WILMOSE KIPLAGAT & 3 OTHERS V JAMES DAVID REPPART & 8 OTHERS [2009] KEHC 2120 (KLR)

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