This ruling is in respect of the Notice of Motion application dated 23rd March, 2025, brought pursuant to the provisions of Order 38 Rule 2 and Order 51 of the Civil Procedure Rules and sections 1A, 1B, and 3A of the Civil Procedure Act. The application seeks orders that the honourable court issue an order directing case No.E150 of 2021 Booker Ineah Oluoch -vs- Moses Libamba to be consolidated with this suit, that the honourable court do issue further directions as to the hearing of the two suits, and that costs be provided for.
The grounds upon which the application is brought are that ELC Case No.30 of 2022 (OS) Moses Libanba -vs- Booker Ineah Oluoch and Case No.E150 of 2021 Booker Ineah -vs- Moses Libamba were originally separated but were consolidated. That following the decision of the Court of Appeal, the lower courts lack jurisdiction to entertain matters of adverse possession, which was laid out in the Originating Summons. That the consolidation will avoid inconsistencies in the outcome/judgement, and that the consolidation will save the court’s time.
The application was supported by the averments in the Supporting Affidavit sworn by the Applicant on 23rd March, 2026.
The application was opposed vide the averments in the Replying Affidavit sworn by the Respondent on 28th April, 2026. The case of the Respondent is that the suit was filed on the eve of the hearing of the case No. E150 of 2021. That the suits sought to be consolidated are not pending before the same court and that proceedings have already been undertaken in the subordinate court matter, case No.E150 of 2021, and is now pending defence hearing on 12th May, 2025. That there is no common question of law, fact, or similar relief to be considered in the two suits, and there is no likelihood of conflicting decision or judgment. That the relief sought in the application has been overtaken by events.
The application was heard by way of written submissions. It was submitted on behalf of the Applicant vide the written submissions dated 6th May, 2026, filed by the firm of Wasuna & Company Advocates that this court has inherent powers to allow for the consolidation of the suits. Counsel cited section 3A of the Civil Procedure Act to support the submissions. That in consolidating suits, the court is guided by the following:
(a) Do the same question of law or fact arise in both cases?
(b) Do the rights or relief claimed in the two or more cases arise out of the same transaction or a series of transactions?
(c) Will any party be disadvantaged or prejudiced, or will consolidation confer undue advantage to the other party?
Counsel relief on the case of Korean United Church of Kenya & 3 Others -vs- Seng Ha Sang (2014)eKLR, where it was held that consolidation of suit is done for the purposes of achieving the overriding objective of the Civil Procedure Act.
Counsel submitted further that the matter before the Magistrate’s court is yet to be concluded.
Counsel also relied on the case of Law Society of Kenya -vs- Centre of Human Rights and Democracy & 12 Others [2014] KESC 29 (KLR), where it was held inter alia that the alternative to consolidate would result in undesirable delays in concluding the matter.
Counsel submitted that both suits have the same underlying and central issue, which is ownership of the land.
That it would be an abuse of the court's time to have two courts pronounce themselves on a single issue that could have been determined by one court, and that it would be an embarrassing situation if the courts reached conflicting conclusions. Counsel urged the court to allow the application.
On behalf of the Respondent written submissions dated 8th May, 2026 were filed by R.P. Onyango & Company Advocates. Relying on the cases of Nyati Security Guards & Services Ltd -vs- Municipal Council of Mombasa (Civil Suit 992 of 1994 and the case of Development Bank of Kenya Limited -vs- INC Supplies Limited (Commercial Case E099 OF 2024), Counsel submitted that in order for an order of consolidation of cases to issue;
a) the cases sought to be consolidated must be suits pending before the same court;
b) a common question of law or fact should arise in both cases;
c) the rights or relief claimed should be in respect of the same transactions.
Counsel submitted that the fact that one suit is pending in the subordinate court while the other is pending at the Land Court (ELC) disqualifies the Applicant's request for consolidation.
That should the court allow the application by the Applicant, then it will set a very dangerous precedent where litigants in the future may seek to consolidate cases pending before different courts.
Counsel also submitted that there is no common issue of law or fact that arises between the two cases, as the reliefs sought in both suits are completely at variance, despite the fact that the two cases are between the same parties.
