https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4733

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC NO. E035 OF 2025** **COUNTY GOVERNMENT OF** **TRANS-NZOIA---------------------------------PLAINTIFF/RESPONDENT** **VERSUS** **ISAIAH WANYONYI &** **53 OTHERS-----------------------------------DEFENDANTS/APPLICANTS** **RULING** 1. The 1st applicant in this case filed an application dated **9/3/2026** seeking the following judicial orders: 2. **THAT this Honourable Court be pleased to consolidate ELC Case No. E035 of 2025 - County Government of Trans Nzoia vs Isaiah Wanyonyi & 53 Others and ELC Case No. 113 of 2018 - Isaiah Wanyonyi & 53 -vs- County Government of Trans Nzoia, for purposes of hearing and determination.** 3. **THAT ELC Case No. 113 of 2018 be designated as the lead file (or such file as the court may direct)** 4. **THAT the costs of this application be in the cause.** 5. The application is based on grounds on the face of it, mainly that the issues for determination in both suits are substantially similar questions of fact and law, and that the plaintiff/applicant in the **ELC Case** **No. 113 of 2018** is Isaiah Wanyonyi, who is also a defendant in **ELC Case No. E035 of 2025**. The applicant further contends that the rights or reliefs claimed in both matters arise out of the same transaction; hence, consolidation will avoid multiplicity of proceedings, prevent conflicting decisions, save judicial time, and reduce costs to the parties. 6. The application is further supported by the affidavit of the applicant, Isaiah Wanyonyi, of even date, setting out the facts giving rise to the same. 7. In the affidavit, the deponent avers that he is the plaintiff in the **ELC Case No. 113 of 2018** and one of the defendants in the **ELC Case No. E035 OF 2025**; that the County Government of Trans Nzoia instituted the current proceedings against him and **53** others way after he (deponent) had filed **ELC No. 113 of 2018**, against the said County Government of Trans Nzoia, and that the subject matter in both cases relates to the same parcel(s) of land and/or substantially raises similar questions of fact and law. 8. The application is opposed. The respondent filed grounds of opposition dated **28/4/2026**, in which it attacks the said application as being misconceived and bad in law as it seeks to consolidate suits where the parties occupy diametrically opposed legal positions and capacities. 9. The respondent further avers that the suits involve different scopes of subject matter in that **ELC Case No. 113 of 2018** is an individual claim for the excision of unsurveyed portions of land, whereas **ELC Case No. E035 of 2025** is a broad action for the protection and recovery of the entirety of the surveyed parent title No. **Kitale Municipality Block 7/358**. It is further contended by the respondent that the plaintiff in **ELC Case No. E035 of 2025** is the defendant in **ELC Case No. 113 of 2018**, rendering a joint hearing procedurally untenable and creating an incurable conflict regarding the burden of proof. 10. The respondent further contends that there is a fundamental lack of mutuality of parties; that the present suit involves **54** distinct defendants facing individual allegations of trespass, **53** of whom are complete strangers to **ELC No. 113 of 2018** and have no legal interest in the private dispute. 11. It is the respondent’s view that the intended consolidation does not serve the interests of judicial economy as alleged but will instead create an inextricable procedural stalemate, lead to a cluttered court record, and ultimately result in a miscarriage of justice by delaying the urgent resolution of the plaintiff’s claims. 12. When the parties appeared before the court on **30/6/2026**, the court directed both counsel to argue the application orally. Mr. Teti, learned counsel for the applicant, told the court that the application is brought under **Section 1A, 1B,** and **3A** of the Civil Procedure Act, and **Order 11 Rule 3(1) (h)** and **Order 51 Rule 1** of the Civil Procedure Rules, **2010**, and **Article 159(2)** of the Constitution of Kenya. 13. Learned counsel raised two **(2)** issues for the court’s determination, to wit: 14. ***Whether the two suits raise substantially similar questions of fact and law, arising out of the same subject matter, to warrant consolidation.*** 15. ***Whether consolidating the two (2) suits serves the overriding interests of justice, judicial economy, and preventing potential conflicting judicial decisions.