1. The 1st Defendant filed the Notice of Motion dated 15th January 2026 seeking the following orders;
1) That this Honourable Court be pleased to order the consolidation of the instant suit with the following suits:
a) ELCC 1286/2014 (as consolidated with ELCC 579/2015) PETER ELIUD MUTUA MAUNDU VS HEARTLAND HOLDINGS LTD & 6 OTHERS; and
b) ELCLC/E096/2024 AUGUSTINO ADHOLA VS EAST AFRICAN BUSINESS COMPANY LIMITED AND HEARTLAND HOLDINGS LIMITED AND 3 Others.
2. Further be stayed pending the hearing of the instant application.
3. The cost of the Application be borne by the Plaintiff/Respondent; and
4. Any other orders that this Honourable Court may deem appropriate.
2. The application is supported by the affidavit of TANUI KIPCHUMBA DENNIS Advocate and based on the grounds that the Hon. Justice M.D. Mwangi, previously gave directions on 29th October 2024 regarding a similar application, which was deemed premature at that time due to pending interlocutory applications and unresolved legal issues in both matters.
3. The Applicant contends that the two suits, being ELCC No. 1286 of 2014 (as consolidated with ELCC No. 579 of 2015) Peter Eliud Mutua Maundu vs Heartland Holdings Ltd & 6 Others and ELCLC/E096/2024 Augustino Adhola vs East African Business Company Limited, Heartland Holdings Limited & 3 Others, relate to the same disputed property registered in the name of the 1st Defendant and charged to the Interested Party.
4. He claims that ELCC No. 1286 of 2014 (as consolidated with ELCC No. 579 of 2015) was at the time of filing the application before the Hon. DR Vincent Kiplagat with a Mention date scheduled, while ELCLC/E096/2024 was fixed for hearing on 2nd February 2026 before Hon. Lady Justice Judy Omange.
5. The Applicant stated that allowing the determination of the dispute by different courts would expose the administration of justice to the risk of potentially conflicting decisions with respect to the same disputed property.
6. He further stated that the central question for determination by this Honourable Court, among other issues, is the existence of two titles in respect of one parcel of land, L.R. No. 20270, each bearing different I.R. Numbers and registered on different dates, namely IR No. 140681 registered on 22nd November 2012 and IR No. 148180 registered on 2nd September 2013.
7. The deponent averred that the suits share common parties, and the determination of the central issues will have a direct impact on the rights and obligations of the parties in both suits.
8. He referred to this Honourable Court’s directions given on 29th October 2024 regarding the prematurity of the application; it cited pending issues for determination in either case.
9. THAT the rights and reliefs claimed in both suits arise from the same series of transactions and circumstances and the consolidation sought will neither disadvantage nor prejudice any party, nor will it confer undue advantage upon the Applicants but will facilitate the expeditious disposal of the suits and conserve the Court's time, costs, and resources.
10. Further, consolidation will avoid the risk of inconsistent findings and judgments in relation to the same subject matter and promote the efficacious and expeditious disposal of the matters and provide a framework for the fair and impartial dispensation of justice to all parties.
3rd Defendants Replying Affidavit
11. Peter Eliud Mutua Maundu, swore an affidavit to oppose the application for consolidation on the ground that the parties and issues in ELC No. 096 of 2024 are entirely distinct from those in ELC No. 1286 of 2014 and ELC No. 579 of 2015, and are therefore not suitable for consolidation.
12. The 3rd Respondent contends that the Plaintiff is not a party to ELC No. 1286 of 2014 or ELC No. 579 of 2015, making it inconceivable for him to seek consolidation of suits in which he has no direct participation.
13. According to the Respondent, ELC No. 096 of 2024 concerns the legality of Title No. L.R. 140681 allegedly issued on 22nd November 2012 and later surrendered on 7th November 2013 without the Plaintiff’s consent, as pleaded in the Amended Plaint.
14. In contrast, ELC No. 1286 of 2014 and ELC No. 579 of 2015 concern allegations of land fraud allegedly perpetrated by the 1st Defendant against the proprietary interests of the 3rd and 4th Defendants in land parcel IR 14814 on 10th April 2014.
