RULING
1. This matter involves members of the Good News Church of Africa. It is about finances and positions (elections) in the church. From the record there are other matters before other courts (Machakos and Milimani) involving some of the same parties in different capacities, and some of the same issues.
2. The application for determination is dated 22/06/2023. It is brought under Order 51 of the Civil Procedure Rules, 2010, sections 18(1)(a) of the Civil Procedure Act (Cap 21) Laws of Kenya and enabling provisions of the law. It seeks the following orders;
a) That this honorable court be pleased to transfer the suit Machakos HCCC No. 15 of 2019-Muema Ndungi & Anor -vs- Bishop Raphael Kituva & 7 Others to the High Court of Kenya at Makueni for consolidation with this case and for hearing and final determination.
b) That the costs of this application be borne by the defendants/respondents.
3. The application is supported by the grounds on its face and the Supporting Affidavit of Rev. Denis Nyamai, Paul Mwaniki Nzunga and Patrick Musyimi Nzini sworn on the same day. They deposed that the learned Judge in this matter delivered a ruling on 31/01/2023 where he directed that this matter be consolidated with Machakos HCCC No. 15 of 2019-Muema Ndungi & Anor -vs- Bishop Raphael Kituva & 7 Others (herein after ‘the Machakos suit’). That some of the prayers in the Machakos suit are related to and/or are the same as the prayers in the present suit. A copy of the plaint exhibited as RDN 1.
4. Referring to paragraph 3 of annexure RDN1, they deponed that the defendants in the present suit are also some of the defendants in the Machakos suit. That there is a possibility that the parties in the two suits will call the same witnesses and produce the same documents/exhibits during the hearing since the parties concerned are members of the same church. That the issues for determination in both suits concern the day to day running, affairs and management of Good News Church Africa. That no prejudice will be suffered by the defendants/respondents since they are parties in both matters and are also represented by the same law firm in both matters.
5. The respondents filed the following grounds of opposition;
a) That the application is unsustainable as it is defective.
b) That the plaintiff and defendant for both suits are different.
c) That the cause of action for both matters are different and the prayers are not the same.
d) That Machakos suit No. 15 of 2019 has a hearing date for 18th September 2023 therefore consolidation may not be viable.
e) That the application is frivolous and an abuse of the court process.
6. In rejoinder, the applicants swore a supplementary affidavit on 20/11/2023 and deponed that the respondents have not explained to this court how the application is unsustainable and defective. That the defendants in this matter are the 1st, 2nd and 3rd defendants in the Machakos suit. That the prayers in the two suits are more or less the same and are related. That the proposal for consolidation was made by the learned Judge in this matter in the ruling delivered on 31/01/2023.
7. They deponed that the said proposal for consolidation was made after the respondents made a preliminary objection to the main suit herein arguing that the subject matter in the Machakos suit was the same as the subject matter in this suit. That there is absolutely no good reason why the respondents are opposed to an application for transfer of the Machakos suit to this court for consolidating the present suit.
8. Directions were given that the application be canvassed by way of written submissions. Consequently, the parties complied and filed their respective submissions.
Applicants’ Submissions
9. The applicants submitted that the subject matter in this suit is similar or related to the prayers in the Machakos suit. That the prayers in this suit are similar or related to the prayers in the Machakos suit.
10. They submitted that the defendants in this suit are also some of the defendants in the Machakos suit and that there is a very high possibility that the parties herein will call the same witnesses in this suit and in the Machakos suit. That it is also clear from the record that the defendants in both suits are represented by the firm of Mumma & Kanjama Advocates.
11. They submitted that the two cases are pending hearing and determination before two different court stations and as such, consolidation cannot be done unless the Machakos suit is transferred to this court. That they have demonstrated that there is need and it is in the interests of justice to have the Machakos suit transferred to this court for consolidation and for hearing and determination. They prayed for costs of the application.
Respondents’ Submissions
12. The respondents submitted that the application is unmerited and should be dismissed with costs for the reason that it is defective and will only delay the delivery of justice in the matter. They acknowledged the power of this Court to transfer matters to other courts within the Republic of Kenya but contended that the transfer sought herein is not tenable because, firstly, the provision of law relied on by the applicants does not provide for transfer of a suit to another High Court Registry.
13. Relying on section 18 of the Civil Procedure Act, they submitted that the High Court only has power to transfer a suit to a court subordinate to it and not to a superior court or court of equal status. They relied on the case of GKK -vs- ANK & Anor (2021) eKLR where the court held;
“Section 18 empowers the High Court to withdraw and transfer a case instituted in a subordinate court on application of any of the parties or on its own motion.”
