https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4539

Ethics and Anti-Corruption Commission & another v Onyango & 19 others (Environment and Land Case E020 of 2024 & E106 of 2023 (Consolidated)) [2026] KEELC 4539 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4539 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case E020 of 2024 & E106 of 2023 (Consolidated) EK Wabwoto, J July 16, 2026 Between Ethics and Anti-Corruption Commission Plaintiff and Violet Sally Onyango 1st Defendant Karia Nishma Ramesh 2nd Defendant Jecton Okwogo Amuya 3rd Defendant Adhiambo Agila Aluodo 4th Defendant Dolly Achieng Otieno 5th Defendant M/S Gateway Ltd 6th Defendant Clarice Rose Auma Odima 7th Defendant Homebounda (K) Ltd 8th Defendant Seline Aoko Ooko 9th Defendant Impact Chemicals Ltd 10th Defendant Tubman Damien Ochiel 11th Defendant Zablon Agwata Mabea 12th Defendant and County Assembly Of Kisumu 1st Interested Party County Government Of Kisumu 2nd Interested Party KIWASCO 3rd Interested Party DCB BANK 4th Interested Party As consolidated with Environment and Land Case E106 of 2023 Between Nancy Bosibori Miranyi Plaintiff and County Assembly Of Kisumu & 2 others Defendant and Olel, Onyango Ingutya Advocates Interested Party Ruling 1.This ruling determines a narrow but consequential procedural question that arose upon the consolidation of two suits: whether Nancy Bosibori Miranyi, the Plaintiff in Kisumu ELC Case No. E106 of 2023, should participate in the consolidated proceedings as a co-plaintiff or whether she should be re-designated as the 13th Defendant as proposed by the Plaintiff in ELC Case No. E020 of 2024. 2.The background may be shortly stated. By a Plaint dated 31st July 2024, the Ethics and Anti-Corruption Commission (hereinafter “the Commission”) instituted ELC Case No. E020 of 2024 against the 1st to 12th Defendants in respect of the parcels of land known as Kisumu Municipality Block 13/92 to 109. The Commission pleads that the said parcels were planned and set aside as a public utility for water treatment works for Kisumu County under the Development Plan for Kisumu of 11th March 1971 and a Part Development Plan approved on 1st September 1987, and that between 10th May 2007 and 18th August 2022 the 1st to 11th Defendants were irregularly and illegally issued with leases over the eighteen (18) parcels on the strength of Part Development Plan No. N9/98/71, which is said not to exist in the physical planning records. 3.The Commission accordingly seeks, inter alia, declarations that the parcels are public land under the custody of the Kisumu County Government and that the titles held by the 1st to 11th Defendants are illegal; orders for the cancellation of the registration of the leases and all subsequent entries; an order that the land be re-planned to reflect the position on the ground; a permanent injunction restraining the 1st to 11th Defendants from dealing with the suit properties; and consequential orders compelling the National Land Commission and the Chief Land Registrar to give effect to the foregoing. 4.Prior to the filing of the Commission’s suit, Nancy Bosibori Miranyi had instituted Kisumu ELC Case No. E106 of 2023 against the County Assembly of Kisumu and 2 others. It is common ground that her claim, as it presently stands, is principally for the refund and recovery of monies she paid in respect of dealings touching on the suit parcels, and that she no longer pursues any declaratory relief over the parcels themselves. The said suit was subsequently transferred to this Court for purposes of consolidation with ELC Case No. E020 of 2024. 5.When the matter came up before Justice Asati on 20th May 2026, the parties were substantially agreed on consolidation and on the designation of the additional parties. It was agreed that Multiplex Enterprises Ltd and Tony Geoffrey Odede Onga would join the consolidated suit as Defendants, while the County Assembly of Kisumu would retain its position as the 1st Interested Party and the firm of Olel, Onyango Ingutya Advocates, the Interested Party in ELC Case No. E106 of 2023, would be admitted as the 5th Interested Party. The sole outstanding question the designation of the Plaintiff in ELC Case No. E106 of 2023 was stood over to 15th July 2026 for determination. 6.The matter accordingly came up before me on 15th July 2026, when I heard counsel on the outstanding question. Ms. Ekesa, holding brief for Ms. Kakuvi, addressed the Court for the Commission, while Mr. Otieno Obiero addressed the Court for Nancy Bosibori Miranyi. Mr. Obiero had also, by a letter dated 26th May 2026 whihch set out his client’s position in extenso, and I have taken the same into account. The rival positions 7.The Commission’s position is that Nancy Bosibori Miranyi ought to be joined in the consolidated suit as the 13th Defendant. Ms. Ekesa submitted that the suit is public interest litigation in which the Commission, as the statutory body mandated to recover public assets, should remain the sole plaintiff; that the Commission has sought orders of permanent injunction against the 1st to 11th Defendants; and that Nancy Bosibori’s claim for a refund can conveniently be considered as a claim against her co-defendants within the consolidated suit. 8.Mr. Obiero, for Nancy Bosibori Miranyi, was firmly opposed to his client being re-designated as a defendant. He submitted that his client instituted her suit independently, prior to the Commission’s suit, and paid