[2021] KESC 27 (KLR)

Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) (Civ) (9 November 2021) (Ruling)

Neutral citation: [2021] KESC 27 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Petition 11 (E015) of 2021

PM Mwilu, DCJ & V-P, MK Ibrahim, NS Ndungu, I Lenaola & W Ouko, SCJJ

November 9, 2021

Between

Morara Omoke

Appellant

and

Uhuru Muigai Kenyatta

1st Respondent

Raila Amolo Odinga

2nd Respondent

Steering Committee on The Implementation of The Building Bridges to A United Kenya Task Force Report (BBI Steering Committee)

3rd Respondent

Building Bridges to A United Kenya, National Secretariat (BBI Secretariat)

4th Respondent

Attorney General

5th Respondent

David Ndii

6th Respondent

Jerotich Seii

7th Respondent

James Gondi

8th Respondent

Wanjiru Gikonyo

9th Respondent

Ikal Angelei

10th Respondent

Thirdway Alliance Kenya

11th Respondent

Miruru Waweru

12th Respondent

Angela Mwikali

13th Respondent

Public Service Commission

14th Respondent

Auditor General

15th Respondent

National Executive

16th Respondent

Speaker of The Senate

17th Respondent

Senate

18th Respondent

Speaker of The National Assembly

19th Respondent

National Assembly

20th Respondent

County Assembly of Mombasa

21st Respondent

County Assembly of Kwale

22nd Respondent

County Assembly of Kilifi

23rd Respondent

County Assembly of Tana River 24th

24th Respondent

County Assembly of Lamu

25th Respondent

County Assembly of Taita-Taveta

26th Respondent

County Assembly of Garisa

27th Respondent

County Assembly of Wajir

28th Respondent

County Assembly of Mandera

29th Respondent

County Assembly of Marsabit

30th Respondent

County Assembly of Isiolo

31st Respondent

County Assembly of Meru

32nd Respondent

County Assembly of Tharaka-Nithi

33rd Respondent

County Assembly of Embu

34th Respondent

County Assembly of Kitui

35th Respondent

County Assembly of Machakos

36th Respondent

County Assembly of Makueni

37th Respondent

County Assembly of Nyandarua

38th Respondent

County Assembly of Nyeri

39th Respondent

County Assembly of Kirinyaga

40th Respondent

County Assembly of Murang’a

41st Respondent

County Assembly of Kiambu

42nd Respondent

County Assembly of Turkana

43rd Respondent

County Assembly of West Pokot

44th Respondent

County Assembly of Samburu

45th Respondent

County Assembly of Trans Nzoia

46th Respondent

County Assembly of Uasin Gishu

47th Respondent

County Assembly of Elgeyo/Marakwet

48th Respondent

County Assembly of Nandi

49th Respondent

County Assembly of Baringo

50th Respondent

County Assembly of Laikipia

51st Respondent

County Assembly of Nakuru

52nd Respondent

County Assembly of Narok

53rd Respondent

County Assembly of Kajiado

54th Respondent

County Assembly of Kericho

55th Respondent

County Assembly of Bomet

56th Respondent

County Assembly of Kakamega

57th Respondent

County Assembly of Vihiga

58th Respondent

County Assembly of Bungoma

59th Respondent

County Assembly of Busia

60th Respondent

County Assembly of Siaya

61st Respondent

County Assembly of Kisumu

62nd Respondent

County Assembly of Homa Bay

63rd Respondent

County Assembly of Migori

64th Respondent

County Assembly of Kisii

65th Respondent

County Assembly of Nyamira

66th Respondent

County Assembly of Nairobi

67th Respondent

Justus Juma

68th Respondent

Isaac Ogola

69th Respondent

Isaac Aluochier

70th Respondent

Duncan Ojwang’

71st Respondent

John Osogo Ambani

72nd Respondent

Linda Musumba

73rd Respondent

Jack Mwimali

74th Respondent

Kenya Human Rights Commission

75th Respondent

Migai Akech

76th Respondent

Charles Manga Fombad

77th Respondent

Muslims for Human Rights (Muhuri)

78th Respondent

Kituo cha Sheria

79th Respondent

Kenya National Union of Nurses

80th Respondent

Independent Electoral and Boundaries Commission

81st Respondent

Building Bridges to A United Kenya Task Force (BBI Taskforce)

82nd Respondent

Phylister Wakesho

83rd Respondent

254 Hope

84th Respondent

(An application seeking the consolidation of Petition No 11(E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No.13 (E018) of 2021)

Factors considered by the Supreme Court in determining whether to consolidate matters.

