By a Notice of Motion application dated 14th day of April, 2025 the Defendant/ Applicant pursuant to Article 47 and 50 of the Constitution of Kenya 2010, Section IA, 1B, 3, 3A, 18 of the Civil Procedure Act, Order 11 Rule 3 (1) (h) and (i); Order 51 Rule 1 of The Civil Procedure Rule 2010) sought for ORDERS:-
THAT while pending the Hearing and determination of this Application inter partes, this Court be pleased to stay further proceedings in the following suits:
a. Kehancha MCCC No. E016 of 2024: Wycliffe Bob Ogeto vs Sukari Industries Co. Ltd
b. Kehancha MCCC No. E017 of 2024: Wycliffe Bob Ogeto vs Sukari Industries Co. Ltd
c. Kehancha MCCC No. E020 of 2024: Wycliffe Bob Ogeto vs Sukari Industries co. Ltd
d. Kehancha Mccc No. E024 of 2024: Wycliffe Bob Ogeto vs Sukari Industries Co. Ltd
e. Kehancha MCCC No. E028 of 2024: Wycliffe Bob Ogeto vs Sukari Industries co. Ltd
f. Kehancha MCCC No. E036 of 2024: Wycliffe Bob Ogeto vs Sukari Industries Co. Ltd; and
g. Kehancha MCCC No. E037 of 2024: Wycliffe Bob Ogeto vs Sukari Industries co. Ltd
THAT this Court be pleased to Order the transfer and subsequent Consolidation of the aforementioned suits Kehancha MCCC Nos. E016, E017, E020, E024, E028, E036, E037 all of 2024 and Migori HCCC No. E001 of 2024.
THAT the costs of this Application be borne by the Respondent.
The application was based on the annexed affidavit of Stephen Omondi Odero and on the following grounds:
a. The Plaintiff filed this suit before this honorable Court via plaint dated 5th March 2024 Wycliffe Bob Ogeto v Sukari Industries Ltd, seeking inter alia, an order for compensation for Breach of Contract arising from contract number 100686.
b. The plaintiff thereafter instituted 7 other suits against the defendant before Kehancha Law Courts, being MCCC Nos. E016, E017, E020, E024, E028, E036, E037 all of 2024, equally seeking compensation for breach of contract, which essentially arises out of the same transaction, yet after transferring investments from contract no. 100868 to other fields, has since managed to manipulate and or prey on the innocence of the judicial system, and instituted other suits, seeking similar prayers, before Kehancha Law Courts.
c. The Court is currently under April Recess which terminated on 22nd April 2025
d. That Unless this Application is heard within the recess period, nothing stops the plaintiff from proceeding with the prosecution of the matters before Kehancha Law Courts separately, to the risk of the subordinate courts pronouncing themselves and issuing conflicting decisions to this honorable courts.
e. That no prejudice whatsoever shall be occasioned to the Respondent should the instant application be allowed as prayed.
f. This Application has been brought without any unreasonable delay.
g. It is therefore in the wider Interest of Justice and fairness that the Application herein be urgently admitted for hearing and determination.
STEPHEN ODERA the Human Resource Manager of the Applicant averred that the Plaintiff filed this suit before Migori High Court via plaint dated 26th March 2024 Wycliffe Bob Ogeto v Sukari Industries Ltd arising from contract number 100686 seeking compensation for Breach of Contract.
THAT the plaintiff has instituted 8 suits against the defendant in multiple courts seeking compensation for breach of contract being Migori HCC EOOI of 2024 and Kehancha E016, E017, E020, E024, E028, E036, E037 all of 2024 which suits arise out the same financial transactions as Migori HCC EOOI of 2024 and the parties are the same as per annexture marked SO - 1 a Transfer of Investment Report for between 8 March 2010 and 8 March 2025) and SO -2 are copies of Summons to Enter Appearance in the above matters) respectively.
THAT Migori HCC EOOI of 2024 arises out of contract number 100686 where the plaintiff had leased the farm in question and it was erroneously surveyed by the field supervisor as being 16.93Ha. which included roads and some parts of the land that were not arable has it had murram.
THAT the field supervisor engaged the aid of a ploughing contractor Allan Ominde who alleged that he had plough the entire 16.93ha however the farmer noted that the said field was not ploughed and raised the concern with the defendant.
THAT as a result, the land was resurveyed and 2 additional contracts were created being contract No. 126167 for 7.41Ha and Contract No. 100667.
THAT the 3rd portion was left under the current contract in Migori EOOI of 2024 which supplied 127 tons of burnt cane.
THAT, Kehancha MCCC No. E016 of 2021 arises out of contract number 126167 which was resurveyed out of Migori E001/2024 of contract number 100686.
THAT he plaintiff further claimed damages for breach of contract arising out of contract number 109027 whose investments were transferred to Contract No. 126167 and Contract No. 100667.
THAT in August 2021 the farmer transferred investments from contract number 100667 of field number 18201000896 to contract number 100657 of field number 18201000261. (marked as SO -3 is a copy of Filed Transfer of Investment).
THAT on 6th September 2021 the farmer transferred investments inform of seed cane processing, seed cane transportation, land preparation from contract number 109027 and field number 18201000289 to 1006667 and filed number 18201000296. (Annexed herewith and marked SO -4 is a copy of Filed Transfer of Investment).