15. The Respondents further aver that the Plaintiff’s attempt to consolidate the matters is a deliberate effort to delay and evade the imminent hearing of ELC No. 096 of 2024, in which pre-trial procedures have already been concluded and the suit is ready for full hearing. They maintain that the Plaintiff has no legal standing or recognizable interest in ELC No. 1286 of 2014 and ELC No. 579 of 2015, including the execution proceedings for taxed costs amounting to Kshs. 4,056,940/=.
16. The Respondents additionally allege that the Plaintiff is acting as an agent of the 1st and 2nd Defendants and that ELC No. 096 of 2024 was instituted to complicate and obstruct the proceedings in the earlier suits. Consequently, they assert that consolidation would be improper and imprudent given the distinct facts, parties, and issues involved in the respective suits.
The Plaintiff/Respondent’s Replying affidavit
17. The Plaintiff/Respondent, Augustino Adhola, swore the replying affidavit in opposition to the instant application. He contends that the application for consolidation is misconceived, incompetent, and an abuse of the court process. He emphasizes that he is not a party to the other suits sought to be consolidated and argues that the Applicant has failed to demonstrate how a person who is not involved in those proceedings can fairly be subjected to them when he has no pleadings, claims, or participation in those matters. He further states that the cause of action in the present suit is distinct and arises from circumstances unique to his claim over the suit property.
18. The Plaintiff further avers that the Applicant has not shown that the issues in the other suits are directly and substantially similar to those in the current matter. He points out that the Applicant failed to annex the plaints, defences, or other pleadings from the other suits, thereby denying the Court the material necessary to assess whether the matters raise common issues capable of consolidation. Consequently, he argues that the Court cannot properly exercise its discretion in favour of consolidation without sufficient evidence demonstrating similarity of causes of action.
19. The deponent also states that consolidation would greatly prejudice him by delaying the expeditious hearing of the suit. He notes that the other suits date back to 2014 and contends that consolidation would unnecessarily drag him into prolonged litigation. According to him, his claim risks being submerged into disputes to which he is a stranger.
20. Further, the Plaintiff raises concerns regarding costs, arguing that the Applicant has failed to address the practical implications of consolidation, including who would bear costs, against whom such costs would be awarded, and in respect of which suit. He asserts that this uncertainty would expose him to unjust cost burdens in disputes he did not institute.
21. The Plaintiff deposes, on the advice of his advocates, that consolidation is only appropriate where the suits involve common parties, substantially similar issues, absence of prejudice to any party, and where consolidation would enhance efficient disposal of disputes. He maintains that the Applicant has failed to satisfy these conditions. He therefore believes that the application is merely intended to derail and delay the hearing of the present suit and urges the Court to allow the matter to proceed independently. Consequently, he prays that the Notice of Motion dated 15th January 2026 be dismissed with costs to the Plaintiff/Respondent.
22. The 2nd Defendant indicated that he was not opposed to the application
Analysis and Determination
23. The Court has considered the application herein and the replying affidavits filed opposing the application for consolidation and the single issue for determination is whether the suits mentioned in the application should be consolidated.
24. The law on consolidation of suits is well settled. Under Order 11 Rule 3 of the Civil Procedure Rules, the Court has discretion to consolidate suits where appropriate.
25. In Law Society of Kenya v Centre for Human Rights and Democracy & 12 others [2014] KESC 29 (KLR), the Court held that: -
“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.”
26. Similarly, in Stumberg & another v Potgeiter [1970] EA 323, the Court emphasized that: -
“Where there are common questions of law or facts in actions having suficient 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.”
27. Further, in Nyati SecurityGuards & ServicesLimited vMunicipal Council of Mombasa [2004] KEHC 1896 (KLR), the Court held that: -
“There are however situations where consolidation is undesirable like where in two action a plaintiff in one is a defendant in the other unless the claim in one is to be treated as a counterclaim in the other. The other situation where consolidation is undesirable is where the plaintiffs in two or more actions are represented by different advocates. In such situation the hearing will be longer than take long and the purpose of saving time will be defeated.”