substantial court fees in excess of Kshs. 70,000/= in pursuit of remedies arising from monies paid to the defendants in her suit; that her present claim is principally for a refund and recovery of monies paid; that the Commission has no substantive cause of action against her, has sought no relief against her, and has not alleged any actionable wrong on her part; and that it would be procedurally unjust and prejudicial to convert a litigant who approached the court as an aggrieved claimant into a defendant in proceedings in which no relief is sought against her. 9.Counsel further submitted that if converted into a defendant, his client would effectively be compelled to litigate against co-defendants, thereby creating procedural confusion regarding the proper mechanism for pursuing her claim, since a counterclaim ordinarily lies against a plaintiff and not against a co-defendant. In support of that proposition, counsel relied on Eunice Nyairungu v Libey Njoki Munene & Others [2015] KEHC 2975 (KLR), where the Court declined consolidation in circumstances where one party in one suit was a defendant in the other suit, holding that such an arrangement would create confusion and prejudice, and on Young Traders (Tigoni) Limited v Julius Njoroge Kamau & Another [2016] eKLR, where consolidation was declined after a finding that differing causes of action and differing party positions would occasion prejudice and procedural impracticality. 10.Counsel also invoked the decision of the Supreme Court in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others, Petition No. 14 of 2013, for the proposition that the essence of consolidation is to facilitate the efficient and expeditious disposal of disputes while ensuring the fair and impartial dispensation of justice, and that consolidation should not occasion prejudice to any party, as well as Stumberg & Another v Potgeiter [1970] EA 323, for the proposition that consolidation is appropriate only where it serves convenience and the ends of justice without causing injustice to any party. He urged that upon consolidation his client should properly remain a co-plaintiff, and in the alternative, submitted orally before me that the suits ought to be de-consolidated and allowed to proceed separately. Analysis and determination 11.Having considered the record and the oral and written submissions of the parties, I find that the following issues arise for determination:i.Whether Nancy Bosibori Miranyi should participate in the consolidated suit as a co-plaintiff or as the 13th Defendant;ii.What consequential orders and directions should issue. 12.The starting point is the nature and effect of consolidation. Consolidation of suits is a case management tool exercised pursuant to the Court’s inherent jurisdiction and its pre-trial directions powers under Order 11 of the Civil Procedure Rules, in furtherance of the overriding objective enshrined in Sections 1A and 1B of the Civil Procedure Act. Its purpose is to save time and costs, avoid a multiplicity of proceedings and the risk of conflicting decisions on the same or substantially similar facts, and to facilitate the efficient disposal of disputes. 13.The Supreme Court in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others (supra) underscored that consolidation is intended to facilitate the efficient and expeditious disposal of disputes and the fair and impartial dispensation of justice, and that it should not occasion prejudice to any party. Two principles of present relevance flow from this. First, consolidation is a matter of procedure and convenience; it does not merge the constituent suits into a single cause of action, nor does it extinguish the independent identity of each suit. Each suit retains its own pleadings, and each party retains the substantive position and the accrued procedural rights it held in its own suit. Secondly, because consolidation is a servant of justice and not its master, it cannot be deployed in a manner that alters the substantive rights of a party or defeats a claim that was properly on foot before consolidation was contemplated. 14.With those principles in mind, I turn to the question of designation. The test of who is properly a defendant to a suit is supplied by Order 1 Rule 3 of the Civil Procedure Rules, which permits the joinder as defendants of persons against whom any right to relief is alleged to exist. Conversely, Order 1 Rule 1 permits the joinder as plaintiffs of all persons in whom any right to relief arising out of the same act or transaction or series of acts or transactions is alleged to exist, where common questions of law or fact would arise if such persons brought separate suits. 