Ogle & 29 others v Bashir & 10 others; Kenya Development Corporation & 2 others (Interested Parties) (Environment and Land Constitutional Petition E008 of 2025) [2026] KEELC 4767 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT GARISSA** **ELC CONSTITUTIONAL PETITION NO. E008 OF 2025** **IN THE MATTER OF: ARTICLES 3(1), 22(1) & 2(B) AND 23 (3) OF THE CONSTITUTION OF** **KENYA, 2010** **IN THE MATTER OF: ARTICLES 1(1) , (2), (3), (4) (B), 2(1), 3(1), 10(1), (2), 22(2)** **(A), 23, 35, 40, 47(1), (2) & (3), 64, 159, 162(2) (B), 258(2) (A)** **AND 259 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF: SECTION 4,6(1), (2), (3), (4), (6), (8), 31(1) AND (2), OF THE** **COMMUNITY LAND ACT CAP 287** **BETWEEN** **MOHAMED ABDI OGLE ..............…...……………………………….1ST PETITIONER** **BARE ABDI OGLE…………………………………………………….2ND PETITIONER** **WEHLIYE MAALIM…………………………………………………..3RD PETITIONER** **ABDIHAKIM HAJI… ............................................................................4TH PETITIONER** **SIYAD BARE ....................................……………………………..……5TH PETITIONER** **KHEYRA ABDI KHALIF ......................................................................6TH PETITIONER** **HALIMA MOHAMED OSMAN ...........................................................7TH PETITIONER** **ISSACK ASLI NOOR .............................................................................8TH PETITIONER** **SAINAB SALAN ALI..………………………………….…….………..9TH PETITIONER** **BARNAKA ALI ABDI………………………………………………...10TH PETITIONER** **SAHARA MOHAMUD HUSSEIN……………………………………11TH PETITIONER** **DEKA ARESS ISSACK ........................................................................12TH PETITIONER** **SAFIA IBRAHIM NUNOW…………………………………………..13TH PETITIONER** **HABIBA IBRAHIM NUNOW .............................................................14TH PETITIONER** **SAADIA GURE IDLE ...........................................................................15TH PETITIONER** **KHATRA DUBOW MUHUMED ........................................................16TH PETITIONER** **MARWA HAJIR MOHAMED ............................................................17TH PETITIONER** **LUL BASHIR DAHIR ..........................................................................18TH PETITIONER** **MARYAN ARES ABDI. .......................................................................19TH PETITIONER** **SAHARA MOHAMUD…………………………………….……...…..20TH PETITIONER** **FILIS DUBOW MAHAMED ................................................................21ST PETITIONER** **ZEYNAB OLOW ABDILLE ...............................................................22ND PETITIONER** **AMINA YARE ABDI… ........................................................................23RD PETITIONER** **HABIBA GEDI HARBI. .......................................................................24TH PETITIONER** **AMINA MOHAMED GULLED ..........................................................25TH PETITIONER** **ADEY BURALE ....................................................................................26TH PETITIONER** **BAREY MUHUMED ALI. ...................................................................27TH PETITIONER** **SALATHA ABDI MAALIM ................................................................28TH PETITIONER** **AMINA MOHAMED NURIE...............................................................29TH PETITIONER** **ABDIRAHMAN BILLE………………………………………………30TH PETITIONER** **AND** **ABDI BASHIR .......................................................................................1ST RESPONDENT** **HASSAN BASHIR .................................................................................2ND RESPONDENT** **MOHAMUD AHMED KHALIF .........................................................3RD RESPONDENT** **GATSBY AFRICA ................................................................................4TH RESPONDENT** **CHIEF LANDS REGISTRAR .............................................................5TH RESPONDENT** **COUNTY GOVERNMENT OF WAJIR ............................................6TH RESPONDENT** **CABINET SECRETARY, MINISTRY OF LAND PUBLIC** **WORKS, HOUSING AND** **URBAN DEVELOPMENT ..................................................................7TH RESPONDENT** **HON. ATTORNEY GENERAL ..........................................................8TH RESPONDENT** **AND** **KENYA DEVELOPMENT CORPORATION ......................1ST INTERESTED PARTY** **COUNTY COMMISSIONER WAJIR COUNTY.. ..............2ND INTERESTED PARTY** **NATIONAL LAND COMMISSION ………………………..3RD INTERESTED PARTY** **RULING** # PART I: INTRODUCTION AND BACKGROUND ## Introduction 1. The Petitioner/Applicant has moved this court by way of Notice of Motion dated 9th February 2026, principally seeking the consolidation of this Petition, **Garissa ELC Constitutional Petition No. E008 of 2025**, with **Garissa ELC Case No. E009 of 2025, Hassan Bashir v Shukri Maalim Elmi & Mohamed Osman Kulac**. In the alternative, the Applicant prays that, should consolidation be declined, Garissa ELC Case No. E009 of 2025 be stayed pending the hearing and determination of the present Petition. The application also seeks costs. 