https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3908

Madarah (Suing as Administrator of the Estate of Stephen Bukachi Kukuya) v Okuyumba (Enviromental and Land Originating Summons E046 of 2025) [2026] KEELC 3908 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3908 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Enviromental and Land Originating Summons E046 of 2025 A Nyukuri, J June 17, 2026 Between Polycard Juma Stephen Madarah (Suing as Administrator of the Estate of Stephen Bukachi Kukuya) Applicant and Ibrahim Were Okuyumba Respondent Ruling Introduction 1.Before court is a Notice of Motion dated 4th August 2025 filed by the applicant seeking the following orders;a.Spentb.That the court be pleased to issue an order transferring Kakamega MCL &E Case No. E085 OF 2023 to this Honurable court for determination.c.That upon transfer, the said Kakamega MCL &E Case No. E085 OF 2023 be consolidated with this matter to be heard and determined simultaneously.d.That the costs of this application be provided for. 2.The application is premised on the grounds on its face and the supporting affidavit sworn by the applicant. The applicant’s case is that the respondent herein filed Kakamega MCL &E Case No. E085 OF 2023 against the applicant herein seeking eviction orders. That the applicant sought to raise the claim of adverse possession as his defence and counterclaim. That to avoid multiplicity of suits and a likelihood of contradictory orders in two different courts, orders sought should be granted. 3.The application was opposed. The respondent filed replying affidavit dated 29th September 2025. He stated that the suit property does not belong to the applicant’s father. That the applicant is forum shopping as he has not withdrawn his suit from the lower court. 4.Further that this court has no jurisdiction to transfer the case from the lower court to this court and to consolidate this matter with the matter in the lower court as the court will be transferring a nullity. 5.The court directed parties to file written submissions in support of their respective positions. On record are submissions filed by the applicant dated 15th October 2025 and the respondent’s submissions dated 29th September 2025; both of which the court has duly considered. Analysis and determination. 6.The court has carefully considered the application, the response thereto and submissions. The issue that arises for the court’s determination is whether the applicant deserves the orders sought. 7.This suit was filed by the applicant against the respondent claiming parcel No. KISA/Shibinga/272 by way of adverse possession. Before the filing of the instant suit, the respondent herein had filed Kakamega MCL &E Case No. E085 OF 2023 against the applicant herein seeking eviction orders. Therefore, in the instant application, the applicant seeks the transfer of Kakamega MCL &E Case No. E085 OF 2023 from the lower court to this court and also an order consolidating Kakamega MCL &E Case No. E085 OF with the suit herein. 8.Upon application by parties or on its own motion, this court has jurisdiction to transfer a suit from the Magistrates court to this court for hearing and determination, as provided for in section 18 (1) (b) ( i ) of the Civil Procedure Act. Regarding the respondent’s submissions that Kakamega MCL &E Case No. E085 OF 2023 is a matter before a court without jurisdiction, I note that the suit filed by the applicant in the lower court seeks eviction. The respondent herein has not demonstrated that the lower court has no jurisdiction do determine a claim of eviction. 9.Since the suit now before me seeks adverse possession which is basically the defence to the claim for eviction in Kakamega MCL &E Case No. E085 OF 2023, it is only fair and just that Kakamega MCL &E Case No. E085 OF 2023 is transferred to this court for hearing and determination. This will be in the interest of justice and so as to uphold the overriding objective of the Civil Procedure Act and section 3 of the Environment and Land Court Act that requires the court to resolve disputes efficiently, justly and at a cost that is affordable to the parties. Therefore, the prayer for transfer of the suit from the lower court to this court is allowed. 10.Regarding consolidation, it is trite that consolidation is a tool for case management to achieve the overriding objective of facilitating just, expeditious and efficient resolution of disputes at an affordable cost to the parties. Consolidation may be ordered where two or more matters pending in the same court raise the same questions of law or fact and where the reliefs sought in those cases arise out of the same transaction or series of transactions, as long as such consolidation will not confer undue advantage to one party, but will facilitate efficient and expeditious disposal of the dispute at an affordable cost to the parties. 11.In the case of Law Society of Kenya v The Centre for Human Rights and Democracy, Supreme Court of Kenya, Petition No. 14 of 2013, the Supreme Court held as follows;“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 intended to occasion any disadvantage towards the party that opposes it.” 12.In the instant matter it is not disputed that this suit is for all practical purposes a defence in respect of the claim in Kakamega MCL &E Case No. E085 OF 2023. It will not be a proper use of precious judicial time for one court to hear the main claim and another court to hear and determine the defence and counterclaim, as this creates the danger of two conflicting decisions. 13.However, consolidation is done in regard to two matters pending before the same court. The lower court file is yet to be brought to this court, and admitted as a pending matter before this court. For the sake of orderliness of proceedings and clarity which are critical elements in the administration of justice, it is proper that the lower court file is first transferred to this court, registered as a new case before this court, before it is consolidated with this matter. In the premises therefore, the prayer for consolidation at this stage is premature. 14.In the premises, I find and hold that the application dated 4th August 2025 is merited and the same is hereby partially allowed. Consequently, Kakamega MCL &E Case No. E085 OF 2023 is hereby transferred from Kakamega Chief Magistrates Court to this court for hearing and determination. I make no order as to costs. 15.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026A. NYUKURIJUDGEIn the presence ofMs Luvayi for the applicantMs Ouma holding brief for the respondentCourt Assistant: Delphine