit with Kwale ELCC No. 140 of 2021 (Test Suit)*** 1. Under this sub ‑ title, the Court must determine whether the Applicant has shown exceptional circumstances that justify transfer of Kwale MCELC No. 1 of 2022 to the Environment and Land Court at Kwale for consolidation with Kwale ELCC No. 140 of 2021 (Test Suit). The provision of Section 18(1)(b)(i) Civil Procedure Act, Cap. 21 empowers the High Court (and by extension the Environment and Land Court under the provision of Article 162(2)(b) of the Constitution) to withdraw any suit pending in a subordinate court and transfer it to itself for trial. The jurisdiction is supervisory and discretionary, exercised only where a suit is pending. 2. Further, the provision of Order 11 Civil Procedure Rules, 2010 provides for case management, including consolidation of suits, to avoid multiplicity of proceedings and to ensure efficient disposal of matters. While the provision of Sections 1A and 1B Civil Procedure Act, Cap. 21 and Section 3 of the ELC Act, No. 19 of 2011 enshrine the overriding objective of expeditious, proportionate, and affordable resolution of disputes, requiring courts to facilitate just determination of matters while avoiding undue delay. 3. Thus, transfer and consolidation are not automatic rights but discretionary remedies exercised to advance efficiency, avoid conflicting decisions, and serve the interests of justice. 4. The Applicant contends that the suit concerns recovery of public land excised from Kwale/Diani Complex/Parcel No. 33, the same subject matter as the consolidated suits under the Test Suit. Consolidation would avoid duplication of evidence, save judicial time, and eliminate the risk of conflicting judgments. The Respondents would not suffer prejudice, as the matters are already intertwined with the consolidated suits. Public interest in recovery of illegally excised land justifies consolidation to ensure uniformity of decisions. 5. The Respondent on the other hand maintained that the suit has been dismissed twice and is not subsisting; hence, there is nothing to transfer. Even if consolidation were possible, reopening a dismissed matter would prejudice the Respondent’s right to finality. The Applicant has failed to diligently prosecute the matter, and transfer would amount to abuse of process. The appellate judgment relied upon by the Applicant was overtaken by events, as it was delivered after the dismissal of 11th June, 2025. 6. I take note that Courts have consistently emphasized that consolidation and transfer are exceptional remedies, not automatic entitlements. In the case of:- ***“Mutua alias Kisowe Mutua – Versus - Kimatu (Land Case E007 of 2025) [2025] KEELC 8198 (KLR) (27 November 2025) (Ruling)”*** the Honourable Court opined itself that: ***“19.The second issue for determination is whether the suit herein ought to be consolidated with Makueni CM ELC E037 of 2024. In the case of JAN BOLDEN NIELSEN – Versus - HERMAN PHILIPUS STEYN & 2 others [2012] eKLR the Court discussed purpose of consolidation at length in the following terms: -*** ***“Consolidation of suits is done under the inherent powers of the Court and for purposes of achieving the overriding objective of the Civil Procedure Act; that is for expeditious and proportionate disposal of civil disputes. Therefore, the main purpose of consolidation of suits is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. However, such consolidation can only be ordered within known parameter of the law.”*** 1. The principles to consider in an application for consolidation of suits were set out in the case of:- ***“Nyati Security Guards & Services Limited – Versus - Municipal Council of Mombasa [2004] eKLR”*** wherein the following factors were enumerated: - ***“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.”*** 1. The Applicant has demonstrated that the subject matter of Land Case No. 1 of 2022 overlaps with the consolidated suits under the Test Suit. In principle, consolidation would promote efficiency, consistency, and avoidance of conflicting decisions. However, the jurisprudence above makes clear that consolidation presupposes the existence of a valid, pending suit. Since Kwale MCELC No. 1 of 2022 was dismissed for want of prosecution on 11th June, 2025 and has not been reinstated, the Applicant cannot rely on the provision of Section 18 of Civil Procedure Act. Cap. 21 to transfer a non ‑ existent suit. The Appellate Judgment of 23rd June, 2025, though favorable, was delivered after the dismissal and did not expressly revive the suit. 2. Thus, while the Applicant’s policy arguments on efficiency and avoidance of conflicting decisions are persuasive, they cannot override the statutory requirement that only pending suits may be transferred and consolidated. 3. Based on the foregoing, the Court holds that the Applicant has not demonstrated exceptional circumstances warranting transfer and consolidation of Kwale MCELC No. 1 of 2022 with Kwale ELCC No. 140 of 2021 (Test Suit). The absence of a subsisting suit is fatal to the application, and consolidation cannot be ordered in respect of a matter that has already been dismissed. ***ISSUE No. c). Whether the Applicant is entitled to leave to amend pleadings and issue Pre ‑ Trial directions in Land Case No. 1 of 2022*** 1. Under this sub‑title, the Court must determine whether the Applicant can be granted leave to amend pleadings and issue Pre ‑ Trial directions in Kwale MCELC No. 1 of 2022. The law on amendment of pleadings is well settled. Under the provision of Order 8 Rule 3 of the Civil Procedure Rules 2010 provides for amendment of pleadings with leave of the court as follows: **“ (1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the Court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”** 1. The provision of Order 8 rule 5 of the Civil Procedure Rules, 2010 provides as follows: - **“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any documents to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.”** 1. The provision of Order 11 of Civil Procedure Rules, 2010 empowers the Court to issue pre‑trial directions to facilitate case management, including amendment of pleadings, discovery, consolidation, and framing of issues. However, these provisions presuppose the existence of a pending suit. Once a suit has been dismissed, struck out, or otherwise terminated, there is no platform upon which amendments or pre‑trial directions can be issued. 2. The court has the power to amend pleadings which power can be exercised at any stage of the proceedings before Judgment as per **Bullen and Leake & Jacob's Precedents** **of Pleading, 12thEdition,** which provides as follows concerning amendment of pleadings: **“…power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action…”** 1. Similarly, in **Halsbury’s Laws of England, 4th Ed. (re-issue), Vol. 36(1) at paragraph 76*,***state the following about amendments of pleadings: - **“…The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion. …. The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…”.