THAT on 20th December, 2021 the farmer transferred investments being seed cane transportation, seed cane processing, land preparation from contract number 109027 of field number 18201000289. (Annexed herewith and marked SO - 4 is a copy of Filed Transfer of Investment).
THAT on 20th December 2021 the farmer transferred farm investments being land preparation activity from contract number 1 17226 of field number 1820100432 to contract number 126167 of field number 18201000459. (Annexed herewith and marked SO -5 is a copy of Filed Transfer of Investment).
THAT on various dates between 2021 to 2022 the farmer transferred investments from field number 1820100261 to field number 18300102059, 16500203389,18300102059 and 18200701540.
THAT In addition to the above the farmer further transferred 18 investments from field number 18201000289 to field number 18201000459, transferred investments from field number 18201000296 to field number 18201000261 and field number 18201000432 to field 18201000459.
THAT the Plaintiff has filed the above suits before Kehancha Law Court in a bid to defraud the defendant whilst knowing that they all arise from the same transactions.
THAT the plaintiff having transferred investments from one field to another knowingly separated these claims and filed a suit before this court and before Kehancha Law Courts.
THAT by the filing of multiple suits against the defendant, the Plaintiff is abusing the court process and misled the court in his pleadings by notifying the court in the plaint that "he had not filed any other suit over this cause of action"
It was averred that the defendant stands to suffer irreparable loss if the plaintiff is allowed to proceed and prosecute the suits before Migori Law Court and Kehancha Law Courts Separately as all the suits arise from the same financial transaction and can be consolidated and heard together.
THAT It is in the interest of justice that the application is allowed as drawn as no prejudice whatsoever shall be occasioned to the Respondent should the instant application be allowed as prayed.
THAT this Application has been brought without any unreasonable delay.
In opposition to the application the Respondent filed grounds of opposition to the effect that the Application is frivolous and an abuse of the court process.
That each of the cases starting with Migori High Court Civil Case No. E001 of 2024 and all those cases listed on paragraph 2 of the notice of motion are distinct and based on different contracts.
That the causes of action in each of the suits listed on the notice of motion are different and distinct.
That the cases as filed cannot be consolidated as they are based on distinct contracts.
That no application for stay of proceedings has been made in the Kehancha court where the cases are filed so as to give the said court an opportunity to decide the issue before an appeal can be lodged at the High court.
That the provisions of the law listed as a basis for the application do not donate any power to the court to give a stay of proceedings in the subordinate court.
That stay of proceedings and consolidation cannot be granted in the Circumstances of the cases.
The application was canvassed by way of written submissions. The Applicant’s submissions are dated, 22nd September, 25 raised the following issue for determination:
Whether Migori HCC E001 of 2024 and Kehancha E016, E017, E020, E024, E028, E036, E037 all of 2024 between the parties herein should be consolidated, it was submitted that the consolidation of the above suits would help prevent inconsistencies in the court’s determination of the subject of breach of contract between the parties and save judicial time and resources.
While referring to The Black's Law Dictionary, 7th ed. definition of consolidation as:
“..to combine, through court order, two or more actions involving the same parties or issues into a single action ending in a single judgment, or sometimes, separate judgments…”
The Applicant contended that the rationale of the consolidation of suits was discussed in the Law Society of Kenya v. Centre for Human Rights & Democracy & 12 others [2014] eKLR, where the court stated that:
“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. In the matter at hand, this Court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues. In addition, the Court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed.”
That in addition to the above in the matter of Abdalla v. Hassan & 15 Others (Civil Suit No.210 of 2021) [2022] KEELC 13582 (KLR) (5 October 2022) (Ruling), the court stated that:
“From these cases and precedents, the legal ratio and holdings are that, the essence of consolidation essentially are; (a)to facilitate the efficient and expeditious disposal of disputes and (b)to provide a framework for a fair and impartial dispensation of justice to the parties. At all costs and as a matter of principle, consolidation of cases should never be meant to confer any undue advantage upon the party nor should it be intended to occasion any disadvantage towards the party that opposes it.
The Applicant also relied on the case of Kamau v. Njoroge (Civil Appeal 6 of 2023) [2024] KEHC 1953 (KLR) (29 February 2024) (Ruling), in which the court cited with approval the case of Prem Lala Nahata & Another v. Chandi Prasad Sikaria [2007] 2 Supreme Court Cases 551, where the Indian Supreme Court stated that:
“It cannot be disputed that the Court has the power to consolidate suits in appropriate cases... The main purposes of consolidation are to save costs, time, and effort, and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises when there are two or more matters or causes pending in court, and it appears to the court that common questions of law or fact arise in both or all the suits, or that the rights or relief claimed in the suits are in respect of, or arise out of, the same transaction or series of transactions. Alternatively, consolidation may be ordered for some other reason if it is deemed desirable."
Further in the case of Kamau v. Njoroge (supra), the court stated as follows:
“It is therefore clear that the purpose of consolidation of suits is to save costs, time, expedite trials, eliminate duplicative trials involving the same parties, issues, and evidence, and to promote judicial economy. This process enhances the efficient and proper administration of justice and ensures the expeditious disposal of matters, so long as it is not prejudicial to any of the parties involved."