2. The Motion is expressed to be brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 51 rule 1 and Order 38 rule 2 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. It is supported by the affidavit of the 1st Petitioner sworn on 9th February 2026, the grounds appearing on the face of the application and the Applicant’s further affidavit sworn on 16th March 2026. 3. The present Petition concerns competing claims over land situated within Wajir County. The Petitioners contend that the land constitutes community land belonging to and occupied by members of the local community and challenge its alleged alienation, registration and occupation by the 2nd Respondent. They seek, among other reliefs, constitutional declarations concerning the legal status of the land and the validity of the actions complained of. 4. Parallel to these proceedings is **Garissa ELC Case No. E009 of 2025**, instituted by the present 2nd Respondent against some of the present Petitioners. In that suit, the 2nd Respondent asserts proprietary rights over the disputed land and seeks reliefs founded upon his alleged ownership and occupation thereof. 5. According to the Applicant, although the two proceedings were commenced through different procedural vehicles, they arise from the same underlying dispute, concern substantially the same parties, relate to the same physical area of land as described by the respective parties, and will require the Court to determine overlapping factual and legal questions. It is on that basis that the Applicant urges the Court to consolidate the proceedings. 6. The Applicant further states that the present Petition was preceded by **Garissa ELC Constitutional Petition No. E002 of 2025, Ahmed Omar Hadle & Others v Abdi Bashir & Others**, which was subsequently withdrawn. They contend that during the pendency of that Petition, **Garissa ELC Case No. E009 of 2025** had been stayed and argue that, should consolidation be declined, a similar order of stay ought to issue in the present proceedings. 7. At the outset, it is material that the parties approach the application on the common premise that the present Petition and **Garissa ELC Case No. E009 of 2025** concern the same physical area of land, although they describe and characterize it differently. The Petitioners describe the disputed property as an unsurveyed parcel measuring approximately 200 acres situated along the Ewaso Nyiro River and the Habaswein-Uthole Road, approximately four kilometres from Habaswein Town, which they contend constitutes unalienated community land. 8. The 2nd Respondent, on the other hand, identifies the property as 'HB Farm', measuring approximately 290 hectares, situated in the same locality, and asserts that it is his privately owned and registered property. 9. Thus, while the parties fundamentally disagree as to the legal status, ownership and extent of the land, neither suggests that the proceedings concern entirely unrelated parcels. It is that substantial factual overlap, rather than any definitive finding by this Court as to the identity or ownership of the land, that is material to the present application. # PART II: PARTIES' RESPECTIVE CASES ## The Applicant's Case 10. The Applicant's case, as set out in the Notice of Motion, is that the present Petition and **Garissa ELC Case No. E009 of 2025** arise from the same dispute over the same land, involve substantially the same parties, and raise common questions of law and fact. They therefore urge the Court to exercise its discretion in favor of consolidation to facilitate the comprehensive and expeditious determination of the dispute. 11. The Applicant submits that proceeding with the two matters independently would expose the parties to unnecessary expense, occasion duplication of judicial effort and create a real possibility of inconsistent findings. They maintain that consolidation will enable the Court to determine the issues comprehensively upon a common evidentiary record. 12. In support of the application, the Applicant relies principally upon **Law Society of Kenya v Center for Human Rights & Democracy & 12 Others [2014] KESC 29 (KLR)** and **Stumberg & Another v Potgieter [1970] EA 323**. They also invoke Order 1 rule 10 of the Civil Procedure Rules as one of the legal foundations for the application. 13. In the alternative, the Applicant prays that, should the Court decline consolidation, **Garissa ELC Case No. E009 of 2025** be stayed pending the hearing and determination of the present Petition. They argue that such an order would avert conflicting determinations in view of the substantial overlap between the proceedings. ## The 2nd Respondent's Case 14. The application is opposed by the 2nd Respondent through a replying affidavit sworn on 21st April 2026 and written submissions of the same date. While acknowledging that the present Petition bears considerable similarity to the withdrawn **ELC Constitutional Petition No. E002 of 2025**, the 2nd Respondent contends that the present Petition and **Garissa ELC Case No. E009 of 2025** are fundamentally different in nature, character and procedure. 