[2007] KEHC 543 (KLR)
The court found that both suits concern the same subject matter—ownership of land parcel LR 11595—and involve overlapping parties and reliefs. Section 6 of the Civil Procedure Act requires that where a matter is directly and substantially in issue in a previously instituted suit between the same parties, any...
Source-derived case information.
- Citation
- [2007] KEHC 543 (KLR)
- Parties
- Plaintiff: Wangui Karanja; Plaintiff: Salome Njeri Karanja; Defendant: Joseph Njenga Ng’anga; Defendant: Njane Kamau; Defendant: Francis Ndegwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1408 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Consolidation and Stay
- Outcome
- Application for consolidation declined; stay of subsequent suit granted; costs awarded to applicant.
- Legal Topics
- Consolidation of Suits, Stay of Proceedings, Land Ownership Disputes, Trespass, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wangui Karanja
Plaintiff
Salome Njeri Karanja
Plaintiff
Joseph Njenga Ng’anga
Defendant
Njane Kamau
Defendant
Francis Ndegwa
Defendant
Procedural Posture
Civil Case / Ruling on Application for Consolidation and Stay
Legal Issues
- 1 Should Civil Case 1408 of 1998 and HCCC 208 of 2000 be consolidated due to overlapping subject matter and parties?
- 2 Does section 6 of the Civil Procedure Act require a stay of the subsequent suit to avoid conflicting judgments?
- 3 Are the reliefs sought in both suits sufficiently similar to warrant consolidation or stay?
Ratio Decidendi
The court found that both suits concern the same subject matter—ownership of land parcel LR 11595—and involve overlapping parties and reliefs. Section 6 of the Civil Procedure Act requires that where a matter is directly and substantially in issue in a previously instituted suit between the same parties, any subsequent suit must be stayed to prevent conflicting judgments. The court noted that the defendants were aware of the pending suit and should have awaited its determination before filing a new one. Consolidation was not ordered due to lack of clarity on the representative nature of the subsequent suit, but a stay was granted to ensure judicial consistency and avoid contradictory...
Court Disposition
Application for consolidation declined; stay of subsequent suit granted; costs awarded to applicant.
Orders
- Suit HCCC 208 of 2000 is stayed under section 6 of the Civil Procedure Act pending determination of Civil Case 1408 of 1998.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1408 of 1998
WANGUI KARANJA ……………………….........………………… 1ST PLAITNFIF
SALOME NJERI KARANJA …....…………......…………………. 2ND PLAINT IFF
VERSUS
JOSEPH NJERNGA NG’ANGA ……………….……………… 1ST DEFENAN T
NJANE KAMAU ……………….………………………………. 2ND DEFENANT
FRANCIS NDEGWA ……….…………………………………. 3RD DEFENANT
RULING NO.1
I: CIVIL PRACTICE AND PROCEDURE
1. By an application dated 7 April 2006, the 1st and 2nd plaintiffs Wangui Karanja and Salome Njeri respectively seek this courts orders to consolidate their present suit Hcc1408/98 with another suit filed being Hccc208/00 that was there after filed against them and others.
2. The issue in question is that of land ownership and as a result the courts may come up with two different decisions if heard separately.
II: BACKGROUND OF APPLICATION OF 7 APRIL 2006
3. The two plaintiffs are in possession of land parcel LR 11595 grant number IR208 95 issued on 30. 9.1965 to the late James Karanja Kisu being 11. 5 acres. The two plaintiffs acquires possession through a succession cause.
4. On this very small land of 11. 5 acres the two plaintiff ran a dairy farm. They were invaded by the three defendants and a group of 60 people who cut the fence and wanted the land.
5. The plaintiffs sued the two in trespass. They had continued their acts of trespass and the plaintiff prayed that a permanent injunction do issue restraining the said defendants from trespassing onto their land.
6. Through M/s S.K. Ritho and Co. Advocates a group of 32 plaintiffs filed suit on 9 January 2000 by a plaint dated 8 January 2000 against the Kenya Government namely the Commissioner of Lands, Director of Surveys and the Kenya Railways Corporation.
7. The 32 persons claimed that during the colonial period their land was acquired and they were not compensated. A railway line was built and they were pushed out of the land at least 200 yards or more from the railway lines.
8 They sought orders that the title LR 11595 grants number IR20895 be cancelled and instead the 11. 5 acres be allocated to themselves.
9. The plaintiff filed this present application of 4 April 2006 seeking consolidation of the suit.
II: APPLICATION 4 APRIL 2006
10. I have not had sight of the suit Hccc208/00 but there is annexed the said extracts of the same. I am not able to know if the suit was filed as a representative suit or not.
11. The concerns the plaintiff/applicant have is that the same suit may be decided by different judges and come up with contradictory finding. This indeed should not occur. It is therefore necessary to consolidate the said suit. There would be several facts and law that may arise in the two causes. The subject matter are the same but the relief sort by the defendants are the same to the relief sought in Hccc208/00. They further argued that going back to the colonial laws on the motion of land law the defendants call “common law and native title” claim is highly inconsistent with the principles of extension of “native title” laid down in Isaac Warua wa Githiora & Another v Muritu (1922-23) a KLR 102 and
Obiero v Opiyo (1972) EA 388 whereby it recognize such rights would bring chaos in the countrys’ land law.
12. All this, of course, will be the issues to be argued and discussed in the main suit.
13. This application has been brought up under Order XI r 1 and 2 Civil Procedure Rules that the suits be consolidated.
14. Should these two suits be consolidated?
III: FINDINGS
15. The section 6 of Civil Procedure Act states that where there is a trial and suit filed thereafter is brought another suit, then the suit should be stayed.
In the case of :-
Landeco Ltd v Gregory Pragassa
Hccc900/06, Anga’wa,J. unreported
This court stayed a suit under section 6 of the Civil Procedures Act.
16. The defendant in this suit were aware of the suit against them. They should have completed this suit first before instituting a subsequent suit.
17. I hereby find that the suit Hccc208/00 be stayed under section 6 of the Civil Procedure Act pending the determination of this present suit. I award costs to the applicant.
Dated this 13th day of June 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
P.Nganga for Kamau Kuria & Kiraitu Advocates for the defendant
S.K. Ritho for S.K. Ritho & Co. Advocates for the defendant