28. From the foregoing consolidation of suits is appropriate where; there are common questions of law or fact, the rights or reliefs claimed arise out of the same transaction or series of transactions, or consolidation is desirable to avoid multiplicity of suits and inconsistent decisions.
29. In this case consolidation can be justified on the basis that the suits satisfy the established principles governing consolidation under the law, namely: the existence of common questions of law or fact, similarity of subject matter, avoidance of conflicting decisions, and the need to promote efficient and expeditious disposal of disputes.
30. Further, the Court finds that complete and effectual adjudication of the dispute requires all claims touching on the ownership and encumbrances over L.R. No. 20270 to be heard together. Since the property is allegedly registered in the name of the 1st Defendant and charged to the Interested Party, findings in one suit are likely to directly affect the rights and obligations of parties in the other suit. Consolidation would therefore prevent piecemeal adjudication and ensure that all issues concerning the property are resolved holistically.
31. In the present case, the prayers sought are;
A) A declaration that the surrender to the Government of Kenya in consideration of outright surrender in respect of L. NO. 20270 by the 5th defendant was fraudulent and therefore illegal, null and void.
B) A declaration that L.R No. 20270 currently registered in name of the 1" defendant was fraudulently obtained and therefore illegal, null and void.
C) An order canceling the registration of L.R No. 20270 in the name of the 1st defendant and reverting the same to the plaintiff.
D) An order compelling the 1" defendant to demolish and pull down all the structures standing on land parcel L.R No. 20270 and in default the plaintiff to be at liberty to demolish the same at the 1st defendants expense and under the supervision of police officers.
E) In alternative to prayer (c) and (d), an order that the 1st defendant to pay to the plaintiff the current market value for the suit premises.
32. In the suit ELC No. 1286 of 2014 the parties claim that the main suit was withdrawn. The prayers in the counterclaim are;
A) An order of court declaring that the Plaintiff and his co-owner one Peter Eliud Mutua Maundu are the legitimate proprietors of L.R. 20270
B) An Order of the court directing the 5th Defendant to cancel the transfer registered in the favor of the 2nd Defendant.
C) An order of court invalidating the entry registered as I.R. 148180/2 in the said transfer entered on the original title and deed file.
D) An order of the Court directing the 5th Defendant to cancel the said entry.
E) An order of court mandating the 2nd 3rd and 4th Defendants to immediately surrender the original title documents in respect of L.R. NO. 20270 to the Plaintiff's possession.
F) An order of court invalidating both the fraudulent agreement for sale dated 6th December 2013 between the Plaintiff, his co-owner and the 2nd defendant and the resultant transfer instrument dated 31st of March 2014 which was registered on 10th April 2014.
34. The strongest basis for consolidation in this case is that both suits revolve around the same parcel of land, namely L.R. No. 20270, and raise the central issue of competing titles allegedly issued over the same property. In both proceedings, the Court will inevitably be required to interrogate the validity, legality, priority, and effect of the two titles, namely IR No. 140681 and IR No. 148180, together with the transactions surrounding their issuance, registration, surrender, and subsequent dealings. The Court is of the view that there are substantial common questions of fact and law whose determination in separate courts risks inconsistent findings regarding ownership and proprietary interests over the same land.
35. A second basis in support of consolidation is the risk of contradictory or conflicting judgments. If the matters proceed independently before different judges, one court may uphold one title while another court reaches a contrary conclusion concerning the same parcel. Such an outcome would undermine certainty in land registration, prejudice the parties, and bring the administration of justice into disrepute. Consolidation would therefore enable one court to comprehensively determine all competing claims relating to the suit property in a consistent and coherent manner.
36. The Court has also considered the question of prudent, economical and efficient use of judicial time. Since the disputes concern interconnected transactions and overlapping evidence relating to the same property, separate hearings would likely involve duplication of witnesses, documents, and legal arguments. Consolidation would reduce multiplicity of proceedings, save time and costs, and facilitate expeditious disposal in accordance with Article 159(2) (b) of the Constitution, which requires justice not to be delayed.