*** 16. On the first issue, learned counsel contended that a review of the two plaints shows that they are both set on the place of the Intergovernmental Partnership Agreement (IPA) dated **6/2/2024** between the National Government through the National Museums of Kenya and the County Government of Trans Nzoia on who is entitled to manage and operate all its facilities and activities that belong to Kitale Museum and that they both relate to the property described as **Kitale Municipality Block 7/358**. Learned counsel further argued that the **2018** suit was filed by two plaintiffs, one of whom is a defendant in **ELC No. E035 of 2025**, who in the former suit is seeking a declaration of title and protection against forceful invasion in respect of the unsurveyed two plots which fall within the larger **Kitale Municipality Block 7/358**. Counsel further contended that the two suits will require the same witnesses and the same documentary evidence. 17. On the second issue above. Counsel argued that if the two suits were to proceed independently, there would be a likelihood of two conflicting decisions by courts, and parties would have to be called twice to testify in matters that are substantially the same. Counsel refuted claims that the **53** other defendants in **ELC Case No. E035 of 2025** are strangers and submitted that they all face similar accusations of invading the Museum land. He further submitted that the **2018** matter will conclusively determine the root of title question. Counsel urged the court to be guided by the decision in ***Yati Security Guards & Service Ltd vs Municipal Council of Mombasa [2007] eKLR***, in allowing the application for consolidation. 18. On the other hand, Mr. Sifuna, for the plaintiff/respondent, told the court that the application is opposed. Counsel submitted that **ELC Case No. 113 for 2018** is a historical allotment dispute by the 1st defendant concerning some alleged unsurveyed plots, while in contrast, **ELC Case No. E035 of 2025** is a public land recovery suit by the County Government of Trans Nzoia in respect of land Ref. No. **Kitale Municipality Block 7/358**, which is subject to the Intergovernmental Partnership Agreement dated **6/2/2024**. 19. The learned counsel contends that consolidating this matter would drag **53** strangers into a **2018** matter in which they have no interest. Counsel further argued that the reliefs sought are different. He urged the court to dismiss the application with costs. 20. In a rejoinder, counsel for the applicant submitted that **ELC Case No. 118 of 2018** does not raise historical land issues. Counsel argued that eviction is dependent on the validity or otherwise of title documents. That one cannot claim eviction in the **2025** case without proving that the County Government of Trans Nzoia is the absolute owner of the portion of land which is the basis of the **2018** case. 21. I have carefully considered the application, the supporting affidavit thereof, as well as the grounds of opposition dated **28/4/2026**. I have equally considered the applicable law. 22. From the foregoing, the key issue that arises for determination is whether this is a fit case for consolidation of the two matters, being **ELC Case No. 113 of 2018, Isaiah Wanyonyi vs County Government of Trans Nzoia**, with **ELC Case No. E035 of 2025, County Government of Trans Nzoia vs Isaiah Wanyonyi & 53 Others**. 23. Needless to restate, the application for consolidation has been strenuously opposed. Whereas counsel for the applicant contends that the facts, witnesses, and documentary evidence in both suits are substantially the same and that consolidation will serve the interests of justice, counsel for the respondent submits that the subject matter and the prayers are distinct and that one suit has **53** other parties who would be strangers in **ELC Case No. 113 of 2018**. Counsel further contends that consolidation of the two matters will create an inextricable procedural stalemate, lead to a cluttered court record, and result in a miscarriage of justice by delaying the urgent resolution of the plaintiff’s claim in **ELC Case No. E035 of 2025.** 24. I will have both submissions in contemplation as I venture to address the issue I have raised hereinabove for determination. 25. The court’s jurisdiction to consolidate suits is to be found under **Order 11 Rule 3** of the Civil Procedure Rules. The wisdom behind consolidation of suits has been expressed in various judicial authorities. In the case of ***Prem Lala Nahata & Anor -vs- Chandi Prasad Sikaria (2007) 2 SCC 551***, the Supreme Court of India, speaking to the issue of consolidation of suits, held: ***“It cannot be disputed that the court has power to consolidate suits in appropriate cases….”