THE ESTATE OF THE LATE FESTUS GEORGE NDUNG’U (DECEASED) [2011] KEHC 353 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

(Coram: Ojwang J.)

CIVIL SUIT NO.248 OF 2010 (O.S.)

IN THE MATTER OF: THE ESTATE OF THE LATE FESTUS GEORGE   NDUNG’U (DECEASED)

IN THE MATTER OF: AN APPLICATION BYGEOFFREY KARIUKI KIMANI THROUGH HIS ATTORNEY JAMES THUO KARIUKI FOR HALF SHARE OF THE PROPERTIES KNOWN AS MOMBASA/BLOCK XVIII/328, 329, 330, 331,332 & 374 POPULARLY KNOWN AS RUKIYA BUILDING ALONG KENYATTA AVENUE, MOMBASA

GEOFFREY KARIUKI KIMANI [suing through his attorney]

JAMES THUO KARIUKI………………..............…………………PLAINTIFF

-VERSUS-

1. PASQUALINA NYOKABI NDUNG’U

2. BLUE BELT INVESTMENTS LIMITED………….…DEFENDANTS

RULING

The 2nd defendant moved the Court by Notice of Motion dated and filed on 17th November, 2010 brought under ss.1A, 3A and 80 of the Civil Procedure Act (Cap. 21, Laws of Kenya) and Orders XI [Rules 1, 2] and XLIV [Rules 1, 2] of the earlier edition of the Civil Procedure Rules.

The prayers due for consideration herein are as follows:

(i)that, there be an order of consolidation of this suit with HCCC No. 210 of 2003 [Festus George Ndung’u v. Diamond Trust Bank (K) Ltd & Geoffrey Kariuki Kimani];

(ii)that, the consent order dated 17th September, 2010 be varied to its original form, and all rentals collected from September, 2010 be deposited in Court pending the hearing and determination of the suit;

(iii)that, the costs of this application be provided for.

The grounds for this application may be set out, in summary, as follows:

(a)that, 2nd defendant purchased the suit property from 1st defendant, as a bona fidepurchaser for value;

(b)that, 2nd defendant has been in lawful possession of the property for more than one year – and this fact had not been disclosed to the Court;

(c)that, the plaintiff’s interest over the property has only been brought to the attention of 2nd defendant recently, when the suit was filed;

(d)that, the plaintiff and 1st defendant, in the consent order of 17th September, 2010 concealed material facts from the Court:

(a)that, they did not disclose that 2nd respondent has been in possession of the property and has been collecting rent for over one year;

(b)that, they did not disclose that  the 1st defendant has so far received Kshs.43 million out of the agreed purchase price of Shs.74 million;

(c)that, they did not disclose that the registration of transfers over the suit property in favour of 2nd defendant is pending registration and was only stopped by this Court’s order of20th August, 2010;

(d)that, the material non-disclosures have caused the 2nd respondent grave injustice, as it has parted with Kshs.43 million to-date;

(e)that, the consent of17th September, 2010is a sham, entered into as a conspiracy to defeat 2nd respondent’s right over the suit property;

(f)that, 2nd respondent will suffer irreparable loss and damage;

(g)that, “it is absolutely necessary” that the order of17th September, 2010be reviewed and/or varied;

(h)that, it is also fair and in the interest of justice that consolidation be allowed, so that the matter is adjudicated upon expeditiously.

The Managing Director of 2nd defendant, Alwi Shariff Ali, swore a supporting affidavit on 17th November, 2010 deposing (in summary) as follows:

(i) the 2nd defendant purchased the suit property from 1st defendant for a consideration of Kshs.74 million, and the agreement for sale is exhibited;

(ii) during the search conducted prior to the execution of the agreement for sale, no interests of the plaintiff’s were found shown on the Registry records;

(iii) the plaintiff had failed to register his interest, to inform the world, and he should in principle, only pursue 1st defendant for debt in contract;

(iv) at the time of purchase of the suit property as aforesaid, the only encumbrances registered were charges in favour of Diamond Trust Bank, which 2nd defendant duly confirmed with the Bank, and the outstanding amounts agreed upon between the Bank and 1st defendant: payments to be made by 1st defendant out of the proceeds of sale;

(v) it is 2nd defendant’s good record of reduction of the purchase price, that led to 1st defendant handing over possession of the suit premises to 2nd defendant;

