[2015] KEHC 6646 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE NO. 251 OF 2008 (HCCC NO. 1965 OF 1991)

NYANJA HOLDINGS LIMITED ::::::::::::::::::::::::::::::: 1ST PLAINTIFF

GEORGE NJAU MBUGUA NYANJA :::::::::::::::::::::::: 2ND PLAINTIFF

ENID N. NYANJA ::::::::::::::::::::::::::::::::::::::::::::::::: 3RD PLAINTIFF

VERSUS

CITY FINANCE BANK LIMITED :::::::::::::::::::::::::: 1ST DEFENDANT

REDMARS HOLDINGS LIMITED :::::::::::::::::::::::: 2ND DEFENDANT

CONSOLIDATED WITH

CIVIL CASE NO. 1965 OF 1991

NYANJA HOLDINGS LIMITED. ::::::::::::::::::::::::::::::: 1ST PLAINTIFF

GEORGE NJAU MBUGUA NYANJA :::::::::::::::::::::::: 2ND PLAINTIFF

ENID N. NYANJA ::::::::::::::::::::::::::::::::::::::::::::::::::::: 3RD PLAINTIFF

VERSUS

CITY FINANCE BANK LIMITED :::::::::::::::::::::::::: 1ST DEFENDANT

R U L I N G

The Notice of Motion application before the court is dated 9th July 2012 filed by the 1st Defendant. It is filed pursuant to Sections 1A, 1B 6 & 7 of the Civil Procedure Act and Order 11 Rule 3 (1) (h) and Order 51 Rule 1 of the Civil Procedure Rules and all the inherent of the court. The application seeks the following orders:-

This application be certified urgent and proceedings herein be stayed pending hearing and determination of this application.

That the Plaintiff’s suit against the 1st Defendant be struck out.

Alternatively that this suit be consolidated with High Court Civil Suit No. 1965 of 1991 Nyanja Holdings Limited, George Njau Mbugua Nyanja and Mrs. Enid N. Nyanja Vs City Finance, so both suits may be heard and determined together.

That alternatively that that there be a stay of proceedings in the matter pending hearing and determination of HCCC No. 1965 of 1991 Nyanja Holdings Limited, George Njau Mbugua Nyanja and Mrs. Enid N. Nyanja Vs City Finance, so both suits may be heard and determined together.

That costs of this application be provided for.

The application is premised on the grounds set out therein and is supported by affidavit of James Gitau Singhdated 9th July 2012, with its annextures.

The application is opposed vide Grounds of Opposition dated 17th July 2012 and by affidavit of George Njau Mbugua Nyanja, the 2nd Plaintiff herein, filed in court on 18th July 2012.

The facts forming the basis of the two suits above all abundantly documented in the pleadings therein and I will not reinstate them in this Ruling except for the noting that the suit Number HCCC No. 251 of 2008 was filed about 8 years after the filing of the suit number HCCC No. 1965 of 2001. In this application, the Applicant has submitted that the two suits pending before this court arise out of the same facts and law, and that the issues in question between the Plaintiff and the 1st Defendant have already been determined in HCCC No. 1965 of 1991 Nyanja Holdings Limited, George Njau Mbugua Nyanja and Mrs. Enid N. Nyanja Vs City Finance. In the alternative, it is submitted that the consolidation of the two suits is necessary for the proper determination of the whole of the Plaintiff’s claim. It was further submitted for the Applicant that no party will suffer any prejudice by consolidation. The two suits can conveniently be disposed of together as they involve the same subject matter, advocates, issues of law and witnesses.

The Applicants further submitted that the need for consolidation is greater considering that the advocates for the parties are the same, and that currently the two suits are being heard by the same Judge.