14. Secondly, they deponed that the powers under section 3A of the Civil Procedure Act ought to be exercised judiciously and the applicants have a duty to provide the court with compelling reasons for the transfer to be granted. They relied on Rapid Kate Services Ltd -vs- Freight Forwarders Kenya Ltd & 2 Others [2005] 1KLR 292 as cited with approval in the case of Kenya Power & Lighting Company -vs-Njumbi Residents Association & Anor [2015] eKLR where the court held;
“When making or refusing an order for transfer, the court will have regard to the nature and character of the proceedings and the nature of the relief or remedy sought, the interest of the litigants and most important the administration of justice...”
15. They also relied on re Petition for Orders of Custody, Management and Guardianship Relating to JO (patient) [2020] eKLR where the court stated;
“It follows therefore that the High Court reserves residual powers to direct transmission of a file from one High Court registry to another where the situation so dictates in the interests of justice. Such circumstances would include consideration of the location of the subject matter, number of potential witnesses and their residences where the cause of action arose and likelihood of parties suffering unnecessary hardship or expense.”
16. They submitted that the applicants based their application on speculations as to what might happen if the matter is transferred to this court. That the phrase ‘compelling reasons’ entails more than giving unsubstantiated reasons as the applicants have done. That such reasons arouse strong, irresistible curiosity or admiration. They contended that the application beats logic and can only be interpreted as a calculated move to delay the matter. That the matters continue to cause anxiety and mental anguish to them as they have tainted their reputation and it is in the interests of justice that they be determined conclusively.
Analysis & Determination
The issue for determination is whether the application for transfer of the Machakos case to this court is merited
17. The law applicable is in Order 11 Rule3 (I) (h) of the Civil Procedure Rules which states as follows: -
3. (1) 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—
(a)-------
(h) Consider consolidation of suits;
18. In Law Society of Kenya -vs- Centre for Human Rights & Democracy & 12 Others [2014] eKLR the Supreme Court enunciated the general principles to be applied when considering consolidation of matters 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. "
19. The circumstances which can lead to consolidation were stated in Nyati Security Guards & Services Ltd -vs- Municipal Council of Mombasa [2004] eKLR, thus:
"Consolidation is a process by which two or more suits or matters are by order of court combined or united and treated as one suit or matter. The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where: - 1. some common question of law or fact arises in both or all of them; or 2. the rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or 3. for some other reason it is desirable to make an order for consolidating them.”
20. The principles that can be distilled from case law are therefore;
a) That the suits have common questions of law or fact.
b) The reliefs claimed in the suits are in respect of or arise out of the same transaction or a series of transactions.
c) Any other sufficient reason.
21. I have carefully considered each the plaints in both suits and noted the following;
- Although the plaintiffs in both suits are different, they have all described themselves as members of the Good News Church of Africa (GNCA).
- The 1st, 2nd and 3rd defendants in both suits are similar and they are the Bishop, the Secretary General and Treasurer of the church. The rest of the defendants in the Machakos suit are described as the Trustees of the church and from the exhibited Constitution, ‘they are charged with the responsibility of overseeing the usage and management of a church property.’ The common thing about all the defendants therefore is that they are in the management council of the church.
- The complaint by the plaintiffs in both suits is on the failure by the defendants to furnish them with audited financial reports of the church. Additionally, the plaintiffs in this suit allege that instead of furnishing the reports, the defendants called for elections in order to divert attention.
- In both suits, there is reference to the church Constitution and it is alleged that the defendants are in breach of its provisions.
- In both suits, there is a prayer for audited financial reports and a prayer of injunction against the defendants to restrain them from certain acts. Basically, the prayers are aimed at correcting the alleged prevailing situation in the church.
22. From the foregoing, it is clear that the suits have common questions of law and fact and the reliefs claimed arise from similar circumstances.
23. Further, the firm of Muma & Kanjama Advocates has not denied that it is also representing the defendants in the Machakos suit. It is also noteworthy that even the defendants have acknowledged the similarity of the subject matters as can be seen from the Preliminary Objection which they filed to oppose this suit. Ground one thereof was that; ‘the plaint and application fall short of the doctrine of sub judice as there are suits on the same subject matter pending determination in Machakos HCCC No. 15 of 2019, Milimani Civil Suit No E3984 of 2020 and Nairobi HCCA No. E136 of 2021.’