(vi) 2nd defendant proceeded with the good record of reduction of accrued payment of the price, by paying, inFebruary, 2010the sum of Kshs.2,999,997/= which was due to 1st defendant’s Advocates;

(vii) such progress in clearing the purchase-price was made even further, through payments to third parties at 1st defendant’s request; so that, to-date, 2nd defendant has already paid Kshs.43 million towards the purchase price for the suit property;

(viii) it is surprising in the circumstances, that 1st defendant, acting in collaboration with the plaintiff, is attempting to take rent-collection out of 2nd defendant’s charge;

(viii) it is equally surprising that 1st defendant, who is aware, from first-hand information, of the sale transaction, is at this stage giving recognition to the plaintiff’s proprietory claims on the suit property;

(ix) it is believed that 1st defendant’s conduct is an informal endeavour to secure further payment, over and above the contractual purchase price;

(x) 2nd defendant, today, has in its favour (a) possession of the suit property; (b) original title deeds in his custody; and (c) duly-signed transfers;

(xi) all the transfers have been duly stamped and presented for registration – save that, as it turns out, a caveat was lodged by the plaintiff against the suit property, inMay, 2009;

(xii) it is desirable that an order of consolidation of the two suits be made; such consolidation will enable the Court to hear all the parties concerned, and to determine the matter with finality.

The plaintiff’s reply to the depositions set out above came through learned counsel, Mr. John Mugambi Njagi (sworn on 15th February, 2011). The focus of Mr. Mugambi’s depositions is consent between the plaintiff herein, and 1st defendant; so the case being made by 2nd defendant is given a lower rank of priority. The salient elements in the replying affidavit may be thus set out:

(i)this Court had made an order on20th August, 2010, with Order No. 3 stating:

“That with effect from the beginning ofSeptember, 2010the plaintiff shall deposit in Court all rents collected from the suit premises, failing an alternative agreement between the parties as to any other mode of banking the said proceeds of rent; parties have leave to apply in this respect.”

(ii)the plaintiff and the defendant inHCCC No. 210 of 2003then made aconsent agreementvarying the orders of20th August, 2010;

(iii)a different set of orders had also been made inHCCC No. 248 of 2010 (OS),in respect of which the deponent avers:

“contrary to the expectation of the parties inHCCC 210 of 2003,I was surprised to learn from Jithiada Agencies Ltd. (an agency contracted to collect rent from the suit property) that a stranger toHCCC 210 of 2003(Blue Belt Investments Limited [2nd defendant/applicant herein]),had obtained adverse orders against bona fide parties toHCCC 210 of 2003, orders which were highly prejudicial and defeated the consent agreement earlier-on entered into by the said parties toHCCC 210 of 2003. The said agents were therefore unable to comply with the consent orders.”

(iv)inHCCC No. 248 of 2010 (O.S.)this Court made certain orders on17th November, 2010, some of these Orders being as follows:

“2. THATthese Orders shall apply to bothHCCC No. 248 of 2010 (OS)andHCCC No. 210 of 2003at the same time.

“3. THAT the Deputy Registrar shall ensure that the said two files are held together and brought before the Court always at the same time for common Orders.

“4. THAT there shall be a stay of theex parteOrder made inHCCC No. 210 of 2003dated17th September, 2010.

“5. THAT this Court’s Orders of the20th August, 2010in HCCCNo. 210 of 2003are hereby reinstated pending the hearing and determination of [the Notice of Motion of17th November, 2010].”

(v)the Orders listed under para. (iv) above “considerably affect parties toHCCC 210 of 2003without according them an opportunity to be heard, which is quite contrary to the rules of natural justice…”

(vi)a search with the Kenya Revenue Authority has shown that Bluebelt Investment Limited “is not even registered with KRA…in the document of payment of stamp duty… The PIN number held out as A0024813291 belongs to one SHARIF ALI ALWY and not Blue Belt Investments…”

(vii)the deponent is aware that one Alwy Shariff Ali claims to have entered into a contract with one Pasqualina Nyokabi Ndung’u [1st defendant in HCCC No. 248 of 2010 (O.S.)] and had paid a deposit in respect of purchase of the suit property;

(viii)the deponent questions the authenticity of the said sale agreement, and of the signature of Pasqualina Nyokabi Ndung’u thereon;

(ix)the 2nd defendant inHCCC No. 248 of 2010 (OS) had not complied with the terms of the contract of sale of the suit land;

(x)the deponent questions the validity of the payments allegedly made by 2nd defendant inHCCC No. 248 of 2010 (OS), towards the purchase of the suit property;

(xi)the deponent avers that 2nd defendant inHCCC No. 248 of 2010 (OS)has come before the Court in bad faith, and has relied on false documents and forgeries.

