[2005] KEHC 1510 (KLR)
The court found that the two suits are based on substantially the same facts and involve similar issues and parties. The second suit was filed to address a procedural defect in the first, but the allegations and reliefs sought overlap. Consolidation is justified to avoid duplication and ensure efficient use of...
Source-derived case information.
- Citation
- [2005] KEHC 1510 (KLR)
- Parties
- Plaintiff: Sammy Mwangani, Musyoka Ilima, Nzula Muema, Muli Mwango, Matheka Malei, Maundu Muthoka, Muthusi Muema, Kisilu Munywoki, Jane Muikia, Nzule Musyoka; Defendant: The Commissioner of Lands; Defendant: The Attorney General; Defendant: Thabiti Finance Co. Ltd; Defendant: National Bank of Kenya; Defendant: James Gamau Wainaina; Defendant: Lucy Nyawira; Defendant: Sera Wanjiku; Defendant: Simon Muturi Wanguo; Defendant: Raphael Muigai Mwangi; Defendant: Paul Kahuti Kondiah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 298 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Consolidation of Suits
- Outcome
- Application for consolidation allowed in part; suit against 1st Defendant in HCCC No. 394 of 2004 discontinued; suits consolidated; costs to 1st Defendant in discontinued suit; costs in the cause for consolidated suits.
- Judges
- PJ Ransley
- Legal Topics
- Consolidation of Suits, Counterclaim Procedure, Duplication of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Mwangani, Musyoka Ilima, Nzula Muema, Muli Mwango, Matheka Malei, Maundu Muthoka, Muthusi Muema, Kisilu Munywoki, Jane Muikia, Nzule Musyoka
Plaintiff
The Commissioner of Lands
Defendant
The Attorney General
Defendant
Thabiti Finance Co. Ltd
Defendant
National Bank of Kenya
Defendant
James Gamau Wainaina
Defendant
Lucy Nyawira
Defendant
Sera Wanjiku
Defendant
Simon Muturi Wanguo
Defendant
Raphael Muigai Mwangi
Defendant
Paul Kahuti Kondiah
Defendant
Procedural Posture
Civil Case / Ruling on Application for Consolidation of Suits
Legal Issues
- 1 Whether HCCC No. 298 of 2003 and HCCC No. 394 of 2004 should be consolidated for hearing and determination.
- 2 Whether the suit against the 1st Defendant in HCCC No. 394 of 2004 should be discontinued as a duplication.
- 3 Whether the existence of a counterclaim in the first suit precludes consolidation.
Ratio Decidendi
The court found that the two suits are based on substantially the same facts and involve similar issues and parties. The second suit was filed to address a procedural defect in the first, but the allegations and reliefs sought overlap. Consolidation is justified to avoid duplication and ensure efficient use of judicial resources. However, since the suit against the 1st Defendant in the second suit is a duplication of the matters already raised in the first suit, it should be discontinued. The existence of a counterclaim in the first suit does not preclude consolidation; instead, the counterclaim will be heard together with the consolidated suits. The 1st Defendant is entitled to costs in...
Court Disposition
Application for consolidation allowed in part; suit against 1st Defendant in HCCC No. 394 of 2004 discontinued; suits consolidated; costs to 1st Defendant in discontinued suit; costs in the cause for consolidated suits.
Orders
- The suit against the 1st Defendant in HCCC No. 394 of 2004 is discontinued.
- The two suits, HCCC No. 298 of 2003 and HCCC No. 394 of 2004, are consolidated for hearing and determination.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE 298 OF 2003
SAMMY MWANGANI )
MUSYOKA ILIMA )
NZULA MUEMA )
MULI MWANGO )
MATHEKA MALEI )
MAUNDU MUTHOKA )
MUTHUSI MUEMA )
KISILU MUNYWOKI )
JANE MUIKIA )
NZULE MUSYOKA ………….………...…………………..……..PLAINTIFFS
VERSUS
THE COMMISSIONER OF LANDS…...…………...………1ST DEFENDANT
THE ATTORNEY GENERAL ………....…….……..……… 2ND DEFENDANT
THABITI FINANCE CO. LTD ………....…….……………...3RD DEFENDANT
NATIONAL BANK OF KENYA ……....…………………… 4TH DEFENDANT
JAMES GAMAU WAINAINA ……....……………… ……...5TH DEFENDANT
LUCY NYAWIRA …………………....………..…..………....6TH DEFENDANT
SERA WANJIKU ……………….…………..…….….……...7TH DEFENDANT
SIMON MUTURI WANGUO ………….........………….……8TH DEFENDANT
RAPHAEL MUIGAI MWANGI ……….….........……….….. 9TH DEFENDANT
PAUL KAHUTI KONDIAH ………..…..….....…………... 10TH DEFENDANT
RULING
By their application of the 15. 5.2004 the Applicants seek an order that this suit be consolidated with HCCC No. 394 of 2004.
This suit HCC No. 298 of 2004 was struck out against the 4,8,9 and 10th Defendants. A counterclaim filed by the 8th, 9th and 10th Defendants is still alive.
The suit filed in HCCC No.394 of 2004 has the same Plaintiff but omits the 2nd and 3rd 4th and 6th Defendants who were parties in the earlier suit.
Consolidation is usually ordered where similar issues arise between parties and it is convenient to hear the suits as one.
The reason for the second suit was to put right a procedural defect in the earlier suit which the 8th, 9th and 10th Defendants had raised, namely a breach of provision of Order 1 rule 12.
It alleged fraud against the 2nd, 3rd, 4th and 5th Defendants in the new suit who were previously defendants in the first suit.
The facts on which the two suits are based are substantially the same.
Mr. Messa for the first Defendant in both suits opposed the application on the grounds that the provision of the Government Proceedings Act had not been complied with in the second suit as no Statutory Notice had been given before filing the suit and that if Consolidation takes place they will be deprived of that Defence.
Mr. Maina for the 8th and 9th and 10th Defendant in the first suit and 3rd, 4th and 5th Defendant in the new suit objected that as his clients had a counterclaim it was not correct that there are be two parallel suits.
In both suits the allegations against the 1st Defendant are similar as well as the particulars of fraud.
I therefore discontinue the suit against the 1st Defendant in HCCC No.394 of 2004 as it is a duplication of the matters raised against it in the first suit.
I am of the view however, that the two suits should be heard together as the same issues substantially arise in both.
I therefore order the consolidation of the two suits but having discontinued the suit against the 1st Defendant in the second suit HCCC No.394 of 2004, I give the 1st Defendant its costs against the Plaintiff in that suit up to-day. The counterclaim in the first suit is to be heard at the same time as the hearing of the matters raised in the consolidated suits. Costs will be in the cause.
Dated and delivered at Nairobi this 18th day of July 2005
P.J. RANSLEY
JUDGE