37. Further, the Court finds that complete and effectual adjudication of the dispute requires all claims touching on the ownership and encumbrances over L.R. No. 20270 to be heard together. Since the property is allegedly registered in the name of the 1st Defendant and charged to the Interested Party, findings in one suit are likely to directly affect the rights and obligations of parties in the other suit. Consolidation would therefore prevent piecemeal adjudication and ensure that all issues concerning the property are resolved holistically.
38. In the present case, the prayers sought are;
a) A declaration that the surrender to the Government of Kenya in consideration of outright surrender in respect of L. NO. 20270 by the 5th defendant was fraudulent and therefore illegal, null and void.
b) A declaration that L.R No. 20270 currently registered in name of the 1" defendant was fraudulently obtained and therefore illegal, null and void.
c) An order canceling the registration of L.R No. 20270 in the name of the 1st defendant and reverting the same to the plaintiff.
d) An order compelling the 1" defendant to demolish and pull down all the structures standing on land parcel L.R No. 20270 and in default the plaintiff to be at liberty to demolish the same at the 1st defendants expense and under the supervision of police officers.
e) In alternative to prayer (c) and (d), an order that the 1st defendant to pay to the plaintiff the current market value for the suit premises.
39. In the suit ELC No. 1286 of 2014 the parties claim that the main suit was withdrawn. The prayers in the counterclaim are;
G) An order of court declaring that the Plaintiff and his co-owner one Peter Eliud Mutua Maundu are the legitimate proprietors of L.R. 20270
H) An Order of the court directing the 5th Defendant to cancel the transfer registered in the favor of the 2nd Defendant.
I) An order of court invalidating the entry registered as I.R. 148180/2 in the said transfer entered on the original title and deed file.
J) An order of the Court directing the 5th Defendant to cancel the said entry.
K) An order of court mandating the 2nd 3rd and 4th Defendants to immediately surrender the original title documents in respect of L.R. NO. 20270 to the Plaintiff's possession.
L) An order of court invalidating both the fraudulent agreement for sale dated 6th December 2013 between the Plaintiff, his co-owner and the 2nd defendant and the resultant transfer instrument dated 31st of March 2014 which was registered on 10th April 2014.
40. From the foregoing, it is clear that the suits concern the same parcel of land, namely L.R. No. 20270, and the evidence, witnesses, and legal issues substantially overlap, and separate determination of the matters by different courts poses a real risk of inconsistent and contradictory findings on ownership and proprietary rights over the same property.
41. Accordingly, this Court finds that the suits raise substantially common questions of law and fact concerning the ownership, validity, and priority of competing titles over L.R. No. 20270, and that separate determination thereof may result in inconsistent findings and multiplicity of proceedings. The Court is satisfied that consolidation will facilitate the fair, expeditious, and effectual determination of the disputes without occasioning prejudice incapable of compensation by costs.
42. Consequently, the Notice of Motion dated 15th January 2026 is hereby allowed on the following terms:
1) ELCLC/E096/2024 Augustino Adhola vs East African Business Company Limited, Heartland Holdings Limited & 3 Others is hereby consolidated with ELCC No. 1286 of 2014 Peter Eliud Mutua Maundu vs Heartland Holdings Ltd & 6 Others (as consolidated with ELCC No. 579 of 2015).
2) ELCC No. 1286 of 2014 shall be the lead file for purposes of all subsequent proceedings.
3) All pleadings, applications, witness statements, and documents filed in the respective suits shall be deemed as properly filed in the consolidated cause, subject to any further directions of the Court.
4) The consolidated suits shall thereafter be mentioned before this Court for further directions on hearing and disposal and further directions on the designation of the parties to the consolidated suit.
5) Parties are directed to exchange pleadings in the consolidated files before the next mention date.
6) Costs of the application shall be in the cause.
Delivered, dated and signed via Microsoft Teams this 14th day of May 2026.
HON. L. G. KIMANI
JUDGE ENVIRONMENT AND LAND COURT
The Ruling read in the presence of-
Odhiambo for the Plaintiff/ Respondent.
M/S Ochieng for the1st Defendant/Applicant.
Ojuok holding brief for Modi for the 2nd Defendant
| RULING MILIMANI ELC NO E096 OF 202414 of 15 |