[2017] KEHC 4915 (KLR)
The court found that although the two cases involve the same parties, land parcel, and cause of action, consolidation was not necessary because the present case could stand on its own and the facts relevant to compulsory acquisition were already captured in this file. The court reasoned that for effective case...
Source-derived case information.
- Citation
- [2017] KEHC 4915 (KLR)
- Parties
- Applicant: Salome Kinya Kiogora (Suing as the administrator of the estate of M'Nkirimiti M'Mbwiria); Respondent: Hellen Gacheri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 55 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Application for Consolidation of Suits
- Outcome
- application dismissed with costs to respondent
- Judges
- LN Mbugua
- Legal Topics
- Consolidation of Suits, Case Management, Land Disputes, Fraud in Land Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Kinya Kiogora (Suing as the administrator of the estate of M'Nkirimiti M'Mbwiria)
Applicant
Hellen Gacheri
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Consolidation of Suits
Legal Issues
- 1 Whether the two cases should be consolidated given they involve the same parties, land parcel, and cause of action based on fraud.
- 2 Whether consolidation would serve the interests of justice, save costs, and avoid prejudice to the parties.
- 3 Whether the present case can stand on its own or if amendment of pleadings in the earlier case would be more appropriate.
Ratio Decidendi
The court found that although the two cases involve the same parties, land parcel, and cause of action, consolidation was not necessary because the present case could stand on its own and the facts relevant to compulsory acquisition were already captured in this file. The court reasoned that for effective case management, it is preferable that only one suit proceeds to avoid duplication and unnecessary litigation. The applicant was advised to withdraw one of the suits to streamline the process. The application for consolidation was therefore dismissed, with costs awarded to the respondent.
Court Disposition
application dismissed with costs to respondent
Orders
- The application for consolidation is dismissed.
- Costs of the application awarded to the respondent.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIRONMENT AND LAND CASE NO 55 OF 2016
SALOME KINYA KIOGORA (Suing as the administrator of the estate of
M'NKIRIMITI M'MBWIRIA) DECEASED …...........PLAINTIFF/APPLICANT
VERSUS
HELLEN GACHERI...........................................DEFENDANT/ RESPONDENT
R U L I N G
1. This Notice of Motion dated 21st December, 2016 seeks the following orders;
1. THATthis case be consolidated with MERU E.L.C CASE NO. 210 OF 2013 ,and the two files be handled under this file.
2. THAT the costs of this application be in the cause.
2. The grounds in support of the application are ;
a) THAT the two cases concern the same parties, the same parcel of land and the same cause of action which is based on fraud.
b) THAT the facts on compulsory acquisition of a portion of the suit land are not captured in MERU EL.C CASE NO. 210 OF 2013.
c) THAT there are interim orders of injunction herein.
d) THATconsolidation shall save costs on the part of the parties and time on the part of the Court and the parties as well.
e)THAT neither party shall be prejudiced by the consolidation sought.
f) THAT the application is made in the best interest of justice and has merit.
4. The application is also supported by the Affidavit of the Plaintiff SALOME KINYA KIOGORA ,and she avers that;
1. This case be consolidated with MERU E.L.C CASE NO. 210 OF 2013 and the dispute be determined in this file.
2. The parties, the parcel of land and the cause of action based on fraud, are the same in both cases.
3. The defendant in both cases is a step-daughter of the applicant.
4. Consolidating the two cases shall save costs on the part of both parties as well as time on the part of the Honourable Court and the parties in attending Court.
5. Interim Orders of injunction have been issued herein, and that the facts on compulsory acquisition of a portion of the suit land are not reflected in the other case and that is why applicant prefers this file to proceed.
6. Applicant is aged over 80 years and illiterate and was dupped by some brokers who took her to the advocate who filed MERU E.L.C CASE NO. 210 OF 2013, without disclosing as to what he was doing. She only instructed him in CHUKA C.M.C. SUCC.C NO. 310 OF 2011.
7. The application is made in utmost good faith and if allowed, the defendant/respondent shall not be prejudiced or suffer any miscarriage of justice in any way.
5. This Court has perused the application, the grounds in support and the Supporting Affidavit. The Court has also perused the proceedings in Meru E.L.C NO 210 OF 2013. Though E.L.C no.210/13 is three years old, the case is still at the infancy stage. Nothing much has happened in that case.
6. Under paragraph 5 of her affidavit ,applicant has clearly stated that she desires this case to be the one to proceed as it captures the issue of land acquisition.
7. The question is , what purpose will the consolidation serve if the present case can stand on its own? .Why didn’t the plaintiff proceed by way of amendment of pleadings in case number 210 of 2013?.
8. For proper Court and Case Management it is preferable that one suit should leave the system.
9. In the circumstances,this court declines to allow the consolidation of the two suits. Instead, applicant should move with speed to withdraw one of the suits to avoid the hearing of the Preliminary Objection of 26/08/16 in ELC NO. 55 OF 16.
10. The application is dismissed with costs to Respondent.
DELIVERED IN OPEN COURT AT MERU THIS 23RD DAY OF FEBRUARY, 2017 IN THE PRESENCE OF:-
C:A James /Kananu
Gitonga h/b for CarlPeters Mbaabu
Salome Kinya Kiogora -Plaintiff
L.N. MBUGUA
JUDGE