[2017] KEELC 3619 (KLR)
The court found that although both suits were commenced by the same plaintiff and involved overlapping parties, the 2004 suit was already partly heard while the current suit had not commenced. Consolidating the suits would require both to be heard afresh, thereby delaying the determination of the 2004 suit and...
Source-derived case information.
- Citation
- [2017] KEELC 3619 (KLR)
- Parties
- Plaintiff: Peter Okoth Omeno; Defendant: Ambrose Ochido Andajo; Defendant: Benedict Odhiambo Oketch; Defendant: Bondo Town Council
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 557 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Application for Consolidation of Suits
- Outcome
- application dismissed with costs
- Legal Topics
- Consolidation of Suits, Joinder of Parties, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Okoth Omeno
Plaintiff
Ambrose Ochido Andajo
Defendant
Benedict Odhiambo Oketch
Defendant
Bondo Town Council
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Consolidation of Suits
Legal Issues
- 1 Whether the two suits sought to be consolidated are between the same parties and same subject matter.
- 2 Whether consolidating the two suits will hasten the determination of the issues herein.
- 3 What orders to make.
Ratio Decidendi
The court found that although both suits were commenced by the same plaintiff and involved overlapping parties, the 2004 suit was already partly heard while the current suit had not commenced. Consolidating the suits would require both to be heard afresh, thereby delaying the determination of the 2004 suit and prejudicing the parties. The court exercised its discretion to refuse consolidation, holding that it would not serve the interests of justice or judicial efficiency in this context. The application for consolidation was therefore dismissed with costs to the defendants.
Court Disposition
application dismissed with costs
Orders
- The notice of motion dated 24th January 2012 is dismissed with costs.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC CASE NO.557 OF 2015
{Formerly Civil Suit No.223 of 2011}
PETER OKOTH OMENO..........................................................PLAINTIFF
VERSUS
AMBROSE OCHIDO ANDAJO.....................................1STDEFENDANT
BENEDICT ODHIAMBO OKETCH................................2ND DEFENDANT
BONDO TOWN COUNCIL............................................3RD DEFENDANT
RULING
1. Through notice of motion dated 24th January 2012, Peter Okoth Omeno, the plaintiff sought to have this suit consolidated with Kisumu H.C.C. No.104 of 2004 (O.S) for hearing and determination. The application is based on the four grounds on its face and supported by the affidavit sworn by the plaintiff on 25th January 2012.
2. The application is opposed by the 2nd Defendant, Benedict Odhiambo Oketch, through the grounds of opposition dated 29th January 2012. It is also opposed by the 1st Defendant, Ambrose Ochido Andajo, through the replying affidavit he swore on 30th January 2012.
3. The counsel for the Plaintiff filed written submissions dated 25th January 2013 while counsel for the 1st Defendant filed theirs dated 6th February 2012. Another set of submissions for all Defendants dated 4th February 2013 was also filed.
4. The following are the issues for determination;
a. Whether the two suits sort to be consolidated are between the same parties and same subject matter.
b. Whether consolidating the two suits will hasten the determination of the issues herein.
c. What orders to make.
d. Who pays the costs.
5. The court has considered the grounds on the notice of motion, affidavit evidence, grounds of opposition, written submissions and come to the following determinations;
a. That this suit and Kisumu H.C.C.C. No.104 of 2004 (O.S.) were both commenced by the same person who is the plaintiff in the two suits.
b. That the 2004 suit has two defendants/Respondents namely Ambrose Ochido Adanjo and Benedict Odhiambo Okech, while the current suit has the two as 1st and 2nd Defendants and Bondo Town Council as the 3rd Defendant.
c. That the 2004 suit is partly heard while the hearing in the current suit has not commenced.
d. That the current suit was filed in 2011 which is about seven years after filing of the 2004 suit and it is only fair that the two suits be heard and determined separately to avoid the 2004 suit, that is already partly heard, being pulled back by this suit as an order of consolidation would require the suits to be heard de novo.
6. That for reasons set out above, the notice of motion dated 24th January 2012 has no merit and is dismissed with costs.
It is so ordered.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 8TH DAY OF FEBRUARY 2017
In presence of;
Plaintiff Absent
Defendants absent
Counsel Mr. Mwamu for Plaintiff Mr. Manwari for Odongo for 1st Defendant Mr Nyasnga for Ojuro for 2nd Defendant.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
8/2/2017
8/2/2017
S.M. Kibunja Judge
Oyugi court assistant
Mr. Manwari for Odongo for 1st Defendant
Mr. Rodi for Mwamu for Plaintiff
Mr. Mwamum has walked
Mr. Nyasnga for Ojuro for 2nd Defendant
Court: Ruling dated and delivered in open court in presence of Mwamu for the Plaintiff, Mr. Manwari for Odongo for 1st Defendant and Mr. Nyanga for Ojuro for the 2nd Defendant.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
8/2/2017