https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3837

Jozef & another v Kizondo & 3 others (Land Case E055 & 3 of 2024 (Consolidated)) [2026] KEELC 3837 (KLR) (16 June 2026) (Directions) Neutral citation: [2026] KEELC 3837 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Land Case E055 & 3 of 2024 (Consolidated) LL Naikuni, J June 16, 2026 Between Van Den Brande Jozef 1st Plaintiff J & S Investments Limited 2nd Plaintiff and Said Ali Kizondo 1st Defendant Said Ali Majani 2nd Defendant Makoroma Juma Abdalla 3rd Defendant Said Mshenga Ruga 4th Defendant Directions I. Introduction 1.The matter before the Court concerns two ( 2 ) suits filed in respect of a failed sale transaction and alleged fraud in connection with Land Parcel No. Kwale/South Tiwi Beach/50 and the collateral property Kwale/Tiwi Beach Block/393 (Hereinafter referred to as “The Suit Properties”). The suits are:a.ELCLC/3/2024 – Van den Brande Jozef & J & S Investments Limited – Versus - Said Ali Kizondo & Akange Matende & Company Advocates, filed as a Plaint dated 20th March 2024 before the Environment and Land Court at Mombasa, premised on breach of the Sale Agreement dated 23rd August 2023, failure to effect transfer of Kwale/South Tiwi Beach/50, and failure to refund the purchase price of Kshs. 16,500,000/-.b.ELCLC/E055/2024 – Van den Brande Jozef & J & S Investments Limited – Versus - Said Ali Kizondo, Said Ali Majani, Makoroma Juma Abdalla & Said Mshenga Ruga, filed as a Plaint dated 30th August 2024 before the Environment and Land Court at Kwale, premised on breach of the Sale Agreement dated 16th August 2023, issuance of a fraudulent title deed, breach of the Agency Agreement dated 6th April 2024, and failure to renew the lease to Kwale/South Tiwi Beach/50 despite receipt of Kshs. 2,000,000/-. 2.The Court is invited to address the issue of multiplicity of suits and to give directions that would allow the dispute to proceed in an orderly, expeditious, and just manner. II. Background and Proceedings 3.At the mention of ELCLC/E055/2024, the attention of the Court was drawn to the existence of ELCLC/3/2024 filed before the Environment and Land Court at Mombasa, concerning the same parties and the same subject matter, namely the sale transaction over Land Parcel No. Kwale/South Tiwi Beach/50. The Court directed that both matters be listed together to consider their consolidation and to give uniform directions. 4.Upon perusing both files and hearing the submissions of counsel, the Court observed that:a.Both matters concern the same transaction: the purchase by J & S Investments Limited (2nd Plaintiff) of Land Parcel No. Kwale/South Tiwi Beach/50 from Said Ali Kizondo (1st Defendant), and the collateral security arrangement involving Land Parcel No. Kwale/Tiwi Beach Block/393.b.The same Plaintiffs, Van den Brande Jozef and J & S Investments Limited, and the same 1st Defendant, Said Ali Kizondo, are parties in both suits.c.The same firm, Elkana Mogaka & Associates Advocates, appears for the Plaintiffs in both records. 5.The Court thus issued interim directions requiring service of pleadings within three (3) days, for the Defendants to obtain instructions, and for a mention to report compliance and to consider consolidation and pre-trial arrangements. III. Brief Facts & Observations 6.Upon hearing the presentations by Counsel and upon perusing the record, the Honourable Court has made the following observations. Firstly, it is clear that this is a case of multiplicity of suits pertaining to a common subject matter and common parties. Secondly, both suits arise from the same transaction, being the sale and intended transfer of Land Parcel No. Kwale/South Tiwi Beach/50, and the related security arrangement over Kwale/Tiwi Beach Block/393. 7.The two suits are:a.The Plaint filed in ELCLC/3/2024 before the Environment and Land Court at Mombasa; andb.The Plaint filed in ELCLC/E055/2024 before the Environment and Land Court at Kwale. A. ELCLC/3/2024 – Van den Brande Jozef & J & S Investments Limited – Versus - Said Ali Kizondo & Akange Matende & Company Advocates 8.From a keen perusal of the records, ELCLC/3/2024 was instituted by way of a Plaint dated 20th March 2024 and received by the Environment and Land Court at Mombasa on 22nd March 2024. The cause of action is premised on the Sale Agreement dated 23rd August 2023 between the Plaintiffs and the 1st Defendant for the purchase of Land Parcel No. Kwale/South Tiwi Beach/50 measuring 4.0 Acres for a consideration of Kenya Shillings Twenty Million (Kshs. 20,000,000/-). 