24. In determining the said P.O, this court (Dulu J) stated that;
“Coming now to the elements of sub-judice raised in the objection, in my view, this case is not incompetent as, the fact that several other related cases are pending does not make any of those cases incompetent. Such situation can only be reason for consolidation or asking for stay of one or the other of those cases, pending hearing of one or the other of those cases.” (emphasis added)
25. It is noteworthy that the court did not direct that the matters be consolidated, the court merely called the parties to reason, to consider consolidation, or proceeding with one of the matters first. My view is that that statement did not need the parties to file another application. Parties were called upon to take stock of their various matters and to decide whether or not to consolidate or proceed to hearing.
26. Definitely , Consolidation would save precious judicial time, avoid multiplicity of suits and prevent a situation where two different outcomes could result. In the LSK case (supra), the Supreme Court stated;
“...in the circumstances, would it serve the interests of justice to consolidate the appeals in which the parties are the same, and the central issue is the same even if worded differently? The irresistible conclusion is in the affirmative…”
27. The defendants have argued that this court has no power to transfer a case from one high court to another because section 18 of the Civil Procedure Act does not provide for such a scenario. But there is the contrary view which I agree with in the reasoning of Emukule, J in Rapid Kate Services Limited (supra) where he expressed himself thus:
“When making or refusing an order for transfer the Court will have regard to the nature and character of the proceedings the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice. It is a discretionary power of the Court under section 3A of the Civil Procedure Act…Although there is only one High Court in Kenya which sits in different areas as directed by the Chief Justice (as opposed to subordinate courts established under various laws) it is not forbidden for a Kenyan High Court sitting in one location to order a transmission or allocation of a case file before him to another judge sitting in another location. It must be a matter of discretion for the judge and it must be for compelling reasons which would be for the purposes of ensuring justice and this is all within the inherent power of the Court under section 3A of the Civil Procedure Act…Whereas there is no express provision in the Civil Procedure Act Cap 21 for transfer of cases from one High Court to another, it does not mean that in a proper case the Court cannot transfer a case before it to another registry of the High Court. The fact that there is no provision on the matter cannot prevent the High Court from deciding it, if by doing so, it will be able to deliver justice. In doing so the Court will employ its unlimited and inherent jurisdiction…There is no such express provision for intra-High Court transfer of cases from one civil registry to another. In addition to the Court’s inherent power under section 3A to make orders to meet the ends of justice, there are provisions of order 46 rule 5(2) which expressly empower the High Court to order that a case be tried in a particular place to be appointed by the Court. The language in this rule is deliberately guarded that the suit be “tried” not transferred” in a particular place appointed by the Court…This power is clearly unlike that under section 18 of the Civil Procedure Act where the High Court may order the transfer of a case to a subordinate court or withdraw the case, try and dispose it itself or order on how such suit shall be disposed. The power of the High Court under order 46 rule 5(2) is to order for the place where the suit shall be tried and for that purpose achieve the horizontal movement of intra High Court cases from one registry to another. In this way, the High Court ensures that proceedings wherever began or whatever forum the plaintiff has initially chosen should be dealt with or heard or determined by the Court most appropriate or suitable for those proceedings. When making or refusing an order of transfer the Court will have regard to the motive and the character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice. It is a discretionary power, which will be exercised having regard to all the circumstances of the case”.
28. Evidently, from the foregoing , the order that commends itself to me is that that the two suits should be consolidated and heard together in the interests of justice.
29. The only hitch is, due to the effluxion of time, this court does not know the current status of the Machakos case Machakos HCCC No. 15 of 2019-Muema Ndungi & Anor -vs- Bishop Raphael Kituva & 7 Others
30. The Machakos case was filed first, and when the Plaintiffs herein filed this suit here they were aware of the suit in Machakos. Any consolidation order would be for this matter to be consolidated with the Machakos case in Machakos, but that would be subject to the confirmation of the status of the suit in Machakos.
31. The reasonable order would be an order of transfer of this suit to High Court of Kenya sitting at Machakos.
32. In the alternative, the parties are encouraged to pursue AJS as provided for in the Constitution at Article 159 (2) (c). This will be the pursuit of a solution to the real issue that has contributed to the multiplicity of suits.
33. Final orders:
(1.) Subject to the current position of Machakos HCCC No. 15 of 2019-Muema Ndungi & Anor -vs- Bishop Raphael Kituva & 7 Others, this matter be transferred to Machakos for consolidation.
(2.) In the alternative parties are directed to AJS (Mediation) for purposes of settling the matters before court.
3. With respect to (1) above mention on 15th July 2024 at 8:30 am.
4. There are no orders as to costs.
Dated, signed and delivered on CTS this 5th July 2024
Mumbua T Matheka
Judge
Applicants’ Advocates
Kilonzo Muli & Associates.
Respondents’ Advocates
Muma & Kanjama Advocates