Introduction
1. Before court is a Notice of Motion dated 16th January 2026 filed by the 1st defendant/applicant seeking the following orders;
a) Mumias Chief Magistrate’s Court ELC Case No. 11 of 2025 be transferred from the Chief Magistrate’s court at Mumias to the Environment and Land Court at Kakamega for hearing and determination.
b) Upon being transferred to this court, Mumias Chief Magistrates court ELC Case No. 11 of 2025 be consolidated with this suit.
c) Costs of this application be provided for;-
2. The application is premised on the grounds on its face and the supporting affidavit of the applicant sworn on 6th January 2026. The applicant’s case is that he filed Mumias Chief Magistrates Court ELC Case No. 11 of 2025 on 28th January 2025 seeking among other orders for eviction of the plaintiff from Parcel No. S.Wanga/Bungasi/1495 which is a subdivision of parcel No. S.Wanga/Bungasi/307, which is the suit property herein. That his suit in Mumias is still pending. That as the Mumias suit is a competing claim against the claim herein, it ought to be transferred to this court and consolidated with this matter. He attached a copy of the plaint in regard to the suit at Mumias.
3. The application was opposed. The plaintiff/respondent filed grounds of opposition dated 10th May 2026 He stated that there is no basis for the application. That the issues raised by the applicant have been raised in the replying affidavit, hence there is no need for duplication of cases. That the most prudent decision is to withdraw the suit at Mumias. That the application seeks to delay this matter. That if the application is allowed, this suit should be heard expeditiously.
Analysis and determination.
4. The court has carefully considered the application, and he grounds of opposition. The only issue that arise for determination is whether the applicant deserves the orders sought.
5. This court has the jurisdiction to transfer a suit from the Magistrates court to this court for hearing and determination, as provided for in section 18 (1) (b) ( i ) of the Civil Procedure Act.
6. Therefore, this court may, on its own motion or on application by any of the parties, may transfer a suit from the lower court to this court and hear the suit.
7. In the instant case, the applicant argued that his suit in Mumias seeks to evict the plaintiff herein from parcel No. 1495, a subdivision of parcel 307, which is the subject matter herein. The respondent/plaintiff has countered this position by arguing that the applicant has exhaustively raised his claim in the instant case.
8. Since the subject mater in this case and in Mumias CMC ELC CASE NO. 11 OF 2025 is the same, and that case having been filed earlier, for proper administration of justice and to avoid contradictory decisions, it is in the interests of justice that the lower court file is transferred to this court for determination and hence the prayer for transfer is merited and therefore allowed.
9. Regarding the prayer for consolidation, consolidation is a case management tool aimed at achieving the overriding objective of the Civil Procedure Act, which is to facilitate the just, efficient and expeditious resolution of disputes at an affordable cost to the parties. The court has power to consolidate suits pending before it where the same are in respect of one subject matter.
10. In the case of Law Society of Kenya v The Centre for Human Rights and Democracy, Supreme Court of Kenya, Petition No. 14 of 2013, 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 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 intended to occasion any disadvantage towards the party that opposes it.”
11. Similarly, in Joseph Okoyo v Edwin Dickson Wasuna (2014) e KLR the court cited with approval the case of Korean United Church of Kenya & 3 Others v Seng Ha Sang (2014) e KLR, where it was stated as follows;
“Consolidation of suits is done for the purpose of achieving the overriding objective of the Civil Procedure Act, that is for the expeditious disposal of civil disputes. The main purpose of consolidation of suit is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action.”
12. In the instant matter, the matter sought to be consolidated with this suit, is yet to be brought to this court, notwithstanding the fact that the court has now ordered the transfer of the same from the lower court to this court. This court can only consolidate suits that are already before it. The court cannot conduct case management in regard to a file that is not before it. It is therefore, my finding that the prayer for consolidation at this stage is premature and the same is hereby declined.
13. In the premises, the application dated 16th January 2026 partially succeeds. Consequently, Mumias CMC ELC CASE NO. 11 OF 2025 is hereby transferred from Mumias Chief Magistrates Court to this court for hearing and determination. I make no order as to costs.
14. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF MAY 2026
In the presence of
Mr. Maloba for the applicant
Plaintiff/respondent in person
Court Assistant: Delphine