DANIEL MBURUGU alias DANIEL M'MBURUGU VS BUURI INVESTIMENT LIMITED AND MICHAEL MACHARIA NJARARA

1.    Before the Court is the Plaintiff’s Notice of Motion dated 22nd of January 2025 seeking the following Orders:
1.    Spent.

2.    THAT an order do issue consolidating the instant suit with NYERI ELC CASE NO.686 OF 2014 MICHAEL MACHARIA NJARARA VS JEREMIAH NTWIGA MWENDA & JASPER NTWIGA MWENDA.

3.    THAT this Honourable Court be pleased to make such or further orders as it may deem fit, necessary and expedient in the interest of justice.

4.    THAT costs be in the cause.
2.    The grounds in support of the application are that this suit and Nyeri ELC Case No.686 of 2014, Michael Macharia Njarara Vs Jeremiah Ntwiga Mwenda & Jasper Ntwiga Mwenda, involve the same parcel of land, LR.NO.9831/14 Certificate of Title No. I.R 67392. The 2nd Defendant (Michael Macharia Njarar) in this suit is the Plaintiff in Nyeri 686 of 2014, while the 1st Defendant in Nyeri 686 of 2014 is a co-director (though deceased) of the 1st Defendant (Buuri Investment Ltd) in this suit. The two suits are said to involve the proprietary interests of the parties to the suit land, with the instant suit being based on adverse possession, while Nyeri 686 of 2014 is a subdivision of the land. Thus, the Applicant deposes that this claim and the claim in NYERI ELC 686 of 2014 concern the same parcel of land, which he states that he has been in occupation of part thereof, and the two suits raise common questions of law and facts
3.    . The 1st Defendant herein, Buuri Investment Ltd, is the registered owner of the land.

The Defendants/Respondents’ Replying Affidavit
4.    Karweru Muchemi Charles, Advocate on record for the Defendant/Respondents herein, swore a replying affidavit on 6th February 2025. He deposed that the applicant herein has always been aware of the existence of Nyeri E.L.C 686 of 2014, as he recorded a statement in the file on 25.2.2019.  The Applicant is involved in a criminal case with the defendants in Nanyuki C.M. Criminal Case No. 1929 of 2017, where he was duly convicted and is awaiting sentencing as per the annexed court judgement.
5.     That no reason has been given why the Applicant waited for over 10 years when ELC 686 of 2014 was pending before moving the court, noting that the Case is now at the defence stage with only the evidence of the 1st defendant witnesses remaining, the 1st defendant having already given evidence.
6.     Counsel expressed his sentiments that the causes of action in the two matters are different and should be tried separately, opposing the instant application.
The 1st Defendant in ELC 686 of 2014 replying affidavit
7.    Naomi Nkirote Muthomi filed two replying affidavits in the two suits subject matter of the present application for consolidation, where she supports the said consolidation. She confirmed that she is the 1st Respondent in ELC 686 of 2014 and that the subject matter in the two suits is the same parcel of land.
8.    She also deposed that Buuri Investment Ltd, the 1st Defendant in ELC E002 of 2023(O.S), is a company that was incorporated in 1995 and has two shareholders who are also the directors, the now deceased 1st Defendant (Jeremia Muthomi) and the Plaintiff in Nyeri ELC 686 of 2014, who is also the 2nd Defendant in Nyeri ELC E002 of 2023 (Michael Macharia Njarara).
9.    The 1st Defendant noted that the shares held by the deceased in Buuri Investment Ltd form part of his estate and agreed that it is proper that the cases be consolidated to enable the court to make an informed decision.
The Plaintiff/Applicant’s further affidavit
10.    The Plaintiff/Applicant swore a further affidavit in response to the Respondent’s replying affidavit. He deposed that the 2nd Defendant had prosecuted him in CM Criminal Case No.1929 of 2017, whose proceedings were stayed by the High Court Misc. Criminal Application No.2 of 2023 is pending the hearing and determination of this suit, as the Court found that the Respondents were using the criminal justice system for ulterior motives. The Applicant brought to the attention of this court that orders of injunction and inhibition were granted in this case in his favour against the respondents, preventing them from evicting him from the suit property.
11.    He further deposed that he is not a party to Nyeri ELC Case No. 686 of 2014, even though a decision in the suit will affect his interests in the suit land, which is the reason he made the instant application. The application is made in good faith and at the earliest. Since the hearing of Nyeri ELC Case No.686 of 2014 is yet to be concluded and has yet to reach the defence stage, the Plaintiff/Applicant deposed that he wishes to recall the Plaintiff for cross-examination.
12.    Noting that this Court has consolidated ELC 175 of 2015 with ELC 686 of 2014 as it also relates to the same subject matter, the Applicant deposed that this is a proper case for consolidation as advised by his Counsel on record.
The Applicants’ submissions
13.    Counsel for the Applicant submitted that the instant application is premised on Section 81(h) of the Civil Procedure Act, CAP 21 and Order 2 Rule 3 of the Civil Procedure Rules.
14.    It is submitted that common questions of law, such as who is entitled to what portion of the suit land, have arisen in the cases in question and that one decision will affect or prejudice the other if they are not consolidated or heard together.
15.    On Consolidation of suits, Counsel relied on the authorities of Benson G. Mutahi vs Raphael Gichovi Munene Kabutu & 4 others(2014)eKLR, where the Court stated the principles of consolidation of suits and the case of Law Society of Kenya vs The Centre for Human Rights and Democracy, Supreme Court of Kenya, Petition No.14 of 2013.
16.    It was concluded that the cases herein raise the same questions of law and fact over the same suit land, and the rights and claims sought in the three cases arise out of a series of transactions over the same land.