M/s. Balala & Abed, Advocates for 2nd defendant/applicant, urged that the evidence on file shows the plaintiff/respondent to be claiming no more than “a beneficial right over the properties, which right was not registered at the time when the applicant herein signed a contract with the administrator of the estate of Festus George Ndung’u.”

Counsel urged that the plaintiff’s claim presents no valid position in law, in view of the terms of s.28 of the Registered Land Act (Cap.300, Laws of Kenya), under which the property is registered; that section provides:

“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of the Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject –

(a)to the leases, charges and other encumbrances and the conditions and restrictions, if any, shown in the register; and

(b)unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by Section 30 not to require noting on the register:

Provided that nothing in this Section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.”

Counsel submitted that, there was no doubt, the registered owner at the time of the agreement for sale was Festus George Ndung’u (deceased), and not the plaintiff; the searches conducted in the Lands Office did not show the plaintiff to have any interest in the suit land. The only encumbrances on record were the charges registered against the title to the suit property. Counsel relied on the authority of the Court of Appeal decision, Javed Iqbal Abdul v. Bernard Alfred & Another, C.A. No. 11 of 2001, in which the importance of the registration record is underlined:

“With respect, I do not agree with the learned Judge. The only way one can determine whether there is any inhibition on the title is to undertake a search on the title. As at the time the appellant bought the suit land there was no legal impediment shown in the register to stop the 1st defendant as proprietor from dealing with the title or evidencing the plaintiff’s alleged proprietary interest.”

On the foregoing basis, counsel urged that 2nd defendant has a greater right over the suit properties than the plaintiff, whose alleged interest is unregistered.

Counsel submitted that 2nd defendant has a major interest in the suit premises, having paid in respect of it “colossal sums, part of which were used to discharge the suit premises from the banks.”

Counsel submitted that the plaintiff, as he has no registered interest in the suit properties, will have to process his case as a debt over the estate of Festus George Ndung’u; in particular as there is “no allegation or evidence that the plaintiff contributed to the acquisition of the suit premises. The plaintiff’s claim is that he lent money to the deceased and in return he was to be registered as a co-owner in 1985/86. ”

Learned counsel urged that the plaintiff had shown lack of diligence over his claims of rights, and so he is “now stopped from claiming such rights to the detriment of 2nd defendant.” Counsel submitted hat “had the plaintiff secured his interest as required, by registration, 2nd defendant would surely have avoided this transaction, as he would have seen the plaintiff’s interest in the register….” Counsel urged that the plaintiff’s affidavit sworn by John Mugambi Njagi on 15th February, 2011 “does not provide any important or crucial evidence against the applicant.”

Learned counsel urged that the two cases be consolidated and heard together; and he asked that the rentals be deposited in Court, pending final determination of the dispute.

Learned counsel M/s. Munyao, Muthama & Kashindi, Advocates who appeared for the plaintiff/respondent, contended that the application was “incompetent, bad in law and an abuse of Court process and ought to be dismissed with costs.”Counsel submitted that the applicant“has failed to extract and annex the order he seeks to be reviewed, which renders this application fatally defective…”

Counsel urged that the applicant had no locus standi to seek a variation of orders made under HCCC No. 210 of 2003: “It is clear from the record the applicant was not a party in HCCC 210 of 2003. The law is very clear that for one to apply to have a consent order reviewed or set aside, then one must be a party to the consent.”

Counsel relied on a High Court decision, Symon Gitari Munene Muchira v. Edward Njagi Muriithi & Another [2008] eKLR (Kasango, J), in which the following passage appears:

“It should be understood that a consent isessentiallya binding contract between the consenting parties. That being so, a stranger cannot seek to set aside such a consent, because such a stranger has no privity to such a consent, or, if you like, [such a] contract.”