On their part, the Plaintiff/Respondents have opposed the application on the grounds that the said application is incurably defective, the same does not lie, it is incompetent inter-a-lia in that it is supported by an incompetent affidavit. The Plaintiff submitted that the application is a grave abuse of the process of this court and purely meant to scuttle the hearing of the suit, which is already part heard. The application is coming too late in the day, as the suit sought to be struck out and/or to be consolidated (with HCCC No. 1965 of 1991) was filed before this court more than 8 years ago. For a period of more than 8 years, the 1st Defendant/Applicant has always known the existence of the said two suits. The 1st Defendant/Applicant is guilty of laches and has acquiesced the present state of things whereby the two suits are being heard differently and separately. The application is coming too late inter-a-lia in that the two suits are already part heard before different benches of this court. The parties in both suits are different and therefore the issue of Consolidation and/or striking out does not arise.

Parties filed written submissions to the application which I have carefully considered. From the outset I want to state that it is the desire of all parties, and including this court, that matters once filed in court should be disposed off as soon as possible. It is highly regratable that a suit filed in 2001 has to date never been heard, and another suit, almost of similar import, had to be filed in 2008. Both suits remain unheard. I would also want to believe that it is in the interest of all parties to have their matters heard as soon as possible, and to follow the least legal shortcut, if one is available, to dispose of the matter. That therefore means that if a consolidation of suits would aid a faster hearing and finalisation of the matter, an application to consolidate would in all fairness not be seriously or hotly contested, especially where all the parameters for consolidation exist. I have carefully considered the pleadings in the two suits. Save that in HCCC No. 251 of 2008 there is a 2nd Defendant, the other particulars of the suit appear to remain similar. These include the subject matter which is LR. No. 7583/1 Karen Estate Nairobi, except that in the second suit, the suit property had been transferred to the 2nd Defendant in that suit. In my view, these are matters which can safely be canvassed in one hearing consolidating the two suits.

It is easy to feel the misgivings of the Plaintiff who believe that there is no goodwill on the part of the Respondents to have the suit heard and determined, given then the suits have ideally overstayed their life in this court. However, when we consider the prayers sought, there is also an element of good faith on the part of the Applicant especially when the Applicant seeks the prayers in their alternatives, giving this court a wide range of orders to grant, including the possibility of staying one suit until the other is determined. I am therefore persuaded by the submission that the suits should be consolidated. This reasoning is supported by the fact that in HCCC No. 1965 of 2001, this court on 23rd May 2012 gave the parties the option of starting the hearing denova, an option the parties settled on. In the case of HCCC No. 251 of 2008, only PW 1 has given evidence, and the proceedings have been typed making it easier to proceed from where the witness left off.

However, if there is still any doubts as to the need for consolidation then the same is erased by the Plaintiff’s Pleadings in HCCC No. 251 of 2008. At paragraph 21 of the Plaint, the Plaintiffs gave their reasons for filing the suit. The Plaintiffs first admitted that there were other suits pending between them and the 1st Defendant being HCCC No. 1506 of 2000 (consolidated with HCCC No. 993 of 2002) and HCCC NO. 1965 of 1991 (or 2001?) the Plaintiffs then bound themselves in the following terms:-

“The Plaintiffs shall therefore at the appropriate time make an application to seek for the said two (2) suits to be consolidated together.”

In my view, the said appropriate time has now come, and the Plaintiff is bound by its own pleadings. However, I do not view this position as a win or loss for either party. I view it as the appropriate process especially in the application of the principles contained in Sections 1A, 1B and 3A of the Civil Procedure Act which states:-

1A(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).

(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.

1B. (1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—

(a) the just determination of the proceedings;

(b) the efficient disposal of the business of the Court;

(c) the efficient use of the available judicial and administrative resources;

(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and

(e) the use of suitable technology.

3A.Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

In the upshot, the application is allowed in terms of prayer number 3 thereof and this suit HCCC No. 251 of 2008 is herewith consolidated with HCCC No. 1965 of 1991 (or 2001?) Nyanja Holdings Limited, George Njau Mbugua Nyanja and Mrs. Enid N. Nyanja Vs City Finance. Costs shall be in the cause.

Orders accordingly.

READ, DELIVERED DATED AND AT NAIROBI THIS 30TH DAY OF JANUARY 2015

E. K. O. OGOLA

JUDGE

PRESENT:

M/s Kimaru holding brief for Machira for the Plaintiffs

M/s Oyugi holding brief for Gitau for Defendant

Teresia – Court Clerk