Mutu & 2 others v Gathina & 3 others; Karuga & 4 others (Interested Parties) [2023] KEELC 22216 (KLR)

Mutu & 2 others v Gathina & 3 others; Karuga & 4 others (Interested Parties) (Environment & Land Case 51 of 2017 & 211 of 2018 (Consolidated)) [2023] KEELC 22216 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22216 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case 51 of 2017 & 211 of 2018 (Consolidated)

BM Eboso, J

December 7, 2023

Between

Samuel Kimani Mutu

1st Plaintiff

Serah Wanjiku Mutu

2nd Plaintiff

Abraham Mwangi Mutu

3rd Plaintiff

and

Mumbi Gathina

1st Defendant

Thindiu Gathina

2nd Defendant

Wambui Gathina

3rd Defendant

Philomena Njambi Mutu

4th Defendant

and

Chai Karuga

Interested Party

Nganga Munyua

Interested Party

Paul Kimani Kariuki

Interested Party

Tabitha Njoki Karanja

Interested Party

Peter Kamau Muturi

Interested Party

Ruling

1. Falling for determination in this ruling is the notice of motion dated 12/5/2023, brought by Samuel Kimani Mutu (referred to in this ruling as “the applicant”]. He seeks the following verbatim orders:1. That this honourable court be pleased to order a consolidation of this suit with Thika ELC No 579 of 2017. 2.That costs of this application be provided for.

2. The application is premised on the grounds outlined in the motion and in the applicant’s supporting affidavit dated 12/5/2020 [sic]. It was canvassed through brief oral submissions on 27/9/2023. The case of the applicant is that Thika ELC Case No 51 of 2017 [this suit] and Thika ELC Case No 579 of 2017 involve the same subject matter, to wit, land parcel number Ndarugu/ Gacharage/490, adding that he is a plaintiff in both suits. He contends that the two suits “can be consolidated since the parties are the same and the cause of action is also the same.”

3. The applicant deposed as follows in paragraphs 6, 7, 8 and 9 of his supporting affidavit:“6)That the principles of consolidation of suits were re-stated in Stumberg and another v Potgeiter 1970 EA 323 as follows: Where there are common questions of law or facts in actions having sufficient importance in proportion to the rest of each action to render it desirable that the whole of the matters should be disposed of at the same time, consolidation should be ordered.7)The consolidation of the two suits will avoid inconsistencies when judging the two matters.8)That vide the proceedings of July 10, 2018 before J. K Bor at page 5 I made a request to have ELC No 579 of 2017 be consolidated with this suit upon transfer from Nairobi. Attached herein is a copy of the proceedings marked SKM 1. 9)That consolidation will enable disposal of the two suits spontaneously and will facilitate the efficient and expeditious disposal of disputes and provide a framework for a fair and impartial dispensation of justice to all the parties.”

4. In his oral submissions, the applicant argued that he wants the two suits consolidated because he lodged an appeal against the Judgment of this court [Ong’ondo J], adding that the court was misled into consolidating this suit with some other suits.

5. The 3rd plaintiff opposed the application on the ground that judgment in this suit and in the other consolidated suit was rendered by Ong’ondo J. The 3rd defendant contended that, given the above circumstances, this suit is not available for consolidation. The 4th defendant similarly opposed the application on the same ground, adding that this suit having been determined, the only avenue available to the applicant is an appeal.

6. I have considered the application dated 12/5/2023 together with the submissions that were tendered by the parties. The single issue to be determined in this ruling is whether the criteria for consolidation of suits by a trial court has been satisfied. The principle that governs a trial court’s exercise of the jurisdiction to consolidate suits is well settled.

7. The Supreme Court of Kenya outlined the relevant guiding principle in Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) as follows:“Consolidation of suits or appeals will be ordered where there are common questions of either law or fact in two or more suits or appeals and where it is desirable that all the related matters be disposed of at the same time.”

8. The Supreme Court of Kenya outlined the essence of consolidation of suits in Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR as follows:“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes, and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it. In the matter at hand, this Court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues. In addition, the Court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed.”

9. This suit, Thika ELC Case No 51 of 2017, was consolidated with Thika ELC Case No 211 of 2018. The two consolidated suits were heard by Ongondo J who subsequently wrote and signed a Judgment dated 29/4/2019 disposing the two consolidated suits. The Judgment disposing the two consolidated suits was read by Gacheru J on behalf of Ong’ondo J on 14/6/2019. The two suits are therefore not pending trial. They have already been disposed. Put differently, the issues in the two suits have already been determined. Consequently, Thika ELC Case No 51 of 2017 and Thika ELC Case No. 211 of 2018 are not available for consolidation with any other suit pending in this court at this point in time. It is therefore my finding that the application dated 12/5/2023 does not meet the criteria for consolidation. The result is that the application is declined. The same is dismissed. The applicant shall bear costs of the application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 7TH DAY OF DECEMBER 2023B M EBOSOJUDGEIn the presence of: -Mr Samuel Kimani Mutu - Present in PersonMr Njoroge Advocate for Philomena Njambi MutuCourt Assistant: Dominic