1. This Ruling determines the Notice of Motion application dated 29th January 2025 in which the Appellant/Applicant seeks the following two substantive orders:
i. That this appeal be referred to Justice Ado J. for consideration and issuance of judgment.
ii. That in the alternative, this Court do issue the Judgment.
2. The application is supported by the affidavit sworn on 29th January 2025 by Julia Munyua, the Appellant/Applicant’s Advocate on record. The application is based on grounds that:-
a) On 23rd May, 2024, the appeal was placed before Justice Muchemi for directions, and the judge consolidated the appeal with HCCA No. 237 of 2023.
b) Justice Muchemi also directed that the two appeals be placed before the RRI judges for disposal.
c) On 6th of June, 2024, the appeal was placed before Justice Ado, who reserved a judgment for 19th July, 2024.
d) On the 19th of July, 2024, Justice Ado delivered the judgment in HCCA 237 of 2023, but on inquiry about this appeal, he seemed not to be aware of the file.
e) That attempts to pursue the file at the Milimani High Court were futile.
f) That on 3rd December, 2024, it was confirmed by this court's registry that the file was returned to Thika without a judgment.
g) That the appellant was then directed to seek orders for placement of the file before the RRI Judge, thus this application.
3. The instant application was first placed before Muchemi J., who directed that the same be placed before me for consideration. The learned judge on 30th January 2025 directed that this matter, having been consolidated to the Thika HCCA No. 374 of 2023 in which a judgment was rendered by this court on 19th July 2024, it was only reasonable that the file be placed before me for consideration of the present application.
4. I have carefully considered the application herein and the proceedings, both in the Thika HCCA 237 of 2023 and in the present file. I note that on 23rd March 2024, the High Court at Thika (Muchemi J.) directed that this matter (Thika HCCA No. 181 of 2023) be consolidated with the Thika HCCA No. 237 of 2023 and that the files be heard on 6th June 2024.
5. I have also noted that when the Thika HCCA No. 237 of 2023 was placed before this Court on 6th June 2027, Ms. Munyua, Counsel for the Appellant/Applicant herein, appeared and informed this court that the two matters were a series, and had been consolidated. Counsel for the Respondent, however, was not present in court on that day. A Judgment date of 19th July 2024 was reserved.
6. On 19th July 2024, I delivered my Judgment in the Thika HCCA No. 237 of 2023. However, no mention was made regarding the Thika HCCA 181 in that Judgment. This appears to have been an error on the part of the Court.
7. With the above background, I now turn to consider the instant application with a view to making a determination on the appropriate orders to issue in the circumstances.
8. A perusal of the record of appeal in both matters reveals that while the Appellant in Thika HCCA 181 of 2023 appealed against the trial court’s failure to award both costs of the suit and damages for lost years to the deceased estate, the Appellant in the Thika HCCA 237 OF 2023 only concerned itself with the trial court’s failure to award costs.
9. In view of the additional prayer/ground of appeal (award of damages for lost years to the deceased estate) in the Thika HCCA 181 of 2023, I do not think the Judgment in Thika HCCA 237 OF 2023 would fully address the issues raised on the instant appeal.
10. In the circumstances, the proper route would be to write a separate judgment for this matter (Thika HCCA 181 of 2023) since this will enable the Court to interrogate the additional prayer/ground of appeal – the trial court’s failure to award damages for lost years to the deceased estate. However, with the order of 23rd March 2024 consolidating the two matters, this option is not currently legally tenable until and unless the said order of 23rd March 2024 is reviewed or otherwise varied.
11. While this court fully appreciates that consolidation as provided for under Section 80 of the Civil Procedure Act (and the rules made thereunder) is intended to save costs, time, and effort, and to make the conduct of several actions more convenient by treating them as one action (see Maraga J. In “Municipal Council of Mombasa v Municipal Council of Mombasa [2004] eKLR), It is equally critical to note that where consolidation may not be appropriate where the remedies sought are not the same.
12. In County Council of Nakuru v Simon Ole Kiminta & 3 others [2007] eKLR, the court held that:-
"if the two suits are consolidated, it is obvious that it is not convenient for the determination of issues as one suit challenges the ownership of the property while the other suit challenges the exercise of the power of the transfer. The suits are not also between the same parties and consolidation would confuse the issues and prolong the resolution of the matters in dispute." [emphasis added].
13. In the premises and in view of the fact that the two matters seek different remedies, the Appellant is hereby advised, if he considers it appropriate, to move the court appropriately for the purposes of having the said consolidation orders of 23rd March 2024 reviewed or otherwise varied.
14. The Court’s view if further fortified by the fact that the instant application is not for review of the Court’s Judgment in the Thika HCCA 237 OF 2023 so as to incorporate the instant appeal.
15. Accordingly, the Appellant’s Notice of Motion application dated 20th January 2025 is hereby declined.
16. On costs, I direct that each party bears their own costs.
17. I direct that the matter be mentioned before the Deputy Registrar, Thika High Court, for further direction on 08/04/2025.
18. It is hereby ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 3RD DAY OF APRIL 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.
N/A………………...For the Appellant.
N/A………………...For the Respondent.