The application sought court orders for the consolidation of Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021 and for the filing of responses to the consolidated petition. The grounds for the orders sought were that the three petitions had the same subject matter, raised similar issues of law and arose from the same set of facts. The court cited rule 21 of the Supreme Court Rules 2020 and held that consolidation of suits or appeals would be ordered where there were common issues of law or fact in the suits or appeals or where it was desirable for related matters to be disposed of at the same time. In allowing the application the court made the determination that the application met the threshold for consolidation of suits.

Reported by Ribia John

Civil Practice and Procedure– suits - consolidation of suits – factors to consider when consolidating suits – purpose of consolidation of suits - factors considered by the Supreme Court when determining whether to consolidate matters – Supreme Court Rules, 2021, rule 21.

Brief facts The 71st, 72nd and 73rd respondents (the applicants) sought for leave to consolidate Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021, and for an order directing parties in the three petitions to file responses to the consolidated Petition as opposed to responding to each of the individual petitions. They contended that all three petitions involved the same subject matter, raised similar issues of law, and arose from the same set of facts, and considering the number of parties involved, there was likelihood of duplication and disharmony in the submissions if leave for consolidation was not granted.

Issues What factors did the Supreme Court consider when determining whether to consolidate matters?

Held

The jurisdiction to consolidate appeals in the Supreme Court was conferred by rule 21 of the Supreme Court Rules, 2020, which stipulated that the court could, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings were similar, order that the proceedings be consolidated, on such terms as the court could determine. Consolidation of suits or appeals would be ordered where there were common questions of either law or fact in two or more suits or appeals and where it was desirable that all the related matters be disposed of at the same time.

The essence of consolidation was 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 sought it, nor was it intended to occasion any disadvantage towards the party that opposed it.

Through consolidation, costs, time and other resources were saved and multiplicity of proceedings avoided. All the three petitions before the court arose from the same set of facts; the same subject matter; they raised similar issues of law; involved the same parties who were before the two Superior Courts below and ensued from the same judgment.

The instant application had met the threshold for consolidation and Petition No. 12 of 2021 (E016) of 2021, Attorney General vs David Ndii & 73 Others, and encapsulated most of the key grounds common to the rest of the other petitions, in contrast with the appellant’s Petitions No. 11 (E015) of 2021, which raised only one question.

The order of precedence, proceedings and presentation of arguments in the petitions would be determined on November 9, 2021 during the mention for directions by the Supreme Court.

Application allowed.

Orders

Notice of Motion dated October 7, 2021 allowed.

Petition No. 11 (E015) of 2021 - Morara Omoke vs H.E. Uhuru Muigai Kenyatta & 83 Others; Petition No. 12 (E016) of 2021 - The Attorney General vs David Ndii & 73 Others; and Petition No. 13 (E18) of 2021 - Independent Electoral and Boundaries Commission vs David Ndii & 81 Others, are hereby consolidated.

Petition No 12 (E016) of 2021, The Attorney General vs. David Ndii & 73 Others would serve as the lead file in the proceedings and parties who had been omitted in it, for example, 74th respondent, Dr. Jack Mwimali and 78th respondent, Muslims for Human Rights (MUHURI) were to be included.

No orders as to costs.

Citations Cases David Ojwang’ Okebe v South Nyanza Sugar Company Limited (Civil Appeal (Application) 139 of 2008, [2009] eKLR) — Mentioned

Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others (SC Petition No. 14 of 2013, [2014] eKLR) — Mentioned

Atlantic States Legal Foundation Inc v Koch Refining Co (681 F. Supp 609, 615 (D. Minn. 1988)) — Mentioned

Statutes Supreme Court Rules (2020) — Rule 21 — Interpreted

AdvocatesNone mentioned

Ruling

[1]Before us is a notice of motion dated October 7, 2021, filed on even date by Dr Duncan Oburu Ojwang, Dr John Osogo Ambani and Dr Linda Musumba, the 71st, 72nd and 73rd respondents, respectively (the applicants), for leave to consolidate Petition No 11 (E015) of 2021, Petition No 12 (E016) of 2021 and Petition No 13 (E18) of 2021, and for an order directing parties in the three petitions to file responses to the consolidated Petition as opposed to responding to each of the individual petitions; and

[2]Upon perusing the affidavit of Dr Duncan Oburu Ojwang sworn on behalf of the applicants in support of the motion on the October 7, 2021 to the effect that all the three Petitions before us involve the same subject matter, raise similar issues of law, and arise from the same set of facts, and considering the number of parties involved, there is likelihood of duplication and disharmony in the submissions if leave for consolidation is not granted; and