15. The 2nd Respondent does not seriously dispute that there is a substantial degree of similarity between the present Petition and the withdrawn Petition, or that the present Petition and **Garissa** **ELC Case No. E009 of 2025** concern substantially the same dispute over land claimed by the respective parties. Indeed, in his written submissions he acknowledges that the withdrawn Petition involved substantially similar parties, subject matter and reliefs. 16. It is the 2nd Respondent's position that constitutional petitions and ordinary civil suits serve distinct juridical purposes and are governed by separate procedural regimes, rendering the two proceedings unsuitable for consolidation. He further submits that consolidation would prejudice the expeditious disposal of the present Petition, unnecessarily delay the hearing of **Garissa ELC Case No. E009 of 2025** and occasion procedural confusion. He consequently urges the Court to dismiss the application with costs. 17. The remaining Respondents neither filed replying affidavits nor written submissions in opposition to the application. # PART III: ISSUE FOR DETERMINATION 18. Having considered the Motion, the affidavits filed by the parties and their respective submissions, I am of the considered view that the application raises one determinative issue: 1. **Whether ELC Constitutional Petition No. E008 of 2025 and Garissa ELC Case No. E009 of 2025 satisfy the legal principles governing consolidation.** 19. The Applicant's alternative prayer seeking a stay of **Garissa ELC Case No. E009 of 2025** does not constitute an independent issue for determination. Its fate depends upon the determination of the principal prayer. Should consolidation be ordered, the alternative prayer falls away. Should consolidation be declined, the Court would then consider whether the circumstances justify a stay. # PART IV: APPLICABLE LEGAL PRINCIPLES 20. Consolidation is a case-management process by which two or more pending proceedings are combined and thereafter dealt with together. Its object is not merely administrative convenience. It is intended to facilitate the just, expeditious, proportionate and affordable resolution of disputes, while avoiding unnecessary duplication and the possibility of inconsistent judicial determinations. 21. In **Law Society of Kenya v Centre for Human Rights and Democracy & 12 Others [2014] KESC 29 (KLR)**, the Supreme Court stated that the essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for the fair and impartial administration of justice. The Court cautioned that consolidation should neither confer an undue advantage upon the party seeking it nor occasion a disadvantage to the party opposing it. 22. The foundational test remains that stated in **Stumberg & Another v Potgieter [1970] EA 323**: where common questions of law or fact arise in the proceedings and those common questions are sufficiently important, in proportion to the remainder of each action, to make it desirable that the matters be disposed of at the same time, consolidation may properly be ordered. 23. That test was affirmed by the Court of Appeal in **Joseph Mzungu Nyoka v Vros Produce Limited & 525 Others [2015] KECA 902 (KLR)**. The Court recognized that consolidation is appropriate where common questions of law or fact cut across the proceedings and are of sufficient importance to justify their disposal at the same time. It also recognized consolidation as consistent with the overriding objective under section 1A of the Civil Procedure Act. 24. The Court of Appeal further observed in **Joseph Mzungu Nyoka** that consolidation ordinarily presupposes that the proceedings remain pending and that common questions or issues are yet to be determined. Although consolidation should desirably be considered at the earliest opportunity, the Court retains inherent power to make appropriate case-management orders where necessary to achieve the overriding objective. 25. Of particular relevance is **Chimweli Jangaa Mangale & 3 Others v Hamisi Mohamed Mwawasaa & 10 Others [2016] KECA 413 (KLR)**, where the Court of Appeal considered an appeal arising from an order consolidating a constitutional petition with an ordinary Environment and Land Court suit concerning the same property. The Court upheld the order of consolidation. 26. In doing so, the Court of Appeal rejected the proposition that the constitutional character of one proceeding, as opposed to the ordinary civil character of the other, necessarily rendered them incapable of consolidation. The material considerations were that the same property was in dispute, some of the parties were common, the ELC had jurisdiction to determine both the constitutional and ordinary land claims, and no apparent prejudice had been demonstrated. 