Defendants/Respondents’ submissions
17.    Counsel for the Defendants/Respondents herein submitted that the suit ELC 686 of 2014 has already been heard partly and that there is no reason given for the delay in filing the instant application.
18.    It is submitted that the issues of share entitlement under a contributory scheme by the two directors and adverse possession cannot be safely tied together.  Further, the applicant does not indicate that he bought the land from any of the parties in the suit 686/2014.
19.    They raised the issue that the plaintiff and the defendant shall be subjected to the proceedings in E002 of 2023, having already given evidence and closed the case in the full knowledge of the defendants and the applicant herein.
20.    Their submission, therefore, is that the applicant has come too late in the day and should pursue his cause of action differently, as he had always intended from 2014 when the earlier suit was filed. That no prejudice shall be engendered to the applicant if the suits are heard separately, and they pray that the application be dismissed with costs.

The 1st Defendant in 686 of 2014 submissions
21.    Counsel for the 1st Defendant in 686 of 2014 submitted that the two suits can be safely argued together. They relied on the decision in Omoke v Kenyatta & 83 others 2[2021] KESC 27 (KLR), where the Supreme Court held that the 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.
22.    They also submitted that in both cases, the dispute is about who is entitled to what share/portion of land within LR No. 9331/14 Certificate of Title No. I.R 6739.
23.    By considering the two cases together, the Court is better placed to make a decision that is wholesome and more responsive to the issues in dispute than having the issues determined separately, where conflicting decisions could easily be arrived at. They relied on the holding by Maraga, J, as he then was, in Nyati Security Guards & Services Ltd vs - Municipal Council Of Mombasa [2004] KEHC 1896(KLR)
24.    The Respondents, therefore, humbly request that this Honourable Court grant orders for the consolidation of the two suits as prayed for.
Analysis and Determination
25.    The application dated 22nd January 2025 seeks to consolidate this suit, O.S E002 of 2023, with ELC 686 of 2014 on the premise that both suits relate to the suit property, LR.NO.9831/14 Certificate of Title No. I.R 67392.
26.    On matters of consolidation of suits, Order 11 rule 3(h) of the Civil Procedure Rules 2010 provides that;
    "With a view to furthering expeditious disposal of cases and case management, the court shall, within thirty days after the close of pleadings, convene a Case Conference in which it shall consider consolidation of suits."
27.    In Benson G Mutathi V Raphael Gichovi Munene Kabutu & 4 others (2014) eKLR, cited and relied upon by the Applicant, the court consolidated a suit commenced by way of Plaint and one filed by Originating Summons, where one of the suits was partly heard. In arriving at the decision to consolidate the suits, the court relied on Law Society of Kenya vs the Centre for Human Rights, Supreme Court Petition No. 14 of 2013, where the Supreme Court held as follows:
    “The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it”
28.    Maraga, J, as he then was, in Nyati Security Guards & Services Ltd vs - Municipal Council Of Mombasa [2004] KEHC 1896(KLR) cited and relied upon by the 1st Defendant in 686 of 2014 held that:
    “The circumstances in which suits can be consolidated are broadly similar to those in which parties may be joined in one action. Accordingly, actions relating to the same subject matter between the same plaintiff and the same defendant, or between the same plaintiff and the same defendant, or between the same plaintiff and different defendants or between different plaintiffs and the same defendants may be consolidated.”
29.    It was held in Transcend Media Group v The Standard Group Limited [2021] eKLR, the court determined that before consolidation of a suit, the following should be considered.
(i)    that the suits should have common questions of law and facts
(ii)  the reliefs sought in both cases in respect of or arise from the same transaction or a series of transactions;
(iii) whether any party will be disadvantaged or prejudiced, or whether consolidation will confer any undue advantage to the other party
30.    The Court has considered the pleadings in the two cases sought to be consolidated. The present suit, E002 of 2023(O.S), is between Daniel Mburugu v Buuri Investment Ltd and Michael Njarara and was filed vide Originating Summons dated 21st July 2023. The Plaintiff therein, Daniel Mburugu, seeks orders of adverse possession on the claim of open, unhindered, notorious, undisturbed and uninterrupted occupation of 42 acres out of the suit land since 1995, a period exceeding 12 years.