Counsel contended that 2nd defendant/applicant had not established any legitimate interest in the suit property, and so should not be granted the orders sought. Counsel’s reasoning entails a differentiation of parties – one Alwy Shariff Ali, on the one hand, and Blue Belt Investments Limited [2nd defendant], on the other. In the words of counsel: “it is our submission that if at all there was an agreement as alleged, then the  same did not confer any interest [upon] 2nd defendant, since 2nd defendant was not a party thereto. The agreement relied on shows that it was betweenPasqualina Nyokabi Ndung’uas the vendor, andAlwy Shariff Alias the purchaser.”

Counsel expressed his doubts that “there was ever any agreement that was entered [into] as alleged or at all.” He submitted that since the property is still registered in the name of Festus George Ndung’u, the instruments of transfer are of no legal consequence, “insofar as they are not properly executed or attested and [insofar] as 1st defendant lacked legal capacity to transfer the property because her grant in the succession cause had not been confirmed.”

Counsel also submitted that his client had published a “caveat emptor” notice in the Daily Nation newspaper of 21st July, 2009: so any buyer was required to exercise caution in dealing with the property; and 2nd defendant should not, then, have “continued splashing a lot of money to various parties some of [whom] were not owners of the suit property.” Counsel urged that “the applicant did not exercise due diligence and [so], cannot come to claim it was a bona fide purchaser for value.”

Counsel submitted that the applicant had not met the conditions for setting aside a consent order, such conditions having been thus stated by the Court of Appeal in Brooke Bond Liebig (T) v. Maiiya [1975] EA 26:

“Prima facie, any order made in the presence and with the consent of the counsel is binding on all parties to the proceedings or action and on those claiming under them…and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to [the] policy of the Court…or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the Court to set aside an agreement.”

Counsel cited also Hassanali v. City Motor Accessories Ltd & Others [1972] E.A. 423, in which the Court of Appeal held that (p.423) “the Court cannot interfere with a consent judgment except in circumstances which would afford good ground for varying or rescinding a contract between the parties.”

On the basis of the foregoing authorities, counsel urged that “the order was made in the presence and with the consent of [counsel] of the parties and so it is binding.”

Counsel urged that the prayer for consolidation be refused: “the matters of HCCC No. 210 of 2003 and HCCC No. 248 of 2010 cannot be consolidated and heard together since, though they touch on the same suit property, they seek radically different prayers. HCCC No. 248 of 2010 initiated by the plaintiff herein has been instituted by way of Originating Summons seeking….a quick determination of the plaintiff’s right [to] half-share of the suit property herein. [But] HCCC No. 210 of 2003…was initiated by way of plaint by Festus George Ndung’u who is now deceased, and the plaintiff herein was enjoined as 2nd defendant. The two matters cannot in law be consolidated because the circumstances have now changed…”

M/s. Mugambi & Co. Advocates made submissions on behalf of 2nd defendant in HCCC No. 210 of 2003 [Geoffrey Kariku Kimani] who appears again as the plaintiff [albeit suing through his Attorney, James Thuo Kariku] in HCCC No. 248 of 2010 (O.S.).

An assessment of these submissions is made here – notwithstanding the obvious overlap of subject-matter and of parties.

Learned counsel, Mr. Mugambi who made these submissions, urges that the matter in both causes “involves the same suit property aptly described as Rukiya Building that rests on titles No. Mombasa/Block XVII/328, 329, 330, 331, 332 and 374 respectively.”

This acknowledgment must, in the end, be taken into account as this Court determines the application herein – and in particular, the applicant’s prayer regarding consolidation of a suit-by-plaint, on the one hand, and a suit by Originating Summons, on the other hand. I can see at this early stage that the determination of that question will be governed also by the Court’s perception of the prospect of ends of justice being met, where the two suits, though founded on the very same properties, are determined separately.

Mr. Mugambi was contesting the applicant’s several prayers, firstly, the prayer that there be a stay of the consent order obtained ex parte in HCCC No. 210 of 2003; that order, to which the applicant herein is not a party, thus states:

“That with effect from the beginning of September, 2010 the plaintiff shall deposit in Court all rents collected from the suit premises, failing an alternative agreement between the parties as to any other mode of banking the said proceeds of rent; parties have leave to apply in this respect.”