It was submitted that the suits subject to this application are suitable for consolidation as the Respondent filed the current suit via plaint dated 5th March 2024 arising from contract number 100686 seeking compensation for Breach of Contract. He thereafter proceeded to file the Kehancha MCCC E016, E017, E020, E024, E028, E036, E037 all of 2024 arising out of the same contract and financial transactions as Migori HCC E001 of 2024.
It was further submitted that the plaintiff filed the current suit before the High Court as result of contract number 100868 between the parties herein.
That in Migori HCC E001 of 2024 the plaintiff had leased the farm in question from a third party and it was erroneously surveyed by the field supervisor as being 16.93Ha. It was found that the surveyed 16.93Ha included roads and some parts of the land that were not arable has it had murram. The field supervisor engaged the aid of a ploughing contractor one Allan Ominde who alleged that he had plough the entire 16.93 however the farmer noted that the said field was not ploughed and raised the concern with the defendant/applicant.
That as a result, the land was resurveyed and 2 additional contracts were created being contract No. 126167 for 7.41Ha and Contract No. 100667, arising from the subdivision of contract number 100868 and the 16.93 ha piece of subject to contract number. The 3rd portion was left under the current contract which subject matter in Migori E001 of 2024 which supplied 127 tons of burnt cane.
That Kehancha E016 of 2021 arises out of contract number 126167 which was resurveyed out of Migori E001/2024 of contract number 100686.
The plaintiff has further claimed damages for breach of contract arising out of contract number 109027 whose investments were transferred to Contract No. 126167 and Contract No. 100667.
That in August 2021 the farmer transferred investments from contract number 100667 of field number 18201000896 to contract number 100657 of field number 18201000261.
On 6th September 2021 the farmer transferred investments inform of seed cane processing, seed cane transportation, land preparation from contract number 109027 and field number 18201000289 to 1006667 and filed number 18201000296. That on 20th December 2021 the farmer transferred investments being seed cane transportation, seed cane processing, land preparation from contract number 109027 of field number 18201000289.
The farmer further transferred farm investments being land preparation activity from contract number 117226 of field number 1820100432 to contract number 126167 of field number 18201000459.
That on various dates between 2021 to 2022 the farmer transferred investments from field number 1820100261 to field number 18300102059, 16500203389,18300102059 and 18200701540.
The farmer further transferred 18 investments from field number 18201000289 to field number 18201000459, transferred investments from field number 18201000296 to field number 18201000261 and field number 18201000432 to field 18201000459.
The Applicant said that the main purposes of consolidation are to save costs, time, and effort, and to make the conduct of several actions more convenient by treating them as one action. From the above, it is evident that the 8 suits before Migori High Court and Kehancha Magistrates courts have met all the elements and requirements for consolidation of suits.
The Applicant said that the jurisdiction to consolidate arises when there are two or more matters or causes pending in court, and it appears to the court that common questions of law or fact arise in both or all the suits, or that the rights or relief claimed in the suits are in respect of, or arise out of, the same transaction or series of transactions. The 8 suits filed by the Respondent herein all arise from the same transaction, they all seek special damages and compensation for breach of contract, they all arise from the same contract number and piece of land and they are between the same parties and as such they have met the elements and requirements for consolidation.
It was further submitted that consolidating the suits would allow the court to address the issue of breach of contract and the damages awardable more efficiently and thereby reduce the risk of conflicting judgments and ensure the efficient use of judicial time and resources, as the testimony of the witnesses would be presented once and applied to all the cases as the witnesses to be called are the same between the Applicant and Respondent. The consolidation of the suits would expedite the hearing and determination of the suits.
The Applicant further submitted that the consolidating of the suits based on the facts leading to the filing of the suits would prevent conflicting judgments and ensure the fair and efficient resolution of all claims in a single hearing. As such it was prayed that the Application be allowed as drawn.
In Law Society of Kenya v. Center for Human Rights and Democracy and 12 Others(supra), the Supreme Court observed that:
“The essence of consolidation of suits 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.”
Applicant’s counsel submitted that in applying the principles enunciated in the cases cited, the it has established that the consolidation of this suits would facilitate the efficient and expeditious disposal of the suits pursuant to Order 11 Rule 3 (1)(h) and (i) of the Civil Procedure Rules which provides 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—
(h) consider consolidation of suits;
(i)identify a test suit and order stay of other suits.”
The Applicant argued that no party would be put at a disadvantage by the consolidation.
In discharging this burden, the Applicant has demonstrated to the court that the suits raise a common questions of law and of fact, and that the rights and reliefs claimed in the suits arise out of, the same transaction or series of transactions and they have similar facts.
The court was urged to allow the application as it was not opposed and the Applicant had demonstrated that the suit before this court and the suits before Kehancha Magistrates court have met the elements of consolidation
The Respondent in his written submissions dated 21st October 2025 argued that Contrary to the submission that no response to the application dated 14th April 2025 had been filed he had filed grounds of opposition dated 3rd June 2025 on 3.6.25, and a copy was attached to this submissions for ease of reference to both the court and the Applicants counsels.