9.The Plaintiffs aver that they appointed the 2nd Defendant, Akange Matende & Company Advocates, as their advocates and intermediary in the transaction. Pursuant to a professional undertaking, the total amount of Kenya Shillings Sixteen Million, Five Hundred Thousand (Kshs. 16,500,000/-) was paid to the 2nd Defendant to be held on behalf of the parties, with a completion period of 90 days. The balance of Kenya Shillings Three Million, Five Hundred Thousand (Kshs. 3,500,000/-) was to be paid upon completion of the transfer. 10.The Plaintiffs further aver that as per the Sale Agreement, it was expressly agreed that in the event the sale was unsuccessful, the total deposit held by the 2nd Defendant would be promptly returned and reimbursed to the Plaintiffs. The Plaintiffs allege that the 2nd Defendant, in contravention of the professional undertaking, failed to refund or reimburse the purchase price of Kshs. 16,500,000/- despite several demands. As per Clause 36 of the agreement, the 1st Defendant surrendered the title to Land Parcel No. Kwale/Tiwi Beach Block/393 as security, which was to be returned upon successful transfer of Kwale/South Tiwi Beach/50, or forfeited to the Plaintiffs in the event of failure to complete. 11.The Plaintiffs in ELCLC/3/2024 seek the following reliefs:a.A declaration that the 1st and 2nd Defendants are in breach of the Sale Agreement.b.An order that Land Parcel No. Kwale/Tiwi Beach Block/393 be transferred to the Plaintiffs and title deed issued in the Plaintiffs’ name.c.An order directing the 1st Defendant to transfer and facilitate the issuance of title deed for Kwale/South Tiwi Beach/50 upon payment of the balance of Kshs. 3,500,000/-.d.In the alternative, an order for refund of the purchase price of Kshs. 16,500,000/- by the 1st and 2nd Defendants.e.General damages for loss of use and financial loss; and costs of the suit. B. ELCLC/E055/2024 – Van den Brande Jozef & J & S Investments Limited – Versus - Said Ali Kizondo, Said Ali Majani, Makoroma Juma Abdalla & Said Mshenga Ruga 12.From the filed pleadings, ELCLC/E055/2024 was instituted by way of a Plaint dated 30th August 2024 before the Environment and Land Court at Kwale. The primary cause of action concerns the same sale transaction over Land Parcel No. Kwale/South Tiwi Beach/50, and introduces further causes of action arising from subsequent events. 13.The Plaintiffs aver that on or about 16th August 2023, the 2nd Plaintiff entered into a Sale Agreement with the 1st Defendant, Said Ali Kizondo, for the purchase of Land Parcel No. Kwale/South Tiwi Beach/50 measuring 4.0 Acres for a consideration of a sum of Kenya Shillings Twenty Million (Kshs. 20,000,000/-). The 1st Defendant was not the registered owner of the land at the time of signing the agreement and only became registered owner on 3rd October, 2023. The sum of Kenya Shillings Sixteen Million Five Hundred Thousand (Kshs. 16,500,000/-) was paid upon execution and secured by a professional undertaking, with the balance of a sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000/-) payable upon completion. 14.The Plaintiffs further aver that, as per Clause 3.6 of the sale agreement, the 1st Defendant surrendered the title to Land Parcel No. Kwale/Tiwi Beach Block/393 as security for the successful completion of the transfer of Kwale/South Tiwi Beach/50. The consequence of failure to complete the primary transaction was the vesting of Kwale/Tiwi Beach Block/393 in the Plaintiffs. 15.The Plaintiffs allege that the 1st Defendant, despite failing to complete the transfer, issued the Plaintiffs with a fraudulent and fake title deed to Land Parcel No. Kwale/South Tiwi Beach/50. Following the return of the part payment of a sum of Kenya Shillings Sixteen Million Five Hundred Thousand ( Kshs. 16,500,000/-) by the Plaintiffs’ advocates pursuant to the professional undertaking, the matter did not conclude. 