https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8948

Obino v Nyabuti (Civil Appeal E101 of 2025) [2026] KEHC 8948 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8948 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E101 of 2025 Sifuna Nixon, J June 11, 2026 Between Ezekiel Nyabira Obino Appellant and Esther Nyabuti Respondent (Being an Appeal from the Judgment of Honourable S. N. Abuya (CM) delivered on the 2nd day of July, 2025 in Kisii Civil Suit No. E 617 OF 2024) Ruling 1.This Appeal together with KISII HCCCA No. E109 of 2025, are between the same parties and arise from the same suit and same judgment in which one party has the Plaintiff and the other the Defendant. Namely, Kisii Civil Suit No. E 617 OF 2024. 2.Each party being aggrieved with the said judgment, has filed its own Appeal against it. The Plaintiff has filed this HCCCA No. E101 of 2025, while Esther Nyabuto who was the Defendant in the trial Court, has filed HCCCA No. E109 of 2025. 3.The parties being desirous of both Appeals being heard together and determined together, have urged this Court to exercise its powers and consolidate the two Appeals. They have cited Order 42 Rules 13 and 32 of the Civil Procedure Rules as the enabling provisions. They have also relied on Section 1A and 1B and 3A of the Civil Procedure Act (Cap 21 Laws of Kenya); also Article 159 of the Kenya Constitution which urges courts to determine cases without undue regard to procedural technicalities. Analysis and Determination 4.I hold that first, the provisions of the Civil Procedure Rules as regards consolidation of suits, do not apply to Appeals. Whether Mutatis Mutandis or otherwise. Order11 Rule 3 of the Rules, and which deals with pre-trial directions and which the court may consider consolidation of suits, does not apply to directions in Appeals. I further find that Order 42 of the Civil Procedure Rules has no provision for consolidation of Appeals. Whether express, or by implication. 5.Rule 13 thereof, is only as to the court giving notice the parties for directions, and thereupon the Appellant causing the Appeal to be listed for directions. This provision cannot be invoked by an Application for consolidation of Appeals. 6.Rule 32, for its part, although on the power of the appellate court, relates to the court passing any decree and making any order that ought to have been passed or made. This power in my view, relates to acts or orders that would have been made by the trial court. In this particular case, there was only one suit and not more. Hence the issue of consolidation of suits by the trial court would not arise. 7.I am of the fervent view that Article 159 (2) of the Constitution relates to procedural technicalities and not jurisdictional issues. A court’s jurisdiction has to be properly invoked and through the specific enabling provision(s) of the law. That is why parties in their Applications, cite the enabling provisions.Thus, there ought to be a provision in the law, by which a party approaches the court or invokes its jurisdiction. 8.The Application to consolidate Appeals cannot be predicated on Order 42 Rules 13 and 32 of the Civil Procedure Rules; or Sections 1A, 1B and 3A of the Civil Procedure Act. The Court in this instance, is exercising appellate jurisdiction. Which is a rather restricted jurisdiction that can only be exercised in the prism of appellate practice and law. 9.Consequently, I decline to order the consolidation of these two appeals. I instead direct that since they arise from the same suit and the same judgment, and involve the same parties as in the trial case; one be the main Appeal and the other be a Cross-Appeal. KISII HCC Appeal No. E101 of 2025 be the Main Appeal, and KISII HCC Appeal No. E109 of 2025 be the Cross-Appeal. 10.Orders accordingly. DATED AND DELIVERED AT KISII ON THIS 11TH DAY OF JUNE, 2026.PROF (DR) NIXON SIFUNAJUDGE