** 1. The Court of Appeal outlined the relevant guiding principle on amendment of pleadings in the case of:- ***“Central Kenya Limited – Versus -Trust Bank Limited & 5 others [2000] eKLR”*** as follows: ***“that a party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.”*** 1. In the case of:- ***“Eastern Bakery – Versus - Castelino (1958) 1 EA 461 (CAK)”***, where the Court held that:- ***“Generally speaking, this court will not interfere with the discretion of a judge in allowing or disallowing an amendment to a pleading, unless it appears that in reaching his decision he has proceeded upon wrong materials or a wrong principle.”*** 1. The court further held: - ***“It will be sufficient, for purposes of the present case, to say that amendments to pleadings sought before hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs….the court will not refuse to allow an amendment simply because it introduces a new case…..but there is no power to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit…the court will refuse leave to amend where the amendment would change the action into one of a substantially different character…or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment e.g by depriving him of a defence of limitation accrued since the issue of the writ…the main principle is that an amendment should not be allowed if it causes injustice to the other side.”*** 1. The jurisprudence is clear that amendments should generally be allowed if they are made in good faith, do not introduce a wholly new or inconsistent cause of action, do not prejudice the other party in a manner incapable of compensation by costs, and are necessary to enable the Court to pronounce on the substantive issues. 2. The Applicant’s request for leave to amend pleadings presupposes that Land Case No. 1 of 2022 is pending. However, as established earlier, the suit was dismissed for want of prosecution on 11th June, 2025 and has not been reinstated. In line with the authorities cited, amendment cannot be granted in a non‑existent suit. 3. Even if the Court were to consider the Applicant’s efficiency arguments, the Respondent’s right to finality and protection from repeated litigation outweighs the Applicant’s request. Allowing amendment in a dismissed matter would amount to reviving litigation through the back door, contrary to the principles in the authorities above. 4. The Court finds that the Applicant is not entitled to leave to amend pleadings or issue pre‑trial directions in the civil case “***Kwale MCELC No. 1 of 2022”***, as the suit is not subsisting. Any such orders would be incompetent and contrary to established jurisprudence. ***ISSUE No. d). What orders should issue as to costs.*** 1. Under this sub‑title, the Court must determine the appropriate orders on costs in light of the application and the responses thereto. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. 2. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. 3. See the cases of:- ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 4. This very Court have well stated in previous precedence and most especially in the case of:- ***“Sagalla Lodge Limited – Versus - Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”***, (LL. Naikuni J) that: ***“58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.*** ***The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintiff has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.”*** 1. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 2. In the present matter, the Applicant’s Notice of Motion application dated 23rd October, 2025 has been found incompetent for lack of a subsisting suit capable of transfer, absence of exceptional circumstances warranting consolidation, and inability to amend pleadings in a dismissed matter. The Respondent has successfully opposed the application and demonstrated that the suit was dismissed for want of prosecution. 3. Given these findings, the Respondent is the successful party. No exceptional circumstances have been shown to justify departure from the general rule under Section 27 Civil Procedure Act. The Applicant, having failed to prosecute its case diligently and having filed an incompetent application, must bear the costs of the present proceedings. 4. Therefore, the Court finds that the appropriate order is that costs of the application dated 23rd October 2025 shall be borne by the Applicant, County Government of Kwale. 5. **Conclusion and Disposition** 6. In long analysis, the Honourable Court has carefully considered and weighed the conflicting parties’ interests as regards the balance of convenience, the Over - riding Objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and the jurisprudence guiding transfer, consolidation, and amendment of pleadings. The Court has also taken into account the principles enunciated in the various authorities used herein all of which underscore that transfer and consolidation presuppose the existence of a subsisting suit, and that amendments cannot be granted in extinguished proceedings. 7. Having said that much, the Court finds that the civil case of:- “***Kwale MCELC No. 1 of 2022”*** was dismissed for want of prosecution on 11th June 2025 and has not been reinstated. Consequently, there is no subsisting suit capable of transfer under Section 18 of the Civil Procedure Act, nor can the Court grant leave to amend pleadings or issue pre‑trial directions in a matter that is not pending. The Applicant has therefore failed to demonstrate exceptional circumstances warranting transfer and consolidation with Kwale ELCC No. 140 of 2021 (Test Suit). In a nutshell, I proceed to order the following:- 8. **THAT the Notice of Motion application dated 23rd October 2025 be and is hereby found to be unmeritorious & incompetent thus dismissed accordingly.** 9. **THAT there shall be no transfer or consolidation of Kwale MCELC No. 1 of 2022 with Kwale ELCC No. 140 of 2021 (Test Suit), as the former is not subsisting.** 10. **THAT the Applicant is not entitled to leave to amend pleadings or issue pre‑trial directions in Kwale MCELC No. 1 of 2022.** 11. **THAT costs of the application dated 23rd October 2025 shall be borne by the Applicant, in line with Section 27 of the Civil Procedure Act and the principle that costs follow the event.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS ………5TH ….……DAY OF ……MAY..……..2026.** **……………………………….** **HON. MR. JUSTICE L. L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** * + - * 1. Mr. Daniel Disii, the Court Assistant. 2. M/s. Robi Gimase Advocate holding brief for Mr. Kithome Advocate for the Applicant. 3. No appearance for the 1st & 2nd Respondents