27. The Court of Appeal in **Chimweli Jangaa Mangale** also adopted the principles stated in **Nyati Security Guards & services Ltd v. Municipal Council of Mombasa, HCCC No. 992 of 1994 (Mombasa),** that consolidation may be ordered where a common question of law or fact arises in the proceedings; where the rights or reliefs claimed arise from the same transaction or series of transactions; or where, for some other reason, it is desirable that the proceedings be consolidated. 28. There is also an express case-management basis for consolidation. Order 11 rule 3(1)(h) of the Civil Procedure Rules empowers the Court, at a case-management conference, to consider consolidation of suits with a view to facilitating their expeditious disposal. The power is supplemented by sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(b) of the Constitution. 29. The applicant must nevertheless place sufficient material before the Court to identify the common questions of law or fact. Consolidation should not be ordered merely because proceedings appear generally related. The Court must be able to discern a real and material overlap from the pleadings and evidence placed before it. 30. The applicable inquiry is therefore whether the proceedings are pending before a court competent to determine them; whether they disclose common questions of law or fact of sufficient importance; whether the rights or reliefs claimed arise from the same transaction, occurrence or factual matrix; whether a joint hearing will promote efficient and consistent determination; whether consolidation will occasion procedural unfairness or other identifiable prejudice; and whether any such prejudice can be addressed through appropriate case-management directions. 31. The proceedings need not have identical parties, identical causes of action or identical reliefs. Nor must every issue arising in one suit arise in the other. The common questions must, however, be sufficiently substantial that their joint determination is more convenient and just than separate hearings. 32. It follows that the Court's task is not limited to comparing the labels assigned to the proceedings. It must examine the substance of the pleadings, the factual foundation of the claims, the questions that will require determination, and the practical consequences of hearing the proceedings separately or together. # PART V: ANALYSIS AND DETERMINATION 33. The Applicant contends that the present Petition and **Garissa ELC Case No. E009 of 2025** concern the same physical area of land, involve substantially overlapping parties and present competing claims relating to its status, ownership and occupation. The 2nd Respondent opposes consolidation principally because one proceeding is a constitutional petition while the other is an ordinary civil suit. 34. I have examined the pleadings in both proceedings. The Petitioners describe the disputed property as an unsurveyed parcel measuring approximately 200 acres situated along the Ewaso Nyiro River and the Habaswein-Uthole Road, approximately four kilometres from Habaswein Town. They contend that it is unalienated community land which was unlawfully appropriated, registered or occupied. 35. The 2nd Respondent identifies the property as HB Farm, measuring approximately 290 hectares, situated in the same locality, and claims that it is his privately owned and registered property. The disparity in the parties' descriptions, particularly as regards acreage, ownership and legal character, is evident. 36. At this stage, the Court is not required to determine whether the descriptions refer to precisely the same surveyed parcel, nor whether either party's characterization is correct. Those are matters for determination after evidence has been received. What is material for present purposes is that neither side presents the proceedings as concerning wholly unrelated parcels. Both proceedings arise from competing assertions over land in the same physical locality, which each side claims as the foundation of its rights. 37. The Petitioners' case is that the land is community land and that the process by which private rights were allegedly created over it was unlawful and unconstitutional. The 2nd Respondent, who is the plaintiff in **Garissa ELC Case No. E009 of 2025**, asserts private proprietary rights and seeks reliefs founded upon his title and occupation. 