Ismail & 3 others v Ismail & 3 others (Civil Case E1896 of 2025) [2026] KEMC 452 (KLR) (30 July 2026) (Ruling)

Ismail & 3 others v Ismail & 3 others (Civil Case E1896 of 2025) [2026] KEMC 452 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEMC 452 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case E1896 of 2025 EM Mwamuye, SRM July 30, 2026 Between Rasti Hassan Ismail & 3 others & 3 others Plaintiff and Nargis Hassan Ismail & 3 others & 3 others Defendant Ruling 1.The Plaintiffs/Applicants moved this Court by a Notice of Motion dated 22nd April 2026 brought under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Order 11 of the Civil Procedure Rules and all other enabling provisions of the law. The application principally seeks orders that this suit be consolidated with MCELC No. E105 of 2025 and ELC No. 186 of 2024, together with ancillary orders for stay of the said proceedings pending the determination of the application and costs. 2.The application is supported by the affidavit of Rasti Hassan Ismail, who depones that all the parties are siblings and beneficiaries of the estate of the late Hassan Ismail, whose estate includes Plot No. Mombasa/Block XI/652. She avers that following succession proceedings before the Kadhi's Court, the beneficiaries were allocated various portions of the suit property. However, disputes subsequently arose concerning occupation of the property, construction of additional floors, subdivision of the property, utilisation of common amenities including the septic tank, and the parties' respective obligations arising from the succession orders. 3.The Applicants contend that ELC No. 186 of 2024, MCELC No. E105 of 2025, and the present suit arise from the same property, involve substantially the same parties, and revolve around the implementation of the succession orders issued by the Kadhi's Court. They argue that the suits raise common questions of both law and fact and that hearing them separately is likely to result in duplication of evidence, increased litigation costs, wastage of judicial time and the possibility of conflicting decisions. 4.The annexures to the supporting affidavit include the title documents relating to the suit property, the Kadhi's Court orders distributing the estate among the beneficiaries, and pleadings filed in the related suits. Those documents demonstrate that the disputes stem from the same succession proceedings and concern the occupation, development and management of the same parcel of land. 5.Although the Respondents oppose the application, the principal issue falling for determination is whether the Applicants have satisfied the legal threshold for consolidation of suits. 6.The principles governing consolidation of suits are now well settled. Consolidation is intended to facilitate the efficient and expeditious disposal of disputes where actions involve common questions of law or fact, arise from the same transaction or series of transactions, or where consolidation would save costs, avoid multiplicity of proceedings and eliminate the risk of inconsistent findings. The power to consolidate suits is discretionary and must always be exercised in furtherance of the overriding objective under Sections 1A and 1B of the Civil Procedure Act. 7.Having considered the pleadings and the annexures placed before the Court, I am satisfied that the threshold for consolidation has been met. 8.First, the parties in all the suits are members of the same family and are beneficiaries of the estate of the late Hassan Ismail. Although not all the parties are identical in every suit, there is substantial commonality of parties, and the disputes arise from the same succession process. 9.Secondly, all the proceedings relate to Plot No. Mombasa/Block XI/652 and concern rights flowing from the distribution of that property by the Kadhi's Court. The disputes regarding construction of additional floors, use of common facilities, contribution towards common expenses, subdivision of the property and enforcement of the consent orders are all interconnected. 10.Thirdly, the evidence required in each matter will substantially overlap. Separate trials would inevitably require the Court to receive evidence relating to the succession proceedings, the allocation of the beneficiaries' respective portions, the common amenities serving the property, and the conduct of the parties following distribution of the estate. Conducting separate hearings would therefore occasion unnecessary duplication of proceedings. 11.Fourthly, there exists a real likelihood of conflicting decisions if the matters proceed independently before different courts. Such an outcome would not only prejudice the parties but would also undermine the orderly administration of justice. 12.The Court is satisfied that no prejudice incapable of being compensated by appropriate case management directions has been demonstrated. On the contrary, consolidation will facilitate a comprehensive determination of all the disputes arising from the same property and the same succession proceedings. 13.The prayer seeking stay of proceedings was intended to preserve the subject matter pending determination of the application. Having now determined that consolidation is appropriate, that prayer has effectively been overtaken by events. 14.Accordingly, the Notice of Motion dated 22nd April 2026 succeeds and the Court makes the following orders:i.The prayer for certification of urgency is marked as spent.ii.MCELC No. E1896 of 2025, MCELC No. E105 of 2025, and ELC No. 186 of 2024 are hereby consolidated for purposes of hearing and determination.iii.MCELC No. E1896 of 2025 shall be the lead file unless otherwise directed by the Court.iv.The prayer for stay of proceedings is marked as spent upon consolidation of the suits.v.The parties shall, within twenty-one (21) days, file and serve any supplementary pleadings, witness statements, bundles of documents or agreed issues, if necessary, to facilitate the hearing of the consolidated suit.vi.Costs of the application shall be in the cause.It is so ordered. DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.………………………HON.E.M. MWAMUYESENIOR RESIDENT MAGISTRATE