[2009] KEHC 2120 (KLR)
The court declined to uphold the preliminary objection, noting that the matter involves members of a church and should not be dismissed at a preliminary stage. The court observed that the subject matter and orders sought in this suit and H.C.C.C No. 181 of 2009 are similar. In the interest of justice, fair play, and...
Source-derived case information.
- Citation
- [2009] KEHC 2120 (KLR)
- Parties
- Applicant: Wilmose Kiplagat & 3 Others; Respondent: James David Reppart & 8 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 261 of 2009
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Consolidation
- Outcome
- preliminary objection dismissed; suits consolidated
- Judges
- A Ali-Aroni
- Legal Topics
- Preliminary Objection, Suit Consolidation, Church Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilmose Kiplagat & 3 Others
Applicant
James David Reppart & 8 Others
Respondent
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Consolidation
Legal Issues
- 1 Whether the preliminary objection raised by the defendants/respondents should be upheld.
- 2 Whether the suit should be consolidated with H.C.C.C No. 181 of 2009.
Ratio Decidendi
The court declined to uphold the preliminary objection, noting that the matter involves members of a church and should not be dismissed at a preliminary stage. The court observed that the subject matter and orders sought in this suit and H.C.C.C No. 181 of 2009 are similar. In the interest of justice, fair play, and expeditious disposal, the court exercised its discretion under Order XI Rule 1 of the Civil Procedure Rules to consolidate the two suits, with proceedings to continue under H.C.C.C No. 181 of 2009.
Court Disposition
preliminary objection dismissed; suits consolidated
Orders
- The preliminary objection is declined.
- This suit is consolidated with H.C.C.C No. 181 of 2009.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 261 OF 2009
WILMOSE KIPLAGAT& 3 OTHERS ................................. PLAINTIFFS/APPLICANTS
VERSUS
JAMES DAVID REPPART & 8 OTHERS ......................... DEFENDANTS/RESPONDENTS
RULING
The Plaintiffs/Applicants herein filed a plaint on the 18th of May, 2009, simultaneously with the suit was filed a Chamber Summons under the Provisions of XXXIX Rule 1(a) 2 & Order XI Rule 1 of the Civil Procedure Rules.
In response to the said application the Defendant/Respondent filed a notice of Preliminary Objection which notice was argued before me on the 28th May, 2009 and is the subject of this ruling.
I have considered the issues raised in the Preliminary Objection and submissions by both learned counsels. I decline to uphold the Preliminary Objection raised first, in view of my ruling in H.C.C.C No.181/2009. Secondly this is a matter involving members of a church and in my view cannot be dismissed at a Preliminary stage, having said that I pose to wonder why the Plaintiffs/Applicants’ counsel who is the counsel in H.C.C.C No.181/2009 where the 1st Plaintiff is the 1st Defendant; where the subject matter and orders sought are more or less similar to the ones being sought in this suit opted to file this current suit. That as it may and in the interest of justice, fair play & expeditious disposal of these matters namely H.C.C.C No. 181/2009 and the current suit I will excise my discretion and invoke order XI rule (1) which provides –
“1. Where two or more suits are pending in the same court in which the same or similar questions of law or fact are involved the court may either, upon the application of one of the parties, or of its own motion, at its discretion, and upon such terms as may seem fit.
(a)Order a consolidation of such suits and ....”
I accordingly order for consolidation of this suit with H.C.C.C No. 181 of 2009, proceedings to proceed under H.C.C.C No.181 of 2009.
Dated and delivered at Nairobi this 14th day of July, 2009.
ALI- ARONI
JUDGE