[2008] KEHC 105 (KLR)
The court found that the various suits filed concern the same parcels of land, which have been subjected to two different land registration systems, resulting in overlapping and conflicting titles. The issues and facts in the suits are substantially similar, and consolidation would promote judicial efficiency, avoid...
Source-derived case information.
- Citation
- [2008] KEHC 105 (KLR)
- Parties
- Plaintiff: Sheva Hotels Limited; Defendant: Shaibu Soshi Famau; Defendant: Elga Machotti; Defendant: Glovanni Oss; Defendant: Barbara Biachi; Defendant: Hans-Dietter Kurt Walter Loyall; Defendant: Piere Laporte Ltd; Defendant: Land Registrar Kilifi; Defendant: Commissioner of Lands; Defendant: Hon. Attorney General; Interested Party: J.K. Ritho
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1623 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Consolidation of Suits
- Outcome
- application for consolidation of suits granted
- Legal Topics
- Land Registration Systems, Title Cancellation, Consolidation of Suits, Overlapping Titles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheva Hotels Limited
Plaintiff
Shaibu Soshi Famau
Defendant
Elga Machotti
Defendant
Glovanni Oss
Defendant
Barbara Biachi
Defendant
Hans-Dietter Kurt Walter Loyall
Defendant
Piere Laporte Ltd
Defendant
Land Registrar Kilifi
Defendant
Commissioner of Lands
Defendant
Hon. Attorney General
Defendant
J.K. Ritho
Interested Party
Procedural Posture
Civil Suit / Ruling on Application for Consolidation of Suits
Legal Issues
- 1 Whether the suits concerning the same parcel of land registered under different systems should be consolidated.
- 2 Whether consolidation would serve the interests of justice and judicial economy.
- 3 Whether the existence of overlapping titles under different registration systems affects the rights of the parties.
Ratio Decidendi
The court found that the various suits filed concern the same parcels of land, which have been subjected to two different land registration systems, resulting in overlapping and conflicting titles. The issues and facts in the suits are substantially similar, and consolidation would promote judicial efficiency, avoid conflicting decisions, and serve the interests of justice. The court exercised its discretion to allow consolidation, noting that some parties opposed and others supported the application, but the overriding consideration was the efficient and fair resolution of the disputes. The application for consolidation was therefore granted, with costs in the case.
Court Disposition
application for consolidation of suits granted
Orders
- The application for consolidation of the suits is allowed.
- There shall be consolidation of the identified suits with the present suit.
Full Case Text
Judgment text and source record
84 paragraphs
Land and Environmental Law Division
2. Subject of Main Suit: - Land
LR No. 609 Watamu Land ownership
Land
a) New titles issued
Kilifi/Jimba 1160
Kilifi/Jimba 1161
Kilifi/Jimba 1162
Kilifi/Jimba 1411
b) Claim 1st defendant leased new title and issued to 2,3,4,5 & 6 defendants.
c) rregular registration and overlap of land.
3. Civil Practice and procedure
a) Application to consolidate suits
b)Suits concern similar points of law and facts.
c)One property registered under two different systems of law
4. Application - opposed by all respondents.
5. Held. Consolidation granted
6Case Law.
a) Sammy Mwangi & 9 others vs Commissioner of Lands & 9 Others
Hccc298 of 2003, Ransely, J.
b) Muturi Investments Limited vs National Bank of Kenya
Hccc 199 of 2005
Thongori instructed by Judy Thongori & Co. Advocates for the plaintiff/applicant
Dr. Khaminwa instructed by Khamiwna & Co. Advocates for the 6th defendant and holding brief for F. Kilonzo & Co. Advocates for the 2nd, 3rd, 4th and 5th defendants – present
A. Sitima for 7th, 8th and 9th defendants for the Attorney-General
J.K. Ritho interested party in person - present
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL SUIT 1623 OF 2007
SHEVA HOTELS LIMITED........................................PLAINTIFF
VERSUS
SHAIBU SOSHI FAMAU..............................1ST DEFENDANT
ELGA MACHOTTI.......................................2ND DEFENDANT
GLOVANNI OSS........................................3RD DEFENDANT
BARBARA BIACHI.....................................4TH DEFENDANT
HANS-DIETTER KURT WALTER LOYALL....5TH DEFENDANT
PIERE LAPORTE LTD............................... 6TH DEFENDANT
LAND REGISTRAR KILIFI.........................7TH DEFENDANT
COMMISSIONER OF LANDS....................8TH DEFENDANT
HON. ATTORNEY GENERAL ……..…....... 9TH DEFENDANT
RULING
CONSOLIDATION OF SUITS
ORDER XI R 1 AND 2 CIVIL PROCEDURE RULES
SECTION 3A CIVIL PROCEDURE ACT
DATED 8 NOVEMBER 2007
I: Background
1. There is a position of land situated in Watamu within the Kilifi District originally Chembe/Kibabamushe, Jumba and Mandetaini area registration section.
2. There appears to be one piece of land property that had been subjected to two different land registration systems.
The plaintiff herein M/s Sheva Hotel Limited claim to have been allocated land parcel LR 609 Watamu by the Government of Kenya. Other persons who include the defendant herein are duly registered under the same parcel of land duly such divided as:-
(i) Kilifi/Jimba 1160
(ii) Kilifi/Jimba 1161
(iii) Kilifi/Jimba 1162
(iv) Kilifi/Jimba 411
And title issued under the Registered Land Act Cap 300.
3. The applicant / plaintiff sought the cancellation of titles issued under the Registered Land act and further restrain the said defendant from encroaching onto their land.
4. On realizing there were two section of land and several suits in connection with the matters in question; the plaintiff applicant prayed for the consolidation of suit.
II. Application 8. 11. 07
The suit to be consolidated are:-
Hccc 955/95
Hccc2387/81
Hccc2577/96
And to be so consolidated with this suit Hccc1083/05
5. The said suit seeks to ask the court to cancel the applicants plaintiff title and or declare the other parties title as being defective. The case law submitted of:-
Muturi Investments Limited
V
National Bank of Kenya Limited
Civil Suit No.199 of 2005
6. The other parties in the suit oppose the application for consolidated and stated that it would serve no useful purpose.
III. Findings
7. It is true that there are various suits filed concerning the land parcels in question herein. There are two or more systems of registrations that has been applied. This questions arises as to which is the correct system of registration.
8. I did indeed call all parties concerned on this matter and dealt with the issue of consolidation. Some advocates apposed to consolidate the matter others agreed.
9. A hearing date for the suit has already been taken.
10. I would in the interest of justice allow the application to consolidate the suit herein with those that are before this court as prayed.
11. I recognize the applicant plaintiff was sued with one Raymond Njenga (a former Commissioner of Lands) who had differences with S.K. Ritho on this parcel of land as employees of the Government in the Lands Department.
12. The application be and is hereby allowed. There be consolidation of the suits.
13. That the costs be in the case.
DATED THIS 30TH DAY OF JULY 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
J. Thongori instructed by Judy Thongori & Co. Advocates for the plaintiff/applicant
Dr. Khaminwa instructed by Khamiwna & Co. Advocates for the 6th defendant and holding brief for F. Kilonzo & Co. Advocates for the 2nd, 3rd, 4th and 5th defendants – present
Sitima instructed by sitima & Co. Adovcates for the defendant – present
J.K. Ritho interested party in person - present