In the absence of the applicant herein, the parties in HCCC No. 210 of 2003 proceeded to make their own consent arrangement, on the basis of the following mutually-agreed guideline (as between those parties): “[Since] the subject property was a commercial building that requires to be managed day by day it was only prudent that the income generated by the said building be within the reach of both parties in HCCC No. 210 of 2003. ” This was the basis of a new Court order made on 17th September, 2010.

Counsel puts up a defence of such a possible status quo, in the face of the demands of a new party to HCCC No. 210 of 2003, namely the applicant herein. And his essential argument is that, doctrineprotects consent agreements; in his words:

“It is settled law that a consent order can only be set aside on the grounds that would justify the setting aside of a contract, e.g., fraud, mistake, or misrepresentation.”

For effect, counsel invokes the High Court decision in Kanampiu M’rimberia v. Julius Kathanje [2006] eKLR (Lenaola, J.) as well as other decisions (Kenya Commercial Bank Ltd. V. Specialized Engineering Co. Ltd. [1982] KLR 485; Flora Wasike v. Destimo Waboko [1982-88] 1 KLR 625; Brooke Bond Tea Ltd. V. Mallya[1975] E.A. 266), for the proposition that “a consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved it was obtained by fraud or collusion or by an agreement contrary to the policy of the Court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the Court to set aside an agreement.”

Although, however, Mr. Mugambi has set much store by the foregoing argument founded on recognized legal doctrine, it must be stated now that such a point is apt to mislead, and so, cannot be the basis for deciding the application herein: his argument will be valid for the parties in HCCC No. 210 of 2003, but not for the applicant herein, 2nd defendant in HCCC No. 248 of 2010 (O.S.) who, in effect, is seeking interlocutory remedies founded on equity, on the grounds that the parties in HCCC No. 210 of 2003 are attempting, in collusion, to appropriate this party’s rights in law. The consent in question is being, in effect, contested as a collusive consent for the deprivation of a third party. Insofar as the said third party (the applicant herein) is properly before the Court as 2nd defendant in HCCC No. 248 of 2010 (O.S.), which this Court held must be viewed together with HCCC No. 210 of 2003, I will hold at this stage that the doctrine on the sanctity of consents reached between parties, is inapplicable in this matter.

Learned counsel has raised a second technicality: that since HCCC No. 248 of 2010 (O.S.) and HCCC No. 210 of 2003 have been brought by differing suit-procedures, they ought not to be consolidated; in the words of counsel: “[The] present suit being HCCC No. 248/2010 is instituted by way of Originating Summons while HCCC No. 210 of 2003 is by way of plaint. The former is primarily seeking declaratory orders while the later is seeking for rectification of title by way of counterclaim, which orders are at great variance as between the parties. The causes of action being at variance, we submit that the two [files] should not be consolidated.” On this point, counsel invoked High Court authority, Serah Hersi Moghe v. National Bank of Kenya [2005] eKLR (Sergon, J.): (i) that the procedure of Originating Summons is designed for the summary or      ad hoc determination of points of law, construction or certain specific facts or for obtaining of specific facts or directions of the Court; (ii) that the procedure of Originating Summons is intended for simple matters and enables the Court to settle them without the expense of bringing an action.

Still another technical point raised by counsel is that “the purported agreement that is sought to be relied on as having been executed on 27th February, 2009 is by one Alwy Shariff Ali and not the applicant herein (Bluebelt Investments Limited) [who is] the 2nd defendant/applicant in the present suit. The 2nd defendant/applicant being a corporate body is in law distinct from [the] individual. Therefore, the applicant cannot allege that [it] has paid a sum of Kshs.43 million through a third party…”

Learned counsel Mr. Abed, who appeared for the applicant, submitted that the consolidation of the two files was essential, to enable the Court to determine the issues between the parties fairly: whereas the applicant was not a party to HCCC No. 210 of 2003, that suit, same as HCCC No. 248 of 2010 (OS), touched on crucial issues of ownership of the suit properties; and, under HCCC No. 210 of 2003, several orders had been made which affected the applicant’s rights to property; the orders in HCCC No. 210 of 2003 directly affected the applicant’s rights being asserted in HCCC No. 248 of 2010 (OS); the plaintiff in HCCC No. 248 of 2010 (OS), as a defendant in HCCC No. 210 of 2003, was fully aware of the applicant’s interests in the Court Orders made on 20th August, 2010; therefore, in the interests of justice, the two suits should be consolidated; no prejudice would be occasioned to any party on account of a consolidation.