38. The validity and enforceability of the 2nd Respondent's asserted proprietary interest will therefore arise, directly or indirectly, in both proceedings. Equally, the Petitioners' assertion that the land is community land and was unlawfully alienated bears directly upon the proprietary foundation of the civil suit. 39. It is accordingly apparent that the Court will be required in both matters to consider substantially overlapping evidence concerning the physical location and extent of the disputed land; its historical occupation and use; whether it was community land or land lawfully available for private allocation; the process through which the 2nd Respondent's claimed interest arose; the validity of the documents relied upon to establish ownership; and the parties' respective rights of possession, occupation and use. 40. The common questions are not peripheral or incidental. They lie at the heart of both proceedings. Their determination is likely substantially to resolve, or at the very least materially narrow, the remaining questions in each matter. The proceedings therefore satisfy the test in **Stumberg**, as affirmed by the Court of Appeal in **Joseph Mzungu Nyoka**; the common questions are of sufficient importance, in proportion to the rest of each case, to make their simultaneous disposal desirable. 41. The 2nd Respondent's principal objection is that the proceedings are fundamentally different in nature, character and procedure. That observation is correct to a limited extent. A constitutional petition is governed principally by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, while an ordinary civil suit is governed by the Civil Procedure Act and the Civil Procedure Rules. The reliefs ordinarily associated with the two procedures may also differ. 42. Procedural difference, however, is not synonymous with procedural incompatibility. The question is whether those differences make a fair and orderly joint hearing impracticable or expose a party to identifiable prejudice. 43. In **Chimweli Jangaa Mangale**, the Court of Appeal upheld the consolidation of a constitutional petition with an ordinary ELC suit concerning the same property. The Court reasoned that the ELC was competent to determine both the constitutional and civil dimensions of the land dispute, that some of the parties were common and that no apparent prejudice had been demonstrated. That decision directly answers the contention that a constitutional petition and an ordinary civil land suit are, merely by reason of their different procedural forms, unsuitable for consolidation. 44. The present case is materially comparable. Both matters are already before the Environment and Land Court. The Court possesses jurisdiction to determine disputes relating to community land, private land, title, occupation and land administration and to grant appropriate constitutional relief where the alleged rights violations arise from matters within its constitutional and statutory remit. 45. The different procedural origins of the proceedings can be managed through directions concerning the order in which evidence will be received, the identification of the parties who bear the burden of proof on particular issues, the formulation of common and distinct issues, and the manner in which any petition-specific questions will be addressed. Consolidation does not obliterate the parties' respective pleadings, causes of action or burdens of proof. It merely enables the related proceedings to be heard together upon an organized evidentiary and procedural framework. 46. The 2nd Respondent further contends that consolidation will cause procedural confusion, delay the Petition and prejudice the expeditious disposal of **Garissa ELC Case No. E009 of 2025**. The Supreme Court's caution in Law Society of Kenya requires the Court to ensure that consolidation neither confers an undue advantage nor occasions an unfair disadvantage. 47. However, the 2nd Respondent has not identified any particular evidence that he would be prevented from adducing, any defense that he would lose, any burden of proof that would improperly shift, or any relief that the Court would become incapable of granting if consolidation were ordered. Neither has he demonstrated that the procedural differences cannot be managed through pre-trial directions. 48. The Court must distinguish actual prejudice from the ordinary inconvenience that may accompany case-management orders. The prospect that a party will participate in a joint hearing or respond to constitutional as well as ordinary civil claims does not, without more, constitute prejudice. What must be shown is a real risk of procedural unfairness or impairment of a substantive right. 49. On the other hand, separate hearings would require the Court to examine substantially the same history of the land, consider overlapping documentary evidence and potentially hear the same or related witnesses on different occasions. They would also create a real possibility that separate proceedings might yield incompatible factual findings on the status, ownership or occupation of the land. 50. As the Court of Appeal observed in **Chimweli Jangaa Mangale**, the constitutional command that justice should not be delayed is not advanced by hearing largely the same land dispute between substantially overlapping parties on separate occasions, thereby tying down judicial resources and requiring common evidence to be presented more than once. 51. I am therefore satisfied that the efficiency and consistency to be achieved through consolidation outweigh the generalized procedural concerns advanced by the 2nd Respondent. Any legitimate procedural differences can be addressed through carefully framed case-management directions. 