Counsel submitted that the Applicant had more than ample opportunity after the Court of Appeal decision on 11th October, 2024, in Sugawara -vs- Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso, alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Lepaso, and in her own capacity & 3 Others (Civil Appeal E141 of 2022, (herein after referred to as Sugawara case) to institute a suit claiming adverse possession as early as 11th October, 2024.
That the Applicant has no plausible explanation as to why he had to wait till the 23rd March, 2026 to institute the suit with the aim of seeking a stay of proceedings and consolidation of his suit with the case in the subordinate court if not for mischievous purposes.
That the Applicant grossly flouted the principles for the overriding objective and failed to facilitate the expeditious disposal of the matter, and that the court must shy away from assisting such a litigant.
Counsel urged the court to dismiss the application with costs and allow the Respondent and Applicant to continue with the prosecution of the suit before the subordinate court, which suit is partly heard, with the Applicant herein as the Defendant to tender his defence on the 12th May, 2026.
I have considered the application and all accompanying documents. I have also considered the Replying Affidavit and annexures thereto and the written submissions filed by Counsel for both parties.
Under Order 11 Rule 3 Civil Procedure Rules, consolidation of suits is one of those matters that should be considered during case conference. However, the fact that consolidation of suits was not considered at the case conference stage does not bar the court from entertaining an application for consolidation made thereafter. The court has inherent power to do so.
The two suits sought to be consolidated herein were filed at different times and in two different courts. The subject matter, however, and the parties are the same. The subject matter is a parcel of land known as KISUMU/KANYADWERA/680, of which the Respondent claims ownership in case No. E150 of 2021 and seeks that the Applicant be declared a trespasser on the land and be evicted therefrom. Of the same parcel of land, the Applicant claims to have become the owner by adverse possession. While the suit before the Magistrates’ Court is now partly heard, the suit herein is yet to be heard. The Respondent avers that he will suffer loss and prejudice if the matters were to be consolidated and start all over again.
Although the Applicant has not specifically prayed for transfer of the suit in the Magistrate’s court to this court, he has prayed for consolidation of the suits and an order that the court makes further directions as to the hearing of the two suits. As submitted on behalf of the Respondent, consolidation can only happen if the suits to be consolidated are pending before the same court. Relying on the provisions of Article 159 and to do substantive justice, the court shall make an order for transfer of the case in the Magistrate’s court to this court to enable consolidation.
The issue of adverse possession was raised in case No. E150 of 2021. The Magistrates' Court has no jurisdiction in claims of adverse possession pursuant to the provisions of section 38 of the Limitation of Actions Act and the Court of Appeal decision in the Sugawara case (supra). So that to deny the transfer and consolidation will be to deny the party relying on the doctrine of adverse possession a chance to be heard on the same as a defence or counterclaim to the claim based on trespass.
I agree with the Respondent’s submission that the applicant has had ample time to file the suit based on adverse possession and to seek consolidation. The record shows that it was not until the eve of the hearing of the suit in the lower court that the applicant moved the court for consolidation, and that by the time the application was brought to the attention of the court, the prayer for an interim stay of proceedings had been overtaken by time/events. Nonetheless, the Respondent can be compensated by way of costs as the lower court matter proceeded to hearing.
The overriding objective of the court is to achieve the just, expeditious, and proportionate resolution of cases. If no consolidation happens, two courts will be hearing the same issues with possible different results. This will be an undesirable outcome.
I find that the application has merit and hereby allow it as follows:
i. Kisumu MCEL Case No.E150 of 2021 is transferred to this court for consolidation with this case for hearing and disposal.
ii. Thrown away costs of Kshs. 50,000/- is awarded to the Respondent to be paid within 30 days hereof, failing which the order for transfer and consolidation herein granted shall lapse.
iii. This matter shall be mentioned before this court on 17th June, 2026, to confirm transfer, for consolidation, and directions on disposal.
iv. The proceedings scheduled for 12th June 2026 before the Magistrate’s court are hereby stayed.
Orders accordingly.
Ruling dated and signed at Kisumu, read this 7th day of May, 2026, virtually, through Microsoft Teams online application.
E. ASATI,
JUDGE.
In the presence of
Atika.. Court Assistant
Saro for the Applicant
Onyango for the Respondent.
| ELC (OS) E020/2026 RULING Page 2 |