[2020] KEELC 3682 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO 616 OF 2013

NICHOLAS KIPROP KOSIBEI & 49 OTHERS..................................PLAINTIFFS

VERSUS

WILLIE KIPNGENO KOMEI & 33 OTHERS...............................DEFENDANTS

R U L I N G

1. The Plaintiffs/Applicants by a Notice of Motion dated 12th June 2019 expressed to be brought under the provisions of Order 11 Rule 3 of the Civil Procedure Rules, Article 159 (2) (d) of the Constitution, and Sections 1A, 1B and 3A of the Civil Procedure Act prays for an order that the instant suit and Nakuru ELC No.38 of 2019 be consolidated. The application is supported on the grounds set out on the body of the application and the affidavit sworn in support thereof by Michael Chepkwony the 6th plaintiff in the suit.

2. The plaintiff in support of the application for consolidation aver that both the instant suit and Nakuru ELC No.38 of 2019 raise common questions of law and facts and it would therefore be desirable and convenient that both matters be disposed of at the same time. The defendants vide a replying affidavit dated 12th July 2019 oppose the application for consolidation.The defendants aver that the application was an abuse of the Court process arguing that the instant suit was filed way back in 2013 and that overtime the plaintiffs have filed several applications including an application dated 26th September 2018 to further amend the plaint which was ruled upon on 5th March 2019. The Court dismissed the application and although the plaintiffs filed a notice of appeal against the dismissal no appeal has been filed.

3. The Respondents contend that the filing of the new suit ELC No. 38 of 2019 is an afterthought and was calculated to achieve what the applicants failed to get when the application for amendment was disallowed. Additionally, the Respondents argue that the new suit Nakuru ELC No.38 of 2019 offends section 6 of the Civil Procedure Act Cap 21 Laws of Kenya and is subjudice the earlier suit ELC No.616 of 2013 .

4. To contextualise the application for consolidation it is necessary to revert to the content of the two suits as it is only by doing so that the Court would be able to determine whether common issues of law and/or common facts are raised in the two suits. The plaintiffs 1-49 were members of the 50th plaintiff, Kalenjin Enterprises Ltd, a land buying Company while the defendants 1-28 were members of the 29th defendant, Mwariki Company Ltd, also a land buying Company. The 50th Plaintiff and the 29th defendant it is pleaded jointly purchased several parcels of land that comprised Rhoda sisal Estate (Parcels 11094, 11095, 1021, 1022, 8894 and 6273). The subdivision of the combined parcels was to be done such that the 50th plaintiff got 5,900 acres while the 29th defendant got 4,800 acres. After the merger and subdivision the 50th plaintiff got land parcels 13105 and 6273 while the 29th defendant got land parcel 13106.

5. The plaintiffs contend that the 29th defendant when it subdivided its land portion to its members, it encroached onto a portion of land measuring approximately 83 acres of the 50th plaintiff’s land portions and allocated to its members the various parcels of land detailed under paragraph 14 of the plaint. It is these subdivisions the plaintiff want annulled and the titles issued to the individual members of the 29th defendant cancelled. The plaintiffs seek a declaration that they are entitled to the 83 acres (approximately) encroached upon by the defendants.

6. The defendants in an amended defence filed on 20th June 2014 contend that the subdivision of the land parcels jointly purchased by the plaintiffs and the defendants was appropriately carried out. The defendants deny a portion of 83 acres was unlawfully excised from the portion belonging to the plaintiffs. The defendants claim they occupy and are in possession of the portion of 83 acres that the plaintiffs lay claims to and that the plaintiffs are not in possession as they claim.