16.On 6th April, 2024, a meeting was held at which the 1st Defendant admitted to the issuance of a fake title deed. An Agency Agreement was thereafter entered into on 6th April, 2024, under which the 1st Defendant appointed the 2nd Defendant (Said Ali Majani) and the 3rd Defendant (Makoroma Juma Abdalla) as agents to facilitate the lease renewal and completion of transfer of Kwale/South Tiwi Beach/50 to the 2nd Plaintiff. The 4th Defendant (Said Mshenga Ruga) was also a party to the agency agreement. A further sum of Kenya Shillings Two Million (Kshs. 2,000,000/-) was deposited by the 1st Plaintiff to facilitate the lease renewal process, to be completed within 60 days of 6th April, 2024. 17.The 60-day period expired in July, 2024 without completion of the lease renewal or transfer. The Plaintiffs contend that the Defendants are accordingly in breach of both the original Sale Agreement and the Agency Agreement of 6th April 2024. 18.The Plaintiffs in ELCLC/E055/2024 seek the following reliefs:a.A declaration that the Defendants are in breach of the Agency Agreement dated 6th April, 2024.b.An order that Land Parcel No. Kwale/Tiwi Beach Block/393 be transferred to the Plaintiffs and title deed issued in their name.c.An order for permanent injunction restraining the 1st Defendant from dealing with Land Parcel No. Kwale/Tiwi Beach Block/393.d.A vesting order transferring Land Parcel No. Kwale/Tiwi Beach Block/393 to the Plaintiffs.e.General damages for breach of the Agency Agreement; and costs of the suit. C. The Defendants’ Statement of Defence in ELCLC/E055/2024 19.The Defendants filed a Statement of Defence dated 30th October, 2024. The Defendants admit the existence of the Sale Agreement dated 16th August, 2023 for Land Parcel No. Kwale/South Tiwi Beach/50 but averred that the Plaintiffs were at all material times fully aware that the 1st Defendant was in the process of renewing the lease to the property and that the transaction was on a willing buyer, willing seller basis. 20.The Defendants averred that the Plaintiffs, having been aware of the state of ownership and the pending lease renewal at the time of contracting, are estopped from blaming the Defendants for the collapse of the transaction, and that having proceeded with full knowledge, they participated in an illegality and could not seek to benefit therefrom. The Defendants further contend that the Plaintiffs have approached this Court with unclean hands. 21.The Defendants confirmed that once the sale transaction was unsuccessful, the 2nd Plaintiff was refunded the full sum of Kenya Shillings Sixteen Million Five Hundred Thousand (Kshs. 16,500,000/-) together with the legal costs expended. The Defendants aver that the title to Kwale/Tiwi Beach Block/393 was given solely as security for the deposit and that, following the full refund of the purchase price on 17th April, 2024, the 2nd Plaintiff was no longer entitled to hold the said title or seek a vesting order in respect thereof, and that to do so would amount to unjust enrichment. 22.The Defendants deny the existence of any fake title with respect to Land Parcel No. Kwale/South Tiwi Beach/50, deny knowledge of the alleged meeting of 6th April, 2024, deny the existence of any Agency Agreement, and deny receipt of a sum of Kenya Shillings Two Million (Kshs. 2,000,000/-) from the Plaintiffs for lease renewal purposes. The Defendants further deny entering into any of the alleged contracts. 23.The Defendants gave notice that they shall raise a preliminary point of law on abuse of due process of the Court, on the ground that there exists a similar suit over the same subject matter already filed before this Court seeking similar orders and pending hearing and determination. IV. Analysis And Determination 24.Having considered all the pleadings in both suits, the responses and the envision of the Constitution of Kenya 2010 and the relevant provisions of law, I do frame the following issue for consideration. (a) Whether ELCLC/3/2024 and ELCLC/E055/2024 should be consolidated? 