*** ***“The main purpose of consolidation is therefore 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 where two or more matters or causes are pending in court and it appears to the court that some common questions of law or fact arise in both or all the suits or that the rights or reliefs claimed in the suits are in respect or arise out of the same transactions, or that for some other reasons it is desirable to make an order consolidating the suits.”*** 1. Kenya’s own Supreme Court has had occasion to address its mind to the question of consolidation of suits in the case of ***Law Society of Kenya vs Centre for Human Rights and Democracy & 12 Others [2014] eKLR***, when it held: ***“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 intended to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards any party who opposes it.”*** 1. Turning to the matter before me, the two suits sought to be consolidated are **ELC Case No. 113 of 2018, Isaiah Wanyonyi vs County Government of Trans Nzoia**, and **ELC Case No. E035 of 2025, County Government of Trans Nzoia vs Isaiah Wanyonyi & 53 Others**. 2. The common denominator in the two suits is that the parties are substantially the same, save that in **ELC Case No. E035 of 2025**, there are **53** other defendants, other than Isaiah Wanyonyi, who is the plaintiff in the **ELC Case No. 113 of 2018**. 3. It is not disputed that the land subject of these proceedings is **Kitale Municipality Block 7/358,** where it is argued by the applicant that the unsurveyed plots that he is claiming fall within the larger suit property in **ELC Case No. E035 of 2025**, being land title No. **Kitale Municipality Block 7/358.** 4. As has been argued by counsel for the applicant, and I think rightly so, an order of eviction sought against all the 54 defendants, including the applicant herein, cannot issue before the court addresses itself to the evidence on whether or not the subject land is public land and therefore unavailable for allocation to any of the defendants herein, including the applicant, the 1st defendant. 5. It is, therefore, not far-fetched to say that common questions of law and fact arise in both suits. The reliefs sought are, in my view, arising in respect of the subject land, which is the same in both suits. 6. Even though counsel for the respondent’s fear and concern is that consolidating these two suits will create an inextricable procedural stalemate, lead to a cluttered court record, and ultimately result in a miscarriage of justice, this court's respectful view is different. All that the court requires in terms of evidence is a determination of the twin issues of whether the land parcels claimed by the plaintiff in **ELC Case No. 113 of 2018** are comprised in the land parcel described as **Kitale Municipality Block 7/358,** and whether the said parcel is public or private land, so that it is unavailable for any allotments to be made. 7. In doing so, the court need not hear from all the **54** defendants. **Section 143** of the Evidence Act provides that no particular number of witnesses may be required to prove a fact, and this court is imbued with sufficient judicial reasoning and experience to enable it to make appropriate directions on how the matter would effectively proceed to avoid any further delays. 8. I feel I have said enough to explain why I consider these two matters to be fit cases for consolidation to save judicial time, to avoid the possibility of two conflicting decisions as well as duplication of evidence. 9. The corollary to this is that the application for consolidation is allowed with the following directions: 10. **That the two suits be and are hereby consolidated.** 11. **The lead file shall be the file with all the 54 defendants so that their respective claims can be delineated and addressed; that is to say, the lead file will be ELC Case No. E035 of 2025.** 12. **Summons to enter appearance in respect of ELC Case No. 113 of 2018 shall be signed and issued forthwith to enable the plaintiff in that case to serve the defendants.** 13. **Parties shall thereafter file and exchange their trial bundles within 30 days from the date hereof.** 14. **Mention for pre-trial conference on 22/9/2026.** 15. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy No appearance of the parties who had notice.  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**