7. In the new suit Nakuru ELC No.38 of 2019 all the plaintiffs in the earlier suit are named as plaintiffs. The Defendants are the Director of Survey, the Land Registrar Nakuru, the Attorney General and Mwariki Company Ltd. In this suit, save for the introduction of the 1st- 3rd defendants the content is the same as in the earlier suit. The plaintiffs aver that the 50th plaintiff purchased jointly with the 4th defendant various land parcels previously known as Rhoda Estate Farms with the object of settling their members on the land purchased. The 50th plaintiff was to get 5,900 acres and the 4th defendant 4,800 acres. The plaintiffs contention is that after the merger of the several parcels and subdivision, the 4th defendant got LR No.13106 measuring 4,800 acres while the 50th plaintiff got LR No.13105 and 6273 both measuring 5900 acres. It is the plaintiffs assertion that the 4th defendant during subdivision of its portion to its members encroached onto the portion of the 50th plaintiff’s land and unlawfully and illegally excised a portion of 83 acres out of the plaintiff’s land and allocated to its members as particularised under paragraph 18 of the plaint. The plaintiff in the fresh suit inter alia seeks an order for the resurvey of LR Nos. 13106,13105 and 6273 to ascertain their measurements and further an order that the District Surveyor undertake a fresh survey of the original parcel Nos 13106, 13105 and 6273 to re-align them with the agreed acreages of 4,800 and 5,900 respectively.

8. The parties canvassed the application by way of written submissions. I have perused and considered the written submissions filed by the parties. The guiding principles in considering an application for consolidation were aptly outlined in the case of Security Guards and Services Ltd –vs- Municipal Council of Mombasa (2000) eKLR where the Court stated as follows:-

“The situations in which consolidation can be ordered include where there are two or more suits for matters pending in the same Court where:-

(a) Some common question of law or fact arises in both or all of them;

(b) The rights or reliefs claimed in them are in respect of or arises out of the same transaction;

(c) For some other reasons, it is desirable to make an order for consolidating them.

9. A Court will consider consolidation favourably in instances where the witnesses in the separate suits are common and it is more expedient and convenient to hear the suits together. The Court also needs to be alive to the possibility of having conflicting decisions should the matters be heard separately. The Court additionally needs to consider whether the subsequent suit would be considered to be subjudice the earlier suit having regard to the provisions of Section 6 of the Civil Procedure Act.

10. In the instant matter there is no dispute that ELC No.616 of 2013 and ELC No.38 of 2019 relate to the same subject matter. The Principal parties can easily be said to be Kalenjin Enterprises LtdandMwariki Company Ltd. Both are Land buying Companies who came together and bought land to settle their respective members. The dispute appear to be in regard to the manner the Land was subdivided between the two land buying Companies after they purchased the land. Kalenjin Enterprises Ltd claims Mwariki Company Ltd appropriated to itself some 83 acres of land which did not belong to them. From the pleadings these 83 acres have been subdivided and titles issued to the defendants. The defendants do not admit there was any encroachment by them. In ELC No.38 of 2019 the 1st – 3rd Defendants are merely notional parties. The real contestants are the (50th plaintiff) and the 4th defendant who are both parties in ELC No. 616 of 2013. The 1st and 2nd defendants in ELC No. 38 of 2019 could easily be witnesses of either party in ELC 616 of 2013 where they could be tasked to explain how the subdivision and the registration of the suit lands were carried out on the basis of the records that they hold.

11. I cannot see how an order of consolidation would serve any purpose. If anything, consolidation of the two suits could end up further confusing the issues that are up for trial by the Court. Without making a finding that there was something wrong with the survey and subdivision of the suit land, the Court cannot make an order for a resurvey and/or cancellation of the subdivisions. The burden to prove there was encroachment by the defendants onto the plaintiffs land remains with the plaintiff. In filing ELC No.38 of 2019 and introducing new parties, the Director of Survey and the Land Registrar while in ELC No 616 the issue is whether there was unlawful encroachment by the defendant in my view is to obscure the real issues. The issue whether the subdivision was properly done as between the principal parties in my view can be properly dealt with in the earlier suit. Whether or not a resurvey could result is dependent on the determination of the earlier suit namely ELC No. 616 of 2013.

12. In the premises I am not persuaded it is necessary to consolidate this suit with ELC No. 38 of 2019 as it will not be convenient to try the two suits together. Accordingly I disallow the application for consolidation by the plaintiffs dated 12th June 2019. As the two suits relate to the same parcels of land that are the subject matter in this suit, I order that Nakuru ELC No. 38 of 2019 be stayed to await the determination of the present suit. The determination of the present suit will definitely have a bearing to that suit and it is therefore proper that the said later suit be stayed until the present suit is heard and determined. The defendants will have the costs of the application.

13. Orders accordingly.

RULING DATED SIGNED AND DELIVERED AT NAKURU THIS 13TH DAY OF FEBRUARY 2020.

J M MUTUNGI

JUDGE