[2007] KEHC 84 (KLR)
The court held that consolidation of Hccc1769/96 with Misc.401/2002 was not permissible because Hccc1769/96 had already been finalized by a consent order, rendering it a spent suit. The applicant's attempt to set aside the consent order in a different suit was procedurally improper. The court emphasized that once a...
Source-derived case information.
- Citation
- [2007] KEHC 84 (KLR)
- Parties
- Plaintiff: Friedrick Kimemi Kimani; Defendant: Mohan Singh s/o Jama Singh; Defendant: Official Receiver of Kenya; Defendant: Administrator of the Estate of Gurchanan Singh Sandhu; Interested Party: John Mburu Kibe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 401 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Consolidate Suits
- Outcome
- application dismissed with costs to respondents
- Legal Topics
- Consolidation of Suits, Adverse Possession, Consent Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Friedrick Kimemi Kimani
Plaintiff
Mohan Singh s/o Jama Singh
Defendant
Official Receiver of Kenya
Defendant
Administrator of the Estate of Gurchanan Singh Sandhu
Defendant
John Mburu Kibe
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application to Consolidate Suits
Legal Issues
- 1 Whether the court should consolidate Hccc1769/96 with Misc.401/2002.
- 2 Whether a consent entered in one suit can be set aside through an application in a different suit.
Ratio Decidendi
The court held that consolidation of Hccc1769/96 with Misc.401/2002 was not permissible because Hccc1769/96 had already been finalized by a consent order, rendering it a spent suit. The applicant's attempt to set aside the consent order in a different suit was procedurally improper. The court emphasized that once a consent has been entered and the suit finalized, it cannot be revived or consolidated with another pending matter. Accordingly, the application for consolidation was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to respondents
Orders
- The application to consolidate Hccc1769/96 with Misc.401/2002 is dismissed with costs to the respondents.
- The hearing of Originating Summons Misc.401/02 to be set down for directions under Order XXXVI r 8 a 12 Civil Procedure Rules.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS)
MISC APPLI 401 OF 2002(OS)
FRIEDRICK KIMEMI KIMANI ……………………............……... PLAINTIFF
VERSUS
MOHAN SINGH S/O JAMA SINGH ……...........……… 1ST DEFENDANT
OFFICIAL RECEIVER OF KENYA ………......…….. 2ND DEFENDANT
AS ADMINISTRATOR OF THE ESTATE
OF GURCHANAN SINGH SANDHU) …….........……. 3RD DEFENDANT
JOHN MBURU KIBE ……………….....…………. INTERESTED PARTY
RULING
I: Background of application to consolidate two suit.
1. Fredrick K. Kimani files an application before this High Court of Kenya dated 5 August 2007 seeking for order under order XI Civil Procedure Rules to consolidate the Originating Summons 401/02 Originating Summons case with Hccc1769/96 between himself and John Mburu Kibe.
2. Briefly, Fredrick K. Kimani entered into a sales agreement whereby the seller was later declared a bankrupt. An official receiver was appointed. The premises was originally owned by 3 defendants.
3. The suit Hccc1769/96 was filed by John Mburu Kibe for ownership also of the said suit premises. The parties appeared before the Principal Deputy registrar C. Njai (as he then was) and a consent entered between the official receiver and John Mburu Kibe that the whole property known as LR 36/1/398 Eastleigh belongs to the said John Mburu Kibe.
4. When Fredrick K. Kimani discovered this he filed suit under Misc.401 of 2002 seeking Adverse Possession of the said premises. I seem to note and became aware of another suit before the magistrates court case at Milimani being CMCC 2202/02. I do not have sight of this file.
5. The question arises should suit Hccc1769/96 be consolidated with Misc.401/2002?
II: Finding
6. I note the arguments put forward by the respondent. Suit Hccc 1769/96 had been compromised by the consent entered of 3 March 2003. The property was given to Fredrick K. Kimani and not John Mburu Kibe and the matters was therefore finalized.
7. Indeed once the consent had been entered to finalize the said suit is spent. What we have before court is file Misc.401/02 that is pending.
8. What the applicant did was to come to court under Misc. application 401/02 and file an application to set aside that consent in Hccc1769/96. You cannot have a consent entered into in a different file, then make application in another subsequent file to have a consent set aside.
9. The applicant’s right to consolidate these two files is denied and refused. The said plaintiff application is hereby dismissed with costs to the respondents.
10. The hearing of this Originating Summons should be set down for direction under Order XXXVI r 8 a 12 Civil Procedure Rules.
Dated this 15th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
R.N.M. Ongegu of Ongegu & Associates Advocates for the plaintiff/applicant- present
I.J. Mwangi of Irungu Mwangi & Co. Advocates for the Interested Party- present