The Respondent submitted that Section 1 1 of the Civil Procedure Act is instructive and provides:
“Every suit shall be instituted in the court of the lowest grade competent to try it. Kehancha Civil Suits Nos. E016, E017, E020, E024, E028, E036 and E037 were instituted in strict conformity with the above provision of the law.”
It was further submitted that it is clear from the pleadings and the submission of the Applicant that it is only the names of the parties that are the same in all the cases.
It was submitted that in Migori HCC EOOI of 2024 the cause of action is based on a contract serial no. 10086, on a farm measuring 16.93(Ha) and the contract is dated the year 2010 as per the plaint attached to submissions.
That in Kehancha SPMs Court case No. 16 of 2024 the cause of action was based on a contract document serial no. 1 17226, on a farm measuring 1 .30(Ha), in the year 2019 as shown in copy of plaint attached to submissions.
That in Kehancha SPMCCC No. E17 of 2024 the cause of action was based on contract serial no. 160808, a farm measuring 6.68(Ha), for the year 2020 as shown in copy of plaint attached to the submissions.
That in Kehancha SPMCCC No. E020 of 2024 the cause of action was based on a contract document serial No. 10069, on a farm measuring 2.46(Ha), in the year 2020 as shown in copy of plaint attached to the submissions.
In Kehancha SPMCCC No. E024 of 2024 the cause of action was based on a contract document. Serial No. 109027, on a farm measuring 1.95(Ha) in the year 2019 as shown in a copy of plaint attached to the submissions.
In Kehancha SPMCCC No. E036 of 2024 the cause of action was based on a contract serial no. 100657, on a farm measuring 0.51 (Ha) in the year 2019 as per copy of plaint attached to these submissions.
In Kehancha SPMCCC No. E037 of 2024 the cause of action is based on a contract document serial no. 1 17263, on a farm measuring 8.46(Ha) in the year 2019 as per copy of plaint attached to the submissions.
It was submitted that the contract for each case is distinct, and independent and they cannot practically be consolidated so as to make it convenient for any one party before the court.
It was submitted that the evidence to be tendered by the parties has to be for each contract. That the breach being complained of before the court was not a consolidated breach. It was for each particular contract.
It was further submitted that it is more efficient and expeditious to try each individual case with its individual contract. That in all the authorities cited by the Applicant, the court's emphasis that the consolidation when being considered and ordered must not be prejudicial to the party opposing the consolidation.
The Respondent’s counsel also submitted that the consolidation will be prejudicial to the Respondent in the various suits at Kehancha for the reasons:
a) If the suits are consolidated with the High Court suit the Respondent and even the Applicant will obviously loose the advance of any appeal to the High Court and he might wish to file against any holding of the Kehancha court.
b) The Respondent or the Applicant will only have the court of appeal to appeal to which in itself is a prejudice.
Counsel submitted that there is no risk of conflicting judgments as indeed all the suits being sought to be consolidated with this case are in Kehancha court and the judgment of Kehancha court are applicable to the High Court. The court was urged to reject the application for consolidation.
ANALYSIS AND DETERMINATION
Having considered the application, the grounds and the rival submissions the main issue for determination is:
Whether Migori HCC No. E001 of 2024 and Kehancha CMCC Nos. E016, E017, E020, E024, E028, E036 and E037 of 2024 meet the legal threshold for transfer, stay and consolidation.
The power of the court to order consolidation of suits is discretionary and must be exercised judiciously, guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution.
The principles governing consolidation are well settled. Consolidation may be ordered where suits:
- Involve the same or substantially the same parties;
- Raise common questions of law or fact;
- Arise from the same transaction or series of transactions; and
- Where consolidation will not occasion prejudice to any party.
As confirmed by the Applicant while citing the holding in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others [2014] eKLR “The essence of consolidation of suits 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.”
While it is not disputed that the parties in all the suits are the same, similarity of parties alone is not sufficient to justify consolidation.
From the pleadings placed before the court, it is evident that each suit is anchored on a separate and distinct sugarcane farming contract, distinguishable by:
- A different contract serial number;
- A different acreage;
- A different year of contracting; and
- A different parcel or field number.
Each contract created its own rights and obligations, and the alleged breach in each suit relates to performance or non-performance under that specific contract. The causes of action are therefore distinct and independent.
The Applicant relied heavily on the transfer of farm investments and resurveying of land to argue that the contracts form part of the same transaction. However, such transfers, in the court’s view, are operational or administrative occurrences within the sugar industry and do not merge distinct contracts into a single transaction or cause of action. At best, they may constitute background facts or evidentiary material, but they do not satisfy the threshold of “the same transaction or series of transactions” for purposes of consolidation.
Although the suits raise similar legal questions relating to breach of contract and compensation, the factual inquiries necessary to resolve each claim—such as proof of acreage, maturity cycles, pricing, breach and quantum—are contract-specific. Consolidation in such circumstances risks conflation of evidence and may obscure the issues rather than promote clarity.
The Applicant further alleged abuse of the court process. However, the mere filing of separate suits founded on distinct contracts does not, without more, amount to abuse. Section 11 of the Civil Procedure Act requires suits to be instituted in courts of the lowest competent jurisdiction, and the Respondent’s decision to file separate claims in the subordinate court for separate contracts cannot be faulted on that basis alone.
