[2015] KEHC 1140 (KLR)
The court found that granting a stay of proceedings, consolidation, or a de novo hearing would not serve the interests of justice in this case. The two suits, CMCC No. 152 of 1996 and HCCC No. 24 of 1987, had been pending for 9 and 28 years respectively. Consolidation or a de novo hearing would result in further...
Source-derived case information.
- Citation
- [2015] KEHC 1140 (KLR)
- Parties
- Applicant: Jenniffer Kaburo Mwongera; Applicant: Japhet Gatobu; Respondent: M’Mbijiwe M’Itonga; Respondent: Francis Mugambi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 23 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Stay, Consolidation, or De Novo Hearing
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Stay of Proceedings, Case Consolidation, De Novo Hearing, Land Fraud, Land Registration, Removal of Restrictions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jenniffer Kaburo Mwongera
Applicant
Japhet Gatobu
Applicant
M’Mbijiwe M’Itonga
Respondent
Francis Mugambi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Stay, Consolidation, or De Novo Hearing
Legal Issues
- 1 Whether the court should stay proceedings in CMCC No. 152 of 1996 pending determination of HCCC No. 24 of 1987.
- 2 Whether the court should consolidate HCCC No. 24 of 1987 and CMCC No. 152 of 1996 for joint hearing.
- 3 Whether the court should order that CMCC No. 152 of 1996 be heard de novo together with HCCC No. 24 of 1987.
Ratio Decidendi
The court found that granting a stay of proceedings, consolidation, or a de novo hearing would not serve the interests of justice in this case. The two suits, CMCC No. 152 of 1996 and HCCC No. 24 of 1987, had been pending for 9 and 28 years respectively. Consolidation or a de novo hearing would result in further inordinate delay, effectively wasting the time already spent on each case. The issues raised by the applicants could be adequately addressed in the separate proceedings. The applicants failed to demonstrate sufficient grounds for the orders sought, and the court exercised its discretion to refuse the application in order to avoid further delay and prejudice to the parties.
Court Disposition
application dismissed
Orders
- The application is dismissed in all respects and prayers 1, 2, and 3 are denied.
- Costs are awarded to the respondents.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC APPL. 23 OF 2014
JENNIFFER KABURO MWONGERA. ....................................................1ST APPLICANT
JAPHET GATOBU ......................................................................................2ND APPLICANT
VERSUS
M’MBIJIWE M’ITONGA......................................................................1ST RESPONDENT
FRANCIS MUGAMBI .........................................................................2ND RESPONDENT
R U L I N G
This application is dated 24/04/2014. The applicant has stated that the application is predicated upon S.18, S.5 S.6 of the Civil Procedure Act, Order 11 and Order 1(1) and 2 and 10 of the Civil Procedure Rules, S. B of the Environment and Land Act and Section 101 of Land Registration Act and S. 150 of Lands Act.
The application seeks orders:-
That this Court do deem it fit and proper to order stay of proceedings of CMCC. No. 152 of 1996 until the hearing and determination of the HCCC No. 24 of 1987 has been completed.
That alternatively that suits No. HCCC No. 24 of 1987 and CMCC No. 152 of 1996 be consolidated so as to be heard together.
That the Court to order suit No. 152 of 1996 be heard de novo together with the older case No 24 of 1987.
The application has the following grounds:-
That the subject matter of CMCC No 152 of 1996 which is Land Parcels No. 1033 and 1034 are all sub-divisions of Land Parcel No. 97 which is subject matter of suit No. 24 of 1987.
That these sub-divisions were done fraudulently and illegally despite the existence of the older suit.
That the respondents herein took advantage of that corrupt dealing to purchase these portions sub-divided from the share of one Simion Mwiti who had been fraudulently registered as a proprietor in common with the Plaintiff herein.
That the restrictions registered upon the land were equally corruptly removed by the Land Registrar illegally and unlawfully.
The applicant has explained the history of CMCC NO. 152 of 1996 which he wants stayed until hearing and determination of HCCC NO. 24 of 1987 has been completed. Alternatively, he wants the two cases consolidated and heard together. His primary assertion is that the subject matter in CMCC NO 152 of 1996 which is land Parcel Nos. 1033 and 1034 are all subdivisions of Land Parcel No 97 which is the subject matter of suit No. 24 of 1987. The applicants submit that the subdivisions were done fraudulently and illegally despite the existence of an older suit. The applicants also seek to have suit Nos. 152 of 1996 and 24 of 1987 be heard de novo.
The respondents oppose the application. They say that with respect to Meru CMCC No. 152 of 2006, the plaintiffs were substantively heard and closed their case in 2011. They submit that only the defence case is pending.
The respondents rhetorically pose the question: What purpose will it serve to either consolidate this suit or order the two suits to begin de novo? They opine that the applicants have not shown why this should be done.
The respondents term the application as not only scandalous but also misconceived, without merit and an abuse of the Court process. They pray that the application be dismissed with costs.
I have carefully considered the pleadings and the submissions proffered by the parties. I note that suit No. Meru CMCC 152 of 2006 is 9 years old. It was filed 19 years after Meru HCCC 24 of 1987 was filed. Meru HCCC 24 of 1987 is 28 years old.
I opine that consolidating CMCC 152 of 2006 with HCCC No. 24 of 1987 would have the effect of having the cases heard afresh. 28 years after HCCC NO. 24 of 1987 was filed in Court. Staying proceedings in CMCC No. 152 of 2006 would have the effect of hearing and determination of the suit 9 years after it was filed in Court. Having the 2 suits heard de novo would have the hearing and determination delayed inordinately. With respect to suit No. 152 of 1996 nine years would have been wasted. In the case of HCCC No. 24 of 1987, 28 years would have been wasted.
I find that the issues being raised by the applicants can be satisfactory canvassed separately in CMCC 152 of 1996 and in HCCC No. 152 of 2006. I, therefore, find that this application is not meritorious.
I issue the following orders:-
This application is dismissed in all respects and prayers 1, 2, and 3 are denied.
Costs are awarded to the respondents.
It is so ordered.
Delivered in Open Court at Meru this 18th Day of November, 2015 in the presence of:-
CC:
P. M. NJOROGE
JUDGE