25.The law governing the consolidation of files is founded under Section 80 (h) of the Civil Procedure Act, Cap. 21 and Order 11 Rule3 (I) (h) of the Civil Procedure Rules, 2010 states as follows: -3. (1)With a view to furthering expeditious disposal of cases and case management the court shall within thirty days after the close of pleadings convene a Case Conference in which it shall—(a)-------(h)Consider consolidation of suits; 26.The Civil Procedure Rules mandates courts are to consider consolidations of suit. In so doing, courts to be guided by the following three (3) legal parameters. These are: -a)Do the same question of law or fact arise in both cases?b)Do the rights or reliefs claimed in the two cases or more arise out of the same transaction or series of transactions?c)Will any party be disadvantaged or prejudiced or will consolidation confer undue advantage to the other party? 27.The principles to consider while consolidating suits were amply set out in the case of:- “Nairobi ELC Suit No. 1000 of 2012 Joseph Okoyo – Versus - Edwin Dickson Wasunna (2014) eKLR”, which cited with approval Mombasa “HCCC No. 992 of 1994 Nyati Security Guards and Services – Versus - Municipal Council of Mombasa wherein the factors were enumerated as follows; -“The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where: -(a)Some common question of law or fact arises in both or all of them; or(b)The rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or(c)For some other reason it is desirable to make an order for consolidating them.” 28.Additionally, in the case of:- “Law Society of Kenya – Versus – The Centre for Human Rights & Democracy, Supreme Court of Kenya Petition No. 14 of 2013 the SOK held that: -“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it” 29.While Maraga J, as he then was, held in the case of: “Municipal Council of Mombasa – Versus - Municipal Council of Mombasa [2004] eKLR that: -‘Consolidation is a process by which two or more suits or matters are by order of court combined or united and treated as one suit or matter. The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action.The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where: - 1.some common question of law or fact arises in both or all of them; or 2.the rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or 3.for some other reason it is desirable to make an order for consolidating them. 30.Upon close scrutiny of the pleadings and submissions, it is evident that both ELCLC/3/2024 and ELCLC/E055/2024 relate to the same underlying transaction, being the sale agreement for Land Parcel No. Kwale/South Tiwi Beach/50, the security arrangement over Land Parcel No. Kwale/Tiwi Beach Block/393, and the subsequent failure to complete the transfer. While the former suit was instituted at Mombasa against the 1st Defendant and the Plaintiffs’ former advocates, the latter suit was filed at Kwale and extends the cause of action to include the events of 6th April, 2024, namely the alleged Agency Agreement, the admission of a fake title, and the further deposit of a sum of Kenya Shillings Two Million (Kshs. 2,000,000/-) for lease renewal purposes. 31.The Court observes that the underlying questions in both matters revolve around the same core dispute: the validity and enforceability of the sale transaction over Kwale/South Tiwi Beach/50, the entitlement to Kwale/Tiwi Beach Block/393 as collateral, and the reliefs arising therefrom. The reliefs sought – whether transfer of Kwale/Tiwi Beach Block/393, refund of purchase consideration, vesting orders, or general damages – cannot be determined in isolation without risking inconsistent or contradictory findings by this Court over the same transaction and the same properties. 32.Both suits share the same Plaintiffs and the same 1st Defendant, Said Ali Kizondo, as well as the same firm of advocates, Elkana Mogaka & Associates, acting for the Plaintiffs in both matters. These overlaps demonstrate that the two suits stem from the same transaction and series of events. 