52. I have also considered the parties' references to the withdrawn ELC Constitutional Petition No. E002 of 2025. The Applicant relies upon the stay earlier granted in that matter, while the 2nd Respondent refers to the earlier petition principally to demonstrate similarity of parties, subject matter and reliefs. 53. Upon withdrawal, that petition ceased to exist as a pending proceeding. Its interlocutory orders cannot, without more, determine the present application. Nor does the earlier stay automatically entitle the Applicant to a similar order in these proceedings. The present Motion must be decided independently on the pleadings, affidavits and submissions now before the Court. 54. The withdrawn petition may provide historical context and may explain why the present application was framed as it was, but no substantive entitlement to consolidation or stay flows from it. The application succeeds or fails upon whether the two live proceedings satisfy the governing principles. 55. Having independently considered the pleadings in the present Petition and **Garissa ELC Case No. E009 of 2025**, I find that both proceedings are pending before the Environment and Land Court; they concern competing claims over land situated within the same physical locality; some of the principal parties are common to both proceedings; the validity of the 2nd Respondent's asserted proprietary rights is material to both matters; the proceedings raise substantial common questions of fact and law; those common questions are sufficiently important to justify their disposal at the same time; and no actual prejudice incapable of being cured through case-management directions has been demonstrated. 56. The present Petition and Garissa **ELC Case No. E009 of 2025** therefore satisfy the legal principles governing consolidation. 57. Having reached that conclusion, the Applicant's alternative prayer seeking a stay of **Garissa ELC Case No. E009 of 2025** pending determination of the Petition does not fall for consideration. It was expressly sought in the alternative and has been rendered moot by the order for consolidation. 58. I therefore find that the Notice of Motion dated 9th February 2026 is meritorious and ought to be allowed. # PART VI: DISPOSITION 59. In the result, and for the reasons set out above, I am satisfied that **ELC Constitutional Petition No. E008 of 2025** and **Garissa ELC Case No. E009 of 2025, Hassan Bashir v Shukri Maalim Elmi & Mohamed Osman Kulac**, satisfy the legal principles governing consolidation. The pleadings disclose substantial commonality in the issues, parties and factual matrix, such that their separate determination would not serve the interests of justice or the overriding objective of the Court. 60. Consequently, the Notice of Motion dated 9th February 2026 succeeds, and I make the following orders: i) ELC Constitutional Petition No. E008 of 2025 is hereby consolidated with Garissa ELC Case No. E009 of 2025, Hassan Bashir v Shukri Maalim Elmi & Mohamed Osman Kulac. ii) ELC Constitutional Petition No. E008 of 2025 shall be the lead file, and all subsequent pleadings, applications and directions relating to the consolidated proceedings shall be taken in that file unless the Court directs otherwise. iii) The Deputy Registrar shall place the consolidated file before this Court on a date to be fixed at the Registry for case-management directions, including directions on the filing of any further pleadings, the harmonization of the issues for determination, the mode of hearing and such other directions as may be necessary to facilitate the just, expeditious and proportionate determination of the consolidated proceedings. iv) In view of the order for consolidation, the Applicant's alternative prayer seeking a stay of **Garissa ELC Case No. E009 of 2025** pending the hearing and determination of this Petition is declined as having been overtaken by events. v) The costs of the Notice of Motion dated 9th February 2026 shall abide the outcome of the consolidated proceedings. **Orders accordingly.** **DATED, SIGNED AND DELIVERED AT GARISSA THIS 23RD DAY OF JULY 2026.** **DR. OMONDI R. OWINO, FCIArb** **JUDGE** **ENVIRONMENT AND LAND COURT** **DELIVERED VIRTUALLY ON THE TEAMS PLATFORM** **IN THE PRESENCE OF:** Mr. Okoth and Mr. Mutembei for the Petitioner/Applicant Mr Bashir for the 2nd Respondent Ms Beatrice Mathenge for the 5th, 7th and 8th Respondents as well as the 2nd Interested Party. Mr Dabar Mohamed (Court Assistant)