31.    The first Defendant herein filed a written statement and a replying affidavit sworn on 7th February 2023, denying the Plaintiffs' claim. Notably, the 1st Defendant made reference to and annexed pleadings in Nyeri ELC No. 686 of 2014 and in Nanyuki Chief Magistrates' Criminal case number 1929 of 2017, where the Plaintiff in this suit is said to have been charged with the offence of forcible detainer and malicious damage to property on the suit land.
32.    Nyeri ELC No. 686 of 2014 (Consolidated with ELC No.175 of 2015), was between Michael Macharia Njarara (2nd Defendant herein) v Jeremiah Muthomi & Joseph Ntwiga Mwende. The suit was instituted vide Originating Summons dated 5th December 2014, seeking determination of several questions inter alia whether the Plaintiff and the 1st Defendant are the registered directors and shareholders in Buuri Investment Co. Ltd, whether the suit land was purchased by monies paid by both directors but the land is registered in the name of the company and should have been subdivided and allocated to the contributors on a pro-rata basis, whether the Plaintiff should have 57,35 Ha from the land, whether the defendants should produce in court documents of ownership and subdivision of the suit land, whether the defendants should be compelled to execute all deeds that would enable the 57.35 Ha to be transferred to the Plaintiff and whether the Deputy Registrar of the court and the Land Registrar ought to be compelled to execute all documents of title to enable registration of the Plaintiff as owner of 57.35 Ha out of the suit land.
33.    The Defendants in that suit filed their respective replying affidavits denying the Plaintiff’s claim and setting out what they believed were the parties’ respective entitlement to the suit land according to their contributions to the purchase price.
34.    It is to be noted that Jeremia Muthomi (deceased), represented by the Administrator of his estate, Naomi Nkirote Muthomi, and Michael Macharia Njarara, are said to be co-directors and shareholders of Buuri Investment Ltd, the registered proprietor of the suit land.
35.    From the foregoing, the Court is persuaded that the two suits, Nyeri ELC 686 of 2014 (OS) and Nyeri ELC E002 of 2023 (OS), raise common questions of law and facts. Further, the court deduces from the pleadings that the reliefs sought in both cases are in respect of and/or arise from the same transaction or a series of transactions and raise questions of proprietary rights and interests in land parcel number LR. 9831/14 Certificate of Title No. I.R 67392 registered in the name of Buuri Investments Ltd.
36.    The Court is alive to the essence of consolidation, which is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for fair and impartial dispensation of justice to the parties, as stated in the authorities cited above. The court has further considered whether any party will be disadvantaged or prejudiced, or whether consolidation will confer any undue advantage to the other party.
37.    The Court is aware that ELC 686 of 2014 had proceeded for hearing substantially, and the parties thereto may be disadvantaged and/or prejudiced by directions given on how the suit will proceed if consolidated. The Court has also considered that directions had also been taken at the time of pre-trial, and the Applicant did not indicate that he wished to consolidate the two suits.
38.    However, the Court is persuaded that the advantage to be gained by hearing the dispute between all the known protagonists in respect of the suit land LR. 9831/14 far outweighs any disadvantage to the parties. The court has considered that if the suits are heard separately, orders may be made that affect persons who are not parties to the respective suits and that may be at variance with each other. There is also a likelihood of witnesses being called repeatedly with the same evidence in different matters. In case the suits are consolidated, the witnesses may only be called once for all the suits. In the court's view, this will save judicial and the parties’ time and money.
39.    The Court agrees with the Applicant that the suits are suitable for consolidation and makes the following order;
1)    THAT an order consolidating the instant suit with NYERI ELC CASE NO. 686 of 2014 MICHAEL MACHARIA NJARARA VS JEREMIAH NTWIGA MWENDA & JASPER NTWIGA MWENDA is hereby issued.

2)    The lead file shall be NYERI ELC CASE NO. 686 of 2014.

3)    Costs of this application shall be in the cause.

Dated, Signed and Delivered at Nyeri, this 4th day of December 2025

In the Presence of:-
Ms Kendi        -    Court Assistant
Makura for 2nd Defendant in 686/2014
Karweru for Plaintiff in 686/2014 and for Defendants E002
Njogu for 1st Defendant in 686/2014
Mrs. Mwanzia for Plaintiff in E002/2023