[3]Further, noting that in an affidavit dated October 14, 2021, Mr Morara Omoke (the appellant) essentially supports the application but urges the court to consider his appeal, Petition No 11(E15) of 2021, Morara Omoke versus HE Uhuru Muigai Kenyatta and 83 others as the lead file for reasons that; it was filed first, has, unlike the other two petitions, named all parties who were before the Court of Appeal, and as a result would be easier for all parties to electronically and physically file their pleadings in one file; and

[4]Noting that the Independent Electoral and Boundaries Commission, the 81st respondent is similarly not opposed to the application but only prefers that its Appeal, Petition No 13 (E18) of 2021 be consolidated with that of the Attorney General, Petition No 12 (E016) of 2021, while the appellant’s Petition No 11 (E015) of 2021 be treated as a cross-appeal; and

[5]Further, noting that the appellant in a supplementary affidavit, dated October 20, 2021, opposes this suggestion on the grounds that; such a request was not prayed for in the instant application, is unfounded, and insists that if any appeal is to be converted to a cross-appeal, then the appeals by Independent Electoral and Boundaries Commission and by the Attorney General ought to be consolidated; and

[6]Upon considering the applicant’s written submissions dated October 7, 2021, filed on the same date, citing rule 21 of the Supreme Court Rules 2020, and the court’s decisions in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others, SC Petition No 14 of 2013, [2014] eKLR and David Ojwang’ Okebe v South Nyanza Sugar Company Limited, Civil Appeal (Application) 139 of 2008, [2009] eKLR as authorities for consolidation of appeals before this court; and considering also a replying affidavit filed on behalf of the Independent Electoral and Boundaries Commission on October 19, 2021; and

[7]Upon further evaluation of those submissions and applying the convenience test enunciated in the case of Atlantic States Legal Foundation Inc v Koch Refining Co 681 F Supp 609, 615 (D Minn 1988 to the effect that in considering whether or not to consolidate cases, it is of paramount importance for the court to weigh the cost, time, effort and judicial resources involved.

[8]We now therefore opine as follows:i.The jurisdiction to consolidate appeals in this court is conferred by rule 21 of the Supreme Court Rules, 2021, which stipulates that;“The court may, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings are similar, order that the proceedings be—a.consolidated, on such terms as the Court may determine…”.ii.Consolidation of suits or appeals will be ordered where there are common questions of either law or fact in two or more suits or appeals and where it is desirable that all the related matters be disposed of at the same time.iii.When considering an application for consolidation, this court will bear in mind the guiding principles it pronounced in the case of the Law Society of Kenya v Centre for Human Rights & Democracy & 12others, SC Petition No 14 of 2013, [2014] eKLR, 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.”iv.Through consolidation, costs, time and other resources are saved and multiplicity of proceedings avoided. All the three petitions before this court arise from the same set of facts; the same subject matter; they raise similar issues of law; involve the same parties who were before the two superior courts below; and ensue from the same judgment.v.We bear in mind that the application is not opposed in substance, save to the extent explained in paragraphs 3, 4 and 5 above.vi.Upon perusal and careful consideration of the three petitions, we entertain no doubt that this application meets the threshold for consolidation; and further, that Petition No 12 of 2021 (E016) of 2021, The Attorney General vs David Ndii & 73 others, encapsulates most of the key grounds common to the rest of the other Petitions, in contrast with the appellant’s Petitions No 11 (E015) of 2021, which raises only one single question.vii.The order of precedence, proceedings and presentation of arguments in the Petitions will be determined on 9th November, 2021 during the mention for directions by the court.

[9]Consequently, we allow the notice of motion dated 7th October, 2021 and make the following orders:i.Petition No 11 (E015) of 2021 - Morara Omoke vs HE Uhuru Muigai Kenyatta & 83 others; Petition No 12 (E016) of 2021 - The Attorney General vs David Ndii & 73 others; and Petition No 13 (E18) of 2021 - Independent Electoral and Boundaries Commission vs David Ndii & 81 Others, are hereby consolidated.ii.Petition No 12 (E016) of 2021, The Attorney General vs David Ndii & 73 others will serve as the lead file in the proceedings and parties who have been omitted in it, for example, 74 th respondent, DrJack Mwimali and 78 threspondent, Muslims for Human Rights (MUHURI) to be included.iii.We make no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 9TH . DAY OF NOVEMBER, 2021. .............................P. M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENTOF THE SUPREME COURT.............................M.K. IBRAHIMJUSTICE OF THE SUPREME COURT.............................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT.............................I. LENAOLAJUSTICE OF THE SUPREME COURT.............................W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is atrue copy of the originalREGISTRARSUPREME COURT OF KENYA