[2019] KEELC 1518 (KLR)
The court found that the Nakuru suit abated one year after the death of its plaintiff, Alexander Kaburu Mungai, as no substitution was made and no application for revival was presented. Since the Nakuru suit no longer exists in law, there is no suit to consolidate with the present matter. The application for...
Source-derived case information.
- Citation
- [2019] KEELC 1518 (KLR)
- Parties
- Plaintiff: John Maina Mburu; Defendant: Evans Kageche Boro
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 622 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Application for Consolidation of Suits
- Outcome
- application dismissed with costs to the respondent
- Judges
- EO Obaga
- Legal Topics
- Consolidation of Suits, Abatement of Suit, Substitution of Parties, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maina Mburu
Plaintiff
Evans Kageche Boro
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Consolidation of Suits
Legal Issues
- 1 Whether this suit should be consolidated with Nakuru ELC Suit No. 213 of 2013.
- 2 Whether consolidation is possible where the other suit has abated due to death of a party and lack of substitution.
Ratio Decidendi
The court found that the Nakuru suit abated one year after the death of its plaintiff, Alexander Kaburu Mungai, as no substitution was made and no application for revival was presented. Since the Nakuru suit no longer exists in law, there is no suit to consolidate with the present matter. The application for consolidation is therefore without merit and must be dismissed. The court emphasized that consolidation cannot be ordered where one of the suits has abated and has not been revived, and that the respondent, as registered owner, retains an independent cause of action in the current suit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's application for consolidation is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT MILIMANI
ELC NO. 622 OF 2015
JOHN MAINA MBURU.............................................PLAINTIFF
VERSUS
EVANS KAGECHE BORO....................................DEFENDANT
RULING
1. The 2nd Defendant/Applicant field a Notice of Motion dated 26th November, 2018 in which he seeks consolidation of this case with Nakuru ELC Case No. 213 of 2013 Alexander Kaburu Mungai Vs Evans Kageche Boro. The Applicant contends that Alexander Kaburu Mungai filed the Nakuru case against him. He filed a defence and raised a counter-claim in that suit. He therefore argues that the Nakuru suit should be transferred to Nairobi for consolidation with this suit to avoid the possibility of two conflicting decisions coming from the two cases.
2. The Applicant argues that the subject matter in the Nakuru case and this case is LR No. 398/18. The Plaintiff in this case states that he bought the suit property from the wife of Alexander Kaburu Mungai. The Applicant on the other hand is claiming that the suit property belongs to him.
3. The Plaintiff/Respondent opposed the Applicant’s application based on grounds of opposition dated 31st January, 2019 and filed in Court on 1st February, 2019. The Respondent argues that the Plaintiff in the Nakuru suit died on 21st April, 2013 and there has been no substitution carried out and therefore the suit abated one year from the death of the Plaintiff. The Respondent therefore states that there is no suit to be consolidated with this one. The Respondent further argues as the registered owner of the suit property, he has an independent cause of action and that the Applicant’s application is only meant to delay the finalisation of this suit.
4. I have considered the Application by the Applicant as well as the opposition to the same by the Respondent. The only issue for determination is whether this suit should be consolidated with Nakuru ELC Suit No. 213 of 2013. The Applicant does not deny the fact that the Plaintiff in the Nakuru suit died in 2013 and that there has been no substitution. This being the case, the Nakuru suit abated one year after the demise of the Plaintiff as no application for substitution was done. There is also no evidence of any application to revive the Nakuru suit. The Court cannot therefore order consolidation of a suit which has already abated. I find no merit in the Applicant’s application which is dismissed with costs to the Respondent.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 26th day of August, 2019.
E.O OBAGA
JUDGE
In the presence of Mr Wachakana for Mr Onindo for applicant and
Mr Mirie for Mr King’ara for Respondents.
Court Clerk : Hilda
E.O.OBAGA
JUDGE