The court must also consider whether consolidation would occasion prejudice. Consolidating subordinate court suits with a High Court matter would effectively deprive the parties of their statutory right of appeal from the magistrate’s court to the High Court, leaving the Court of Appeal as the first appellate forum. This is a substantive prejudice that cannot be ignored.
While consolidation is intended to save time and prevent conflicting decisions, efficiency must not override fairness. The possibility of different outcomes does not justify consolidation where the differences may legitimately arise from differing contractual terms and factual circumstances.
Having given the application due consideration, the court finds that:
1. The suits do not arise from the same transaction or series of transactions;
2. The causes of action are distinct and contract-specific;
3. Consolidation would occasion prejudice, particularly in relation to appellate rights; and
4. The Applicant has not satisfied the legal threshold for transfer, stay and consolidation.
Accordingly, the court makes the following orders:
1. The Notice of Motion dated 14th April 2025 praying for stay of proceedings, transfer and consolidation is hereby dismissed.
2. Costs of the application shall be borne by the Applicant.
3. Mention 24th March for further directions
4. Leave to appeal granted to the Applicant/ Defendant.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 29th DAY OF JANUARY, 2026.
THAT while pending the Hearing and determination of this Application inter partes, this Court be pleased to stay further proceedings in the following suits:
a. Kehancha MCCC No. E016 of 2024: Wycliffe Bob Ogeto vs Sukari Industries Co. Ltd
b. Kehancha MCCC No. E017 of 2024: Wycliffe Bob Ogeto vs Sukari Industries Co. Ltd
c. Kehancha MCCC No. E020 of 2024: Wycliffe Bob Ogeto vs Sukari Industries co. Ltd
d. Kehancha Mccc No. E024 of 2024: Wycliffe Bob Ogeto vs Sukari Industries Co. Ltd
e. Kehancha MCCC No. E028 of 2024: Wycliffe Bob Ogeto vs Sukari Industries co. Ltd
f. Kehancha MCCC No. E036 of 2024: Wycliffe Bob Ogeto vs Sukari Industries Co. Ltd; and
g. Kehancha MCCC No. E037 of 2024: Wycliffe Bob Ogeto vs Sukari Industries co. Ltd
THAT this Court be pleased to Order the transfer and subsequent Consolidation of the aforementioned suits Kehancha MCCC Nos. E016, E017, E020, E024, E028, E036, E037 all of 2024 and Migori HCCC No. E001 of 2024.
THAT the costs of this Application be borne by the Respondent.
The application was based on the annexed affidavit of Stephen Omondi Odero and on the following grounds:
a. The Plaintiff filed this suit before this honorable Court via plaint dated 5th March 2024 Wycliffe Bob Ogeto v Sukari Industries Ltd, seeking inter alia, an order for compensation for Breach of Contract arising from contract number 100686.
b. The plaintiff thereafter instituted 7 other suits against the defendant before Kehancha Law Courts, being MCCC Nos. E016, E017, E020, E024, E028, E036, E037 all of 2024, equally seeking compensation for breach of contract, which essentially arises out of the same transaction, yet after transferring investments from contract no. 100868 to other fields, has since managed to manipulate and or prey on the innocence of the judicial system, and instituted other suits, seeking similar prayers, before Kehancha Law Courts.
c. The Court is currently under April Recess which terminated on 22nd April 2025
d. That Unless this Application is heard within the recess period, nothing stops the plaintiff from proceeding with the prosecution of the matters before Kehancha Law Courts separately, to the risk of the subordinate courts pronouncing themselves and issuing conflicting decisions to this honorable courts.
e. That no prejudice whatsoever shall be occasioned to the Respondent should the instant application be allowed as prayed.
f. This Application has been brought without any unreasonable delay.
g. It is therefore in the wider Interest of Justice and fairness that the Application herein be urgently admitted for hearing and determination.
STEPHEN ODERA the Human Resource Manager of the Applicant averred that the Plaintiff filed this suit before Migori High Court via plaint dated 26th March 2024 Wycliffe Bob Ogeto v Sukari Industries Ltd arising from contract number 100686 seeking compensation for Breach of Contract.
THAT the plaintiff has instituted 8 suits against the defendant in multiple courts seeking compensation for breach of contract being Migori HCC EOOI of 2024 and Kehancha E016, E017, E020, E024, E028, E036, E037 all of 2024 which suits arise out the same financial transactions as Migori HCC EOOI of 2024 and the parties are the same as per annexture marked SO - 1 a Transfer of Investment Report for between 8 March 2010 and 8 March 2025) and SO -2 are copies of Summons to Enter Appearance in the above matters) respectively.
THAT Migori HCC EOOI of 2024 arises out of contract number 100686 where the plaintiff had leased the farm in question and it was erroneously surveyed by the field supervisor as being 16.93Ha. which included roads and some parts of the land that were not arable has it had murram.
THAT the field supervisor engaged the aid of a ploughing contractor Allan Ominde who alleged that he had plough the entire 16.93ha however the farmer noted that the said field was not ploughed and raised the concern with the defendant.
THAT as a result, the land was resurveyed and 2 additional contracts were created being contract No. 126167 for 7.41Ha and Contract No. 100667.
THAT the 3rd portion was left under the current contract in Migori EOOI of 2024 which supplied 127 tons of burnt cane.
