[2022] KEHC 16551 (KLR)

Gitau v Jennings & 5 others; Acorverde (K) Limited & another (Interested Parties) (Commercial Case E629 of 2021) [2022] KEHC 16551 (KLR) (Commercial and Tax) (7 December 2022) (Directions)

Neutral citation: [2022] KEHC 16551 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Case E629 of 2021

DO Chepkwony, J

December 7, 2022

Between

William K Gitau

Plaintiff

and

Stephen Jennings

1st Defendant

Christopher John Barron

2nd Defendant

Tatu City Limited

3rd Defendant

Oaklands Properties Kenya Limited

4th Defendant

Mary Chege

5th Defendant

Chief Land Registrar

6th Defendant

and

Acorverde (K) Limited

Interested Party

Tenton (K) Limited

Interested Party

Directions

1. It was brought to this court’s attention that there are three applications pending in this matter-a)The first application is dated June 11, 2021 filed by the plaintiff and seeks to restrain the defendants herein from transferring, alienating or otherwise disposing some parcles of land listed therein pending the determination of the suit.b)The second application dated July 19, 2021 filed by the 3rd and 4th proposed interested parties in which they seek to be enjoined to this suit. It is however important at this stage to state that’s the proposed interested parties are the defendants in OSE702 of 2021. c)The third application is dated August 4, 2021 filed by the plaintiff seeking this matter to be consolidated with OS E702 of 2021.

2. It is a common ground this court, while presided by Hon Lady Justice Okwany directed that the three application be canvassed by way of written submissions. However, on November 20, 2022 when the parties appeared before me for highlighting of submissions, whereas Mr Isaac Rene counsel for the plaintiff confirmed compliance and readiness to highlighting, the defendants counsel led by senior counsel Mr Ahmed Nassir counsel for the 1st, 2nd, 3rd and 4th defendants informed the court that there were new developments which would render some of the applications unnecessary.

3. According to the learned senior counsel, the purport of two rulings delivered by this court dispensed with the application dated July 19, 2021 and August 4, 2021. More specifically, that directions were issued by the Hon Justice Mabeya on September 1, 2021 that OS E702 of 2021 be prosecuted separately from the present suit by way of affidavit evidence, although the court observed that the issues in that suit and the present suit were similar. In view of the learned senior counsel, those directions disposed and or rendered otiose the application dated August 4, 2021 seeking to consolidate this matter withOS E702 of 2021.

4. In addition, although the Honourable Lady Justice Okwany in a ruling dated July 21, 2022, denied the invitation to stay the proceedings in OS E702 of 2021 pending the hearing of the application for consolidation herein dated August 4, 2021, she reviewed the earlier directions by Hon Justice Mabeya and directed that the suit (OS E702 of 2021) proceeds by way of viva voce evidence. Nonetheless, there is an appeal pending against the subsequent directions by Hon Lady Justice Okwany.

5. It is however important to point out both Hon Justice Mabeya and Hon Justice Okwany were of twinned opinion that the two matters are related in factual issues but none of them ruled out and or approved the application dated August 4, 2021 for consolidation save for directions of September 1, 2021, which have since been set aside. Since the Court of Appeal is yet to reverse the ruling dated July 21, 2022 and the directions therein, I am of the view that it is still open for this court to consider possible case of consolidation of the two cases given the similarity in the factual issues.

6. Having said the above, it cannot be gainsaid that the application dated August 4, 2021 is open for this court’s consideration and the invitation to declare it as overtaken by events or otherwise spent is declined since no such judgment has been passed. I am reluctant to make any pronouncement on its merit based on the implication of ruling/directions by previous courts which had the conduct of the matter. I shall avail the parties an opportunity to canvass the application.

7. As regards the application dated July 19, 2021 seeking joinder of the 3rd and 4th interested parties, other than the directions issued by Hon Mabeya on September 1, 2021 and which directions have been set aside, I have not seen any other ruling and or direction by this court implying that the issue of joinder as sought has been dealt with.

8. In the premises, I am persuaded that it would still be in order to canvass the three applications in contemporaneity as earlier directed. Given that the court has not substantively and with preciseness pronounced itself on any of the issues pending on the three applications, the following order do issue:-a)Mention on January 26, 2021 for fixing a ruling date and or highlighting.

9. It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7THDAY OF DECEMBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Isaac Rene holding brief for Mr. Omwansa counsel for the PlaintiffMr. Ahmed-Nassir (S.C) appearing for 1st – 4th DefendantsMr. Wambugu counsel for 5th DefendantMr. Otieno Willis counsel for proposed 3rd and 4th Proposed Interested PartiesCourt Assistant - Sakina