Mr. Abed urged it to be significant that the respondents after obtaining orders, in the applicant’s absence, for the rental-proceeds to be deposited in Court, proceeded between themselves to make a consent embodying a different arrangement, even when they were well aware of the applicant’s claim to such rental-proceeds. In counsel’s words: “it is to the detriment of the applicant; the move had been done mischievously to cheat the applicant on the proceeds of the [suit] property.”

Counsel objected to the long affidavit by learned counsel Mr. Mugambi, which carried factual statements regarding the status of the suit property.

Why is it necessary to have two suits, involving the very same properties, running in parallel? The same Advocates are involved, for the most part, and they ask the Court to resolve the disputes in the two suits separately. Technical grounds are presented, justifying the separation of the two cases, even though, ultimately, the vital question is, who is the owner? The applicant herein claims to be the owner; but in one of the two cases, the applicant is not enjoined as a party; and the parties therein conduct themselves as if they are the only persons with a claim to the property. The applicant says his ownership of the property is well known to the respondents, who, in his absence, are making a deal over the property, with grave ownership implications. The Court is being persuaded to continue handling the two cases severally, on the basis of certain trite doctrines: the Court is told, for instance, that one of the suits comes by the dressing of Originating Summons, while the other comes by the garb of the plaint: and therefore, they ought not to be consolidated!

This Court must endeavour to deliver substantial justice in this matter, and its thinking is already, I believe, emerging from the text of this Ruling. The Constitution of Kenya, 2010, in Article 159, thus provides:

“159(1)…

(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles –

(a)……

(b)…….

(c) ………

(d) justice shall be administered without undue regard to procedural technicalities; and

(e) the purpose and principles of this Constitution shall be protected and promoted.”

A suit brought by plaint seeks judicial intervention, to resolve certain questions in dispute; and so it is, with a suit brought by Originating Summons. Therefore, where there is good cause, linked to the proper exercise of judicial discretion, or to the merits of the issues in dispute, then this Court will have the right, in law, to consolidate particular cases, regardless of the format in which they have been brought.

In the instant case, all questions being brought before the Court touch intimately on ownership of the suit properties; and the two suits herein are, at bottom, concerned with the ownership question. It is also clear to this Court that the parties in HCCC No. 210 of 2003 are aware that ownership of the properties in question is being claimed by a third party to that suit, the applicant herein. In equity, therefore, the parties are not allowed to run away with ownership rights, under the cover of HCCC No. 210 of 2003, leaving the applicant herein, who is 2nd defendant in HCCC No. 248 of 2010 (OS), high and dry.

The parallelism in the two cases entails mischief to the administration of justice, which this Court must set its face firmly against. The Court will, by that mischief, be placed in a position of ignorance as it issues orders from time to time, and some of these orders will stand in derogation from the rights and legitimate expectations of a particular party.

The respondents have raised the objection that the applicant’s claim is not to be upheld, because it confounds corporate status with personal status. In my judgment, the justice of this matter rests more on the property-ownership question, than on the said legal technicality, in respect of which, indeed, locus poenitentiae would be given for any necessary amendment to the pleadings.

After considering the relevant issues, I have come to certain clear conclusions which I now set out as the Orders of this Court:

(1)HCCC No. 210 of 2003, Festus George Ndung’u v. Diamond Trust Bank (K) Ltd & Geoffrey Kariuki Kimani is hereby consolidated with HCCC No. 248 of 2010 (O.S.), Geoffrey Kariuki Kimani [suing through his Attorney] James Thuo Kariuki v. Pasqualina Nyokabi Ndung’u & Bluebelt Investments Limited.

(2)The consent Order dated 17th September, 2010 is hereby varied to its original form, and all rentals collected from September, 2010 shall be deposited in Court, pending the hearing and determination of the consolidated suit.

(3)The applicant herein has the liberty to amend and re-file its pleadings within 21 days of the date hereof; and in the event such amendment is effected, the other parties, too, shall have the liberty to make amendments to their pleadings within 21 days of the date of receipt of service.

(4) The costs of this application shall be in the cause.

SIGNED at NAIROBI ……………………………….

J.B. OJWANG

JUDGE

DATED and DELIVERED at MOMBASA this 13th day of September, 2011.

H.M. OKWENGU

JUDGE