[2024] KEELC 3502 (KLR)
The court found that although the two matters involve the same parcel of land, they are founded on distinct facts and branches of law: one claim is based on adverse possession, while the other arises from proceedings under the (now repealed) Land Disputes Tribunals Act. The absence of pleadings from Kakamega CM...
Source-derived case information.
- Citation
- [2024] KEELC 3502 (KLR)
- Parties
- Applicant: Jesca Inyanje Shirandula; Applicant: Shisambula Shiundu; Respondent: Musa Kimaru Rugut
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E002 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Transfer and Consolidation
- Outcome
- application dismissed
- Judges
- DO Ohungo
- Legal Topics
- Case Transfer, Consolidation of Suits, Adverse Possession, Land Disputes Tribunal, Conflicting Decisions, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesca Inyanje Shirandula
Applicant
Shisambula Shiundu
Applicant
Musa Kimaru Rugut
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Transfer and Consolidation
Legal Issues
- 1 Whether Butali MCELC No. E030 of 2021 (OS) should be transferred to Chief Magistrate’s Court Kakamega for consolidation with Kakamega CM Misc. Application No. 31 of 2019.
- 2 Whether consolidation of the two matters is appropriate given their factual and legal differences.
- 3 Whether there is a risk of conflicting decisions if the matters proceed separately.
Ratio Decidendi
The court found that although the two matters involve the same parcel of land, they are founded on distinct facts and branches of law: one claim is based on adverse possession, while the other arises from proceedings under the (now repealed) Land Disputes Tribunals Act. The absence of pleadings from Kakamega CM Misc. Application No. 31 of 2019 further undermined the applicants' case for consolidation. The court held that consolidation would not be advisable as it could create confusion due to the different legal bases of the claims, and there was no real risk of conflicting decisions since the courts would be apprised of any relevant orders. Accordingly, the application for transfer and...
Court Disposition
application dismissed
Orders
- Notice of Motion dated 2nd August 2023 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
Shirandula & another v Rugut (Environment and Land Miscellaneous Application E002 of 2023) [2024] KEELC 3502 (KLR) (2 May 2024) (Ruling)
Neutral citation: [2024] KEELC 3502 (KLR)
Republic of Kenya
In the Environment and Land Court at Kakamega
Environment and Land Miscellaneous Application E002 of 2023
DO Ohungo, J
May 2, 2024
Between
Jesca Inyanje Shirandula
1st Applicant
Shisambula Shiundu
2nd Applicant
and
Musa Kimaru Rugut
Respondent
Ruling
1. The applicants moved the court through Notice of Motion dated 2nd August 2023, seeking transfer of Butali MCELC No. E030 of 2021 (OS) to Chief Magistrate’s Court Kakamega for consolidation with Kakamega CM Misc. Application No. 31 of 2019 and hearing and determination. The application is based on the grounds listed on its face and is supported by a supporting affidavit and further affidavit, both sworn by the first applicant.
2. The first applicant deposed that she is one of the plaintiffs in Butali MCELC No. E030 of 2021 (OS) and that she is the applicant in Kakamega CM Misc. Application No. 31 of 2019. She added that the two matters are related and that she would like to have them consolidated to avoid conflicting decisions. She annexed a copy of the originating summons in Butali MCELC No. E030 of 2021 (OS) and proceedings in Provincial Land Dispute Appeals Tribunal Case No. 82 of 2003.
3. The application was canvassed through written submissions. Although the respondent attended court severally and was given opportunities to file a replying affidavit and submissions, he did not file any.
4. The applicant argued that both matters concern the same parcel and that it is prudent and in the interest of justice to have them consolidated to avoid duplicity.
5. I have considered the application, the affidavits, and the submissions. A perusal of the annexed documents shows that the applicants herein are second and first applicants in Butali MCELC No. E030 of 2021 (OS) while the respondent herein is also a respondent in the matter. The matter has two other applicants who have not been made parties to this application. The applicants in the matter claim to have become entitled to the parcel of land known as Kakamega/Chemuche/354 through adverse possession.
6. The applicants herein have not annexed any pleadings filed in Kakamega CM Misc. Application No. 31 of 2019. It is possible that Kakamega CM Misc. Application No. 31 of 2019 is an application for adoption of an award by the Land Disputes Tribunal. A perusal of the proceedings annexed by the applicants shows that the subject matter of the tribunal case was Kakamega/Chemuche/354.
7. The applicants’ reason for seeking transfer is that the two matters are related and that they would like to have them consolidated to avoid conflicting decisions. Whereas the suit property in the two matters may be common, the claims are founded on very distinct facts and law. One is adverse possession while the other is grounded on the Land Disputes Tribunals Act, 1990 (repealed). In those circumstances, I do not think it would be advisable to consolidate the matters. Equally, I do not see any possibility of conflict of decisions since the claims are founded on different branches of the law. It is the duty of the parties to appraise respective courts of any orders made in the matters and the courts will make considered decisions.
8. I find no merit in Notice of Motion dated 2nd August 2023, and I therefore dismiss it. Considering that the respondent neither filed a response nor submissions, I make no order on costs.
DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 2ND DAY OF MAY 2024. D. O. OHUNGOJUDGEDelivered in open court in the presence of:No appearance for the ApplicantsThe Respondent present in personCourt Assistant: M Nguyayi