[2012] KEHC 3284 (KLR)
The court found that HCCC 256 of 2009 had been disposed of by a consent order entered on 18th May 2010, which remains in force and has not been set aside. As a result, the suit is no longer pending, and consolidation with HCCC 313 of 2010 would not serve any purpose and would only confuse the issues in the remaining...
Source-derived case information.
- Citation
- [2012] KEHC 3284 (KLR)
- Parties
- Plaintiff: Sylvester Hasusa Makokha; Defendant: James Okao (T/A Okao & Company Advocates); Defendant: Njoroge Wachira (T/A Njoroge Wachira & Company Advocates); Plaintiff: Fatuma Amin Abdullahi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 313 of 2010
- Procedural Posture
- Civil Case / Direction on Application for Consolidation of Suits
- Outcome
- Application for consolidation declined.
- Judges
- DW Mbuteti
- Legal Topics
- Consolidation of Suits, Consent Orders, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Hasusa Makokha
Plaintiff
James Okao (T/A Okao & Company Advocates)
Defendant
Njoroge Wachira (T/A Njoroge Wachira & Company Advocates)
Defendant
Fatuma Amin Abdullahi
Plaintiff
Procedural Posture
Civil Case / Direction on Application for Consolidation of Suits
Legal Issues
- 1 Whether the two related civil suits should be consolidated given the status of HCCC 256 of 2009.
- 2 Whether consolidation is appropriate when one suit has been disposed of by consent.
Ratio Decidendi
The court found that HCCC 256 of 2009 had been disposed of by a consent order entered on 18th May 2010, which remains in force and has not been set aside. As a result, the suit is no longer pending, and consolidation with HCCC 313 of 2010 would not serve any purpose and would only confuse the issues in the remaining pending suit. The existence of a pending application to set aside the consent does not alter the fact that the suit has been disposed of until such time as the consent is actually set aside.
Court Disposition
Application for consolidation declined.
Orders
- The application to consolidate HCCC 313 of 2010 and HCCC 256 of 2009 is declined.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Case 313 of 2010 & 256 OF 2009
SYLVETER HASUSA MAKOKHA…………………………….……………... PLAINTIFF
VERSUS
1. JAMES OKAO (T/A OKAO &COMPANY ADVOCATES)
2. NJOROGE WACHIRA (T/A/ NJOROGE
WACHIRA & COMPANY, ADVOCATES)…………............…………....DEFENDANTS
AND
CIVIL SUIT NUMBER 256 OF 2009
FATUMA AMIN ABDULLAHI …………………………....…………………PLAINTIFF
VERSUS
SYLVESTER HASUSA MAKOHA & 4 OTHERS ………………..…….DEFENDANTS
DIRECTIONS
1. On 16th May 2011 the court was informed that these two suits are related in that the claim in HCCC 313 of 2010 is based on the other suit, HCCC 256 of 2009.
2. Mr. Enonda, learned counsel for the Plaintiff in 313 of 2010, was of the view that the two suits ought to be consolidated. Mr. Kabaka, learned counsel for the 1st Defendant in HCCC 313 of 2010, agreed.
3. Mr. Wachira, learned counsel for the 2nd Defendant in HCCC 313 of 2010, however, pointed out that HCCC 256 of 2009 was concluded by consent and that it is no longer pending. He stated further that an application there to set aside the consent that disposed of the suit was subsequently withdrawn. He was of the view that consolidation would thus not make any sense. Mr. Enonda pointed out that subsequently another application to set aside the consent in HCCC 256 of 2009 was filed and that the same was pending.
4. I have perused HCCC 256 of 2009. By an order entered on 18th May 2010 (Rawal, J) the written consent order of the same date duly signed by the Plaintiff’s advocates as well as the 1st, 2nd and 3rd Defendants’ advocates was made an order of the court. The consent included an order withdrawing the suit as against the 4th and 5th Defendants. The consent appears to have settled the suit as between the Plaintiff and the 1st, 2nd and 3rd Defendants.
5. The consent and order of 18th May 2010 remain in place and have not been set aside. HCCC 256 of 2009 is therefor no longer pending and has been disposed of, notwithstanding that there may be an application to set aside the aforesaid consent and order.
6. That being the case, it would not serve any purpose to consolidate these suits as one of the suits is no longer pending and has been disposed off. Consolidation can only confuse the issues in the pending suit.
7. I therefore decline at this stage to consolidate the suits. It is so ordered.
DATED AT NAIROBI THIS 6TH DAY OF JULY, 2012
H.P.G. WAWERU
JUDGE
SIGNED AND DELIVERED THIS 6TH DAY OF JULY, 2012