[2011] KEHC 3488 (KLR)
The court found that both ELC No. 2291 of 2007 and HCCC No. 454 of 2009 concern the same subject matter—ownership of the suit premises—and that the issues in both cases are intertwined. The court noted that consolidation would not prejudice any party, as the principal issue is common to both suits. The court further...
Source-derived case information.
- Citation
- [2011] KEHC 3488 (KLR)
- Parties
- Plaintiff: James Mwangi Maina; Defendant: Peninah Nyambura Maina; Defendant: Petsun Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2291 of 2007
- Procedural Posture
- Chamber Summons Application / Ruling on Application for Consolidation of Suits
- Outcome
- Application for consolidation of suits allowed.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Consolidation of Suits, Case Management, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwangi Maina
Plaintiff
Peninah Nyambura Maina
Defendant
Petsun Limited
Defendant
Procedural Posture
Chamber Summons Application / Ruling on Application for Consolidation of Suits
Legal Issues
- 1 Whether HCCC No. 454 of 2009 should be consolidated with ELC No. 2291 of 2007 for joint hearing and determination.
- 2 Whether consolidation would prejudice any party or serve the ends of justice.
Ratio Decidendi
The court found that both ELC No. 2291 of 2007 and HCCC No. 454 of 2009 concern the same subject matter—ownership of the suit premises—and that the issues in both cases are intertwined. The court noted that consolidation would not prejudice any party, as the principal issue is common to both suits. The court further observed that consolidation would promote judicial economy by saving time and expenses for all parties. The court exercised its discretion under the amended Civil Procedure Rules, specifically Order 11 rule 3(1)(h), to grant the application for consolidation, finding that the ends of justice would be served by hearing the suits together.
Court Disposition
Application for consolidation of suits allowed.
Orders
- HCCC No. 454 of 2009 is consolidated with ELC No. 2291 of 2007 and both suits shall be heard together.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO.2291 OF 2007
JAMES MWANGI MAINA ................................................................................PLAINTIFFS
VERSUS
PENINAH NYAMBURA MAINA..............................................................1ST DEFENDANTS
PETSUN LIMITED .................................................................................2ND DEFENDANTS
RULING
This is an application by way of Chamber Summons under Section 3A of the Civil Procedure Act and Order XI Rules 1 and 2 of the Civil Procedure Rules for the substantive order that this court do order that HCCC No. 454 of 2009 be consolidated with and be heard together with this suit. The reasons for the order sought are set out on the face of the application and also supported by an affidavit sworn by one Didacus Shymwana said to be a director of the second defendant.
The plaintiff in HCCC No. 454 of 2009 does not oppose this application. The plaintiff in this current suit however opposes the application and both counsel have filed submissions and cited some authorities which I have considered.
The Civil Procedure Rules have been amended and the new rules are now in operation. In the old rules either party had the power to apply for consolidation and the court also had the same power provided that the ends of justice will be met by the said order. In the new rules however under Order 11 rule 3(1) (h), the court has been given full power to consider the consolidation of suits. I have gone through the pleadings of the respective parties herein and I believe that the principal issue in both cases is that of ownership of the suit premises. If that be the case, I see no prejudice that may be occasioned to any of the parties in these two suits if the order is granted.There are several advantages of consolidating these cases in that, they relate to similar issues and that a determination of the two at the same time is going to save both time and expenses for the benefit of the parties herein.
There is also some nexus that exists in the pleadings and this will become evident during the main trial. I can only observe that the subject matter is the same and the issues are intertwined. Accordingly the application hereby succeeds and the costs shall be in cause.
Orders accordingly.
Dated, signed and delivered at Nairobi this 31st day of January, 2011.
A.MBOGHOLI MSAGHA
JUDGE