THAT, Kehancha MCCC No. E016 of 2021 arises out of contract number 126167 which was resurveyed out of Migori E001/2024 of contract number 100686.
THAT he plaintiff further claimed damages for breach of contract arising out of contract number 109027 whose investments were transferred to Contract No. 126167 and Contract No. 100667.
THAT in August 2021 the farmer transferred investments from contract number 100667 of field number 18201000896 to contract number 100657 of field number 18201000261. (marked as SO -3 is a copy of Filed Transfer of Investment).
THAT on 6th September 2021 the farmer transferred investments inform of seed cane processing, seed cane transportation, land preparation from contract number 109027 and field number 18201000289 to 1006667 and filed number 18201000296. (Annexed herewith and marked SO -4 is a copy of Filed Transfer of Investment).
THAT on 20th December, 2021 the farmer transferred investments being seed cane transportation, seed cane processing, land preparation from contract number 109027 of field number 18201000289. (Annexed herewith and marked SO - 4 is a copy of Filed Transfer of Investment).
THAT on 20th December 2021 the farmer transferred farm investments being land preparation activity from contract number 1 17226 of field number 1820100432 to contract number 126167 of field number 18201000459. (Annexed herewith and marked SO -5 is a copy of Filed Transfer of Investment).
THAT on various dates between 2021 to 2022 the farmer transferred investments from field number 1820100261 to field number 18300102059, 16500203389,18300102059 and 18200701540.
THAT In addition to the above the farmer further transferred 18 investments from field number 18201000289 to field number 18201000459, transferred investments from field number 18201000296 to field number 18201000261 and field number 18201000432 to field 18201000459.
THAT the Plaintiff has filed the above suits before Kehancha Law Court in a bid to defraud the defendant whilst knowing that they all arise from the same transactions.
THAT the plaintiff having transferred investments from one field to another knowingly separated these claims and filed a suit before this court and before Kehancha Law Courts.
THAT by the filing of multiple suits against the defendant, the Plaintiff is abusing the court process and misled the court in his pleadings by notifying the court in the plaint that "he had not filed any other suit over this cause of action"
It was averred that the defendant stands to suffer irreparable loss if the plaintiff is allowed to proceed and prosecute the suits before Migori Law Court and Kehancha Law Courts Separately as all the suits arise from the same financial transaction and can be consolidated and heard together.
THAT It is in the interest of justice that the application is allowed as drawn as no prejudice whatsoever shall be occasioned to the Respondent should the instant application be allowed as prayed.
THAT this Application has been brought without any unreasonable delay.
In opposition to the application the Respondent filed grounds of opposition to the effect that the Application is frivolous and an abuse of the court process.
That each of the cases starting with Migori High Court Civil Case No. E001 of 2024 and all those cases listed on paragraph 2 of the notice of motion are distinct and based on different contracts.
That the causes of action in each of the suits listed on the notice of motion are different and distinct.
That the cases as filed cannot be consolidated as they are based on distinct contracts.
That no application for stay of proceedings has been made in the Kehancha court where the cases are filed so as to give the said court an opportunity to decide the issue before an appeal can be lodged at the High court.
That the provisions of the law listed as a basis for the application do not donate any power to the court to give a stay of proceedings in the subordinate court.
That stay of proceedings and consolidation cannot be granted in the Circumstances of the cases.
The application was canvassed by way of written submissions. The Applicant’s submissions are dated, 22nd September, 25 raised the following issue for determination:
Whether Migori HCC E001 of 2024 and Kehancha E016, E017, E020, E024, E028, E036, E037 all of 2024 between the parties herein should be consolidated, it was submitted that the consolidation of the above suits would help prevent inconsistencies in the court’s determination of the subject of breach of contract between the parties and save judicial time and resources.
While referring to The Black's Law Dictionary, 7th ed. definition of consolidation as:
“..to combine, through court order, two or more actions involving the same parties or issues into a single action ending in a single judgment, or sometimes, separate judgments…”
The Applicant contended that the rationale of the consolidation of suits was discussed in the Law Society of Kenya v. Centre for Human Rights & Democracy & 12 others [2014] eKLR, where the court stated that:
“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. In the matter at hand, this Court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues. In addition, the Court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed.”
That in addition to the above in the matter of Abdalla v. Hassan & 15 Others (Civil Suit No.210 of 2021) [2022] KEELC 13582 (KLR) (5 October 2022) (Ruling), the court stated that:
“From these cases and precedents, the legal ratio and holdings are that, the essence of consolidation essentially are; (a)to facilitate the efficient and expeditious disposal of disputes and (b)to provide a framework for a fair and impartial dispensation of justice to the parties. At all costs and as a matter of principle, consolidation of cases should never be meant to confer any undue advantage upon the party nor should it be intended to occasion any disadvantage towards the party that opposes it.