15.Measured against Order 1 Rule 3, the Commission’s proposal cannot be sustained. The Commission candidly does not allege any right to relief against Nancy Bosibori Miranyi. Its Plaint neither names her nor attributes to her any of the particulars of fraud pleaded against the 1st to 12th Defendants. No cancellation of any title held by her is sought, no injunction is sought against her, and no wrongdoing whatsoever is alleged on her part. A defendant is a person from whom relief is claimed; a party against whom nothing is claimed and nothing is alleged is, by definition, not a proper defendant. Indeed, were she to be enjoined as the 13th Defendant, she would be a candidate for striking out for misjoinder under Order 1 Rule 10(2) of the Civil Procedure Rules, since her presence in that capacity would be neither necessary for the effectual and complete determination of the Commission’s claim nor supported by any pleaded cause of action against her. 16.The converse is equally decisive. Nancy Bosibori Miranyi came to court as a claimant. Her suit, filed before the Commission’s, seeks the refund and recovery of monies she paid in respect of the impugned dealings. If she were re-designated as a defendant, the procedural vehicle for prosecuting that claim would be destroyed rather than preserved. A counterclaim under Order 7 of the Civil Procedure Rules lies against a plaintiff; it does not lie against a co-defendant. The Civil Procedure Rules make no provision for a freestanding cross-claim by one defendant against another, and third-party procedure under Order 1 serves an entirely different purpose of contribution and indemnity. The practical effect of the Commission’s proposal would therefore be to leave her claim, on which substantial court fees in excess of Kshs. 70,000/= were paid, in a procedural no-man’s land. That is precisely the prejudice which the Supreme Court cautioned against, and it is the very mischief that persuaded the courts in the Eunice Nyairungu and Young Traders (Tigoni) decisions (supra) to decline arrangements that would compel a party to litigate its claim from the wrong side of the record. 17.Ms. Ekesa’s submission that the suit is public interest litigation in which the Commission should remain the sole plaintiff, with respect, conflates the character of the litigation with the architecture of the parties. The public interest character of the Commission’s claim is not diminished by the presence of a private claimant pursuing a complementary claim arising from the same series of transactions. Nothing in the Ethics and Anti-Corruption Commission Act or in the Civil Procedure Rules confers upon the Commission an exclusive right to the plaintiff’s side of the record, and it is commonplace in consolidated proceedings for public and private claimants to stand together where their claims are not mutually antagonistic. 18.Nor is there any true antagonism between the two claims. The Commission impugns the alienation of the suit parcels and seeks the restoration of the land to the public; Nancy Bosibori Miranyi seeks the return of monies she paid in dealings connected with the very parcels whose alienation is impugned. The two claims proceed from a common factual substratum the propriety of the dealings in Kisumu Municipality Block 13/92 to 109 and raise common questions of fact within the meaning of Order 1 Rule 1. Far from being adverse to the Commission, her claim is directed at the same parties whose conduct the Commission impugns. Success by the Commission would not defeat her claim; if anything, the two are capable of standing together. Her joinder as a co-plaintiff is therefore not merely permissible under Order 1 Rules 1 and 7; it is the designation that accurately reflects the substance of her position. 19.I have also considered Mr. Obiero’s alternative invitation to de-consolidate the suits and let them proceed separately. I decline it. Both suits turn on the same parcels of land and on overlapping dealings and parties. Separate trials would carry the real risk of conflicting findings on the same facts, duplicated evidence and wasted judicial time the very evils consolidation exists to avert. The apprehended prejudice to his client is entirely cured by her retention on the plaintiffs’ side of the record. Once she is designated as the 2nd Plaintiff, her claim as pleaded in ELC Case No. E106 of 2023 remains intact, to be prosecuted against the parties she sued, and she takes neither the benefit nor the burden of the Commission’s pleadings. Consolidation, so structured, serves convenience and the ends of justice without causing injustice to any party, in the language of Stumberg & Another v Potgeiter (supra). 20.For the avoidance of doubt, the designation of Nancy Bosibori Miranyi as the 2nd Plaintiff is a matter of the consolidated record’s convenience only. Neither plaintiff is to be taken as adopting, or answering for, the pleadings of the other. 21.The upshot is that the question reserved for determination is answered in favour of Nancy Bosibori Miranyi. She shall participate in the consolidated suit as the 2nd Plaintiff and not as the 13th Defendant. Disposition 22.In the end, and for the reasons set out above, the Court makes the following orders:i.Kisumu ELC Case No. E020 of 2024 is hereby consolidated with Kisumu ELC Case No. E106 of 2023, with ELC Case No. E020 of 2024 being the lead file;ii.Nancy Bosibori Miranyi, the Plaintiff in Kisumu ELC Case No. E106 of 2023, shall be designated as the 2nd Plaintiff in the consolidated suit.iii.Leave is granted to the 1st Plaintiff to file and serve an Amended Plaint reflecting the consolidation and the agreed designation of parties including Multiplex Enterprises Ltd and Tony Geoffrey Odede Onga as the 13th and 14th Defendants respectively, and the firm of Olel, Onyango Ingutya Advocates as the 5th Interested Party within 14 days of the date of this Ruling;iv.The Defendants and Interested Parties shall file and serve their respective responses to the Amended Plaint, if any, within 14 days of service thereof;v.The pleadings filed in each of the constituent suits shall be deemed to be pleadings in the consolidated suit.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 16TH DAY OF JULY 2026.E. K. WABWOTOJUDGE