33.The Court has further noted that the Defendants in their Statement of Defence in ELCLC/E055/2024 have themselves acknowledged the existence of a similar pending suit over the same subject matter, and have flagged a preliminary objection on grounds of abuse of court process. This acknowledgement by the Defendants fortifies the Court’s finding that the two suits are duplicative and ought to be managed as one. 34.The Court has also noted that the suits are at comparable procedural stages, and consolidation will not occasion any delay or prejudice. On the contrary, it will save time, judicial resources, and costs, in line with the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 on the overriding objective. 35.Guided by the reasoning in the case of:- “Law Society of Kenya – Versus - Centre for Human Rights & Democracy (Supra) and “Joseph Okoyo – Versus - Edwin Dickson Wasunna (Supra)”, this Court finds that the consolidation of these suits will serve the ends of justice by enabling one coherent and comprehensive determination on the rights and obligations of the parties arising from the sale transaction over Land Parcel No. Kwale/South Tiwi Beach/50 and the security property Kwale/Tiwi Beach Block/393. 36.The Court thus holds that both suits raise common questions of law and fact, arise from the same transaction and series of transactions concerning the same parties and the same properties, and that consolidation will ensure consistency, avoid duplication, and facilitate expeditious resolution without prejudice to any party. V. Conclusion & Directions 37.Ultimately, the upshot of this in-depth and elaborate analysis and based on the inherent powers vested in me under the provisions of Sections 1, 1A, 3, 3A of the Civil Procedure Act, cap. 21, Section 3 of Environment and Land Court Act, No. 19 of 2011, Section 101 of the Land Registration, No. 3 of 2012, Sections 128 and 150 of the Land Act No. 6 of 2012, I proceed to make the following orders/directions: -a.THAT the two suits, ELCLC/3/2024 and ELCLC/E055/2024, be and are hereby consolidated pursuant to the provision of Section 80 ( h) of the Civil Procedure Act, Cap. 21 and the Committees Rules on Order 11 Rule 3 ( h ) ( 1) of the Civil Procedure Rules, 2010as they relate to the same parties, the same subject matter, and the same transaction;b.THAT the file ELCLC/E055/2024 be the lead file where all filings of pleadings will be done and proceedings recorded from henceforth.c.THAT the Plaint in ELCLC/3/2024 be deemed as incorporated within the consolidated proceedings in ELCLC/E055/2024, and the Plaintiffs shall, if they deem necessary, file a consolidated or amended Plaint within twenty-one (21) days from the date of these directions, failing which the existing Plaint in ELCLC/E055/2024 shall stand as the operative pleading.d.THAT the Defendants shall, within twenty-one (21) days of service of any amended Plaint or within twenty-one (21) days from the date of these directions (whichever is applicable), file and serve a consolidated or amended Statement of Defence in response to the operative pleading.e.THAT the matter be mentioned on 21ST July, 2010 for taking of elaborate and further directions with regard to disposal of the matter and fixing of a hearing date, which should be at least within the next one hundred and eighty (180) days from the date hereof before ELC No. 2, Kwale.f.THAT in the given circumstances, the scheduled hearing of 7th July, 2026 be and is hereby Vacated.g.THAT an order be and is hereby made directing the Land Registrar, Kwale County, to register an inhibition against Land Parcels Nos. Kwale/Tiwi Beach Block/50 and Kwale/Tiwi Beach Block/393 pending the hearing and final determination of the consolidated suit, in order to preserve the said suit property.h.THAT costs of and incidental to these directions shall be in the cause. IT IS SO ORDERED ACCORDINGLY. DIRECTIONS DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED & DATED AT KWALE THIS 16TH DAY OF JUNE 2026……………………………………HON. MR. JUSTICE L.L NAIKUNIENVIRONMENT & LAND COURTATKWALEDirections delivered in the presence of:a. Mr. Daniel Disii, the Court Assistant.b. Mr. Elkana Mogaka Advocates for the Plaintiffs.c. Mr. Mare Advocates for the Defendants in ELCLC/E055/2024.d. No appearance for the 2nd Defendant in ELCLC/3/2024.ELCLC E055 of 2024 HON. JUSTICE L.L NAIKUNI Page 5 of 5