The Applicant also relied on the case of Kamau v. Njoroge (Civil Appeal 6 of 2023) [2024] KEHC 1953 (KLR) (29 February 2024) (Ruling), in which the court cited with approval the case of Prem Lala Nahata & Another v. Chandi Prasad Sikaria [2007] 2 Supreme Court Cases 551, where the Indian Supreme Court stated that:
“It cannot be disputed that the Court has the power to consolidate suits in appropriate cases... The main purposes of consolidation are to save costs, time, and effort, and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises when there are two or more matters or causes pending in court, and it appears to the court that common questions of law or fact arise in both or all the suits, or that the rights or relief claimed in the suits are in respect of, or arise out of, the same transaction or series of transactions. Alternatively, consolidation may be ordered for some other reason if it is deemed desirable."
Further in the case of Kamau v. Njoroge (supra), the court stated as follows:
“It is therefore clear that the purpose of consolidation of suits is to save costs, time, expedite trials, eliminate duplicative trials involving the same parties, issues, and evidence, and to promote judicial economy. This process enhances the efficient and proper administration of justice and ensures the expeditious disposal of matters, so long as it is not prejudicial to any of the parties involved."
It was submitted that the suits subject to this application are suitable for consolidation as the Respondent filed the current suit via plaint dated 5th March 2024 arising from contract number 100686 seeking compensation for Breach of Contract. He thereafter proceeded to file the Kehancha MCCC E016, E017, E020, E024, E028, E036, E037 all of 2024 arising out of the same contract and financial transactions as Migori HCC E001 of 2024.
It was further submitted that the plaintiff filed the current suit before the High Court as result of contract number 100868 between the parties herein.
That in Migori HCC E001 of 2024 the plaintiff had leased the farm in question from a third party and it was erroneously surveyed by the field supervisor as being 16.93Ha. It was found that the surveyed 16.93Ha included roads and some parts of the land that were not arable has it had murram. The field supervisor engaged the aid of a ploughing contractor one Allan Ominde who alleged that he had plough the entire 16.93 however the farmer noted that the said field was not ploughed and raised the concern with the defendant/applicant.
That as a result, the land was resurveyed and 2 additional contracts were created being contract No. 126167 for 7.41Ha and Contract No. 100667, arising from the subdivision of contract number 100868 and the 16.93 ha piece of subject to contract number. The 3rd portion was left under the current contract which subject matter in Migori E001 of 2024 which supplied 127 tons of burnt cane.
That Kehancha E016 of 2021 arises out of contract number 126167 which was resurveyed out of Migori E001/2024 of contract number 100686.
The plaintiff has further claimed damages for breach of contract arising out of contract number 109027 whose investments were transferred to Contract No. 126167 and Contract No. 100667.
That in August 2021 the farmer transferred investments from contract number 100667 of field number 18201000896 to contract number 100657 of field number 18201000261.
On 6th September 2021 the farmer transferred investments inform of seed cane processing, seed cane transportation, land preparation from contract number 109027 and field number 18201000289 to 1006667 and filed number 18201000296. That on 20th December 2021 the farmer transferred investments being seed cane transportation, seed cane processing, land preparation from contract number 109027 of field number 18201000289.
The farmer further transferred farm investments being land preparation activity from contract number 117226 of field number 1820100432 to contract number 126167 of field number 18201000459.
That on various dates between 2021 to 2022 the farmer transferred investments from field number 1820100261 to field number 18300102059, 16500203389,18300102059 and 18200701540.
The farmer further transferred 18 investments from field number 18201000289 to field number 18201000459, transferred investments from field number 18201000296 to field number 18201000261 and field number 18201000432 to field 18201000459.
The Applicant said that the main purposes of consolidation are to save costs, time, and effort, and to make the conduct of several actions more convenient by treating them as one action. From the above, it is evident that the 8 suits before Migori High Court and Kehancha Magistrates courts have met all the elements and requirements for consolidation of suits.
The Applicant said that the jurisdiction to consolidate arises when there are two or more matters or causes pending in court, and it appears to the court that common questions of law or fact arise in both or all the suits, or that the rights or relief claimed in the suits are in respect of, or arise out of, the same transaction or series of transactions. The 8 suits filed by the Respondent herein all arise from the same transaction, they all seek special damages and compensation for breach of contract, they all arise from the same contract number and piece of land and they are between the same parties and as such they have met the elements and requirements for consolidation.
It was further submitted that consolidating the suits would allow the court to address the issue of breach of contract and the damages awardable more efficiently and thereby reduce the risk of conflicting judgments and ensure the efficient use of judicial time and resources, as the testimony of the witnesses would be presented once and applied to all the cases as the witnesses to be called are the same between the Applicant and Respondent. The consolidation of the suits would expedite the hearing and determination of the suits.
The Applicant further submitted that the consolidating of the suits based on the facts leading to the filing of the suits would prevent conflicting judgments and ensure the fair and efficient resolution of all claims in a single hearing. As such it was prayed that the Application be allowed as drawn.
In Law Society of Kenya v. Center for Human Rights and Democracy and 12 Others(supra), the Supreme Court observed that:
“The essence of consolidation of suits 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.”
Applicant’s counsel submitted that in applying the principles enunciated in the cases cited, the it has established that the consolidation of this suits would facilitate the efficient and expeditious disposal of the suits pursuant to Order 11 Rule 3 (1)(h) and (i) of the Civil Procedure Rules which provides 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—
(h) consider consolidation of suits;
(i)identify a test suit and order stay of other suits.”
The Applicant argued that no party would be put at a disadvantage by the consolidation.
In discharging this burden, the Applicant has demonstrated to the court that the suits raise a common questions of law and of fact, and that the rights and reliefs claimed in the suits arise out of, the same transaction or series of transactions and they have similar facts.
The court was urged to allow the application as it was not opposed and the Applicant had demonstrated that the suit before this court and the suits before Kehancha Magistrates court have met the elements of consolidation
The Respondent in his written submissions dated 21st October 2025 argued that Contrary to the submission that no response to the application dated 14th April 2025 had been filed he had filed grounds of opposition dated 3rd June 2025 on 3.6.25, and a copy was attached to this submissions for ease of reference to both the court and the Applicants counsels.
The Respondent submitted that Section 1 1 of the Civil Procedure Act is instructive and provides:
“Every suit shall be instituted in the court of the lowest grade competent to try it. Kehancha Civil Suits Nos. E016, E017, E020, E024, E028, E036 and E037 were instituted in strict conformity with the above provision of the law.”
It was further submitted that it is clear from the pleadings and the submission of the Applicant that it is only the names of the parties that are the same in all the cases.
It was submitted that in Migori HCC EOOI of 2024 the cause of action is based on a contract serial no. 10086, on a farm measuring 16.93(Ha) and the contract is dated the year 2010 as per the plaint attached to submissions.
That in Kehancha SPMs Court case No. 16 of 2024 the cause of action was based on a contract document serial no. 1 17226, on a farm measuring 1 .30(Ha), in the year 2019 as shown in copy of plaint attached to submissions.
That in Kehancha SPMCCC No. E17 of 2024 the cause of action was based on contract serial no. 160808, a farm measuring 6.68(Ha), for the year 2020 as shown in copy of plaint attached to the submissions.
That in Kehancha SPMCCC No. E020 of 2024 the cause of action was based on a contract document serial No. 10069, on a farm measuring 2.46(Ha), in the year 2020 as shown in copy of plaint attached to the submissions.
In Kehancha SPMCCC No. E024 of 2024 the cause of action was based on a contract document. Serial No. 109027, on a farm measuring 1.95(Ha) in the year 2019 as shown in a copy of plaint attached to the submissions.
In Kehancha SPMCCC No. E036 of 2024 the cause of action was based on a contract serial no. 100657, on a farm measuring 0.51 (Ha) in the year 2019 as per copy of plaint attached to these submissions.
In Kehancha SPMCCC No. E037 of 2024 the cause of action is based on a contract document serial no. 1 17263, on a farm measuring 8.46(Ha) in the year 2019 as per copy of plaint attached to the submissions.
It was submitted that the contract for each case is distinct, and independent and they cannot practically be consolidated so as to make it convenient for any one party before the court.
It was submitted that the evidence to be tendered by the parties has to be for each contract. That the breach being complained of before the court was not a consolidated breach. It was for each particular contract.
It was further submitted that it is more efficient and expeditious to try each individual case with its individual contract. That in all the authorities cited by the Applicant, the court's emphasis that the consolidation when being considered and ordered must not be prejudicial to the party opposing the consolidation.
The Respondent’s counsel also submitted that the consolidation will be prejudicial to the Respondent in the various suits at Kehancha for the reasons:
a) If the suits are consolidated with the High Court suit the Respondent and even the Applicant will obviously loose the advance of any appeal to the High Court and he might wish to file against any holding of the Kehancha court.
b) The Respondent or the Applicant will only have the court of appeal to appeal to which in itself is a prejudice.
Counsel submitted that there is no risk of conflicting judgments as indeed all the suits being sought to be consolidated with this case are in Kehancha court and the judgment of Kehancha court are applicable to the High Court. The court was urged to reject the application for consolidation.
ANALYSIS AND DETERMINATION
Having considered the application, the grounds and the rival submissions the main issue for determination is:
Whether Migori HCC No. E001 of 2024 and Kehancha CMCC Nos. E016, E017, E020, E024, E028, E036 and E037 of 2024 meet the legal threshold for transfer, stay and consolidation.
The power of the court to order consolidation of suits is discretionary and must be exercised judiciously, guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution.
The principles governing consolidation are well settled. Consolidation may be ordered where suits:
- Involve the same or substantially the same parties;
- Raise common questions of law or fact;
- Arise from the same transaction or series of transactions; and
- Where consolidation will not occasion prejudice to any party.
As confirmed by the Applicant while citing the holding in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others [2014] eKLR “The essence of consolidation of suits 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.”
While it is not disputed that the parties in all the suits are the same, similarity of parties alone is not sufficient to justify consolidation.
From the pleadings placed before the court, it is evident that each suit is anchored on a separate and distinct sugarcane farming contract, distinguishable by:
- A different contract serial number;
- A different acreage;
- A different year of contracting; and
- A different parcel or field number.
Each contract created its own rights and obligations, and the alleged breach in each suit relates to performance or non-performance under that specific contract. The causes of action are therefore distinct and independent.
The Applicant relied heavily on the transfer of farm investments and resurveying of land to argue that the contracts form part of the same transaction. However, such transfers, in the court’s view, are operational or administrative occurrences within the sugar industry and do not merge distinct contracts into a single transaction or cause of action. At best, they may constitute background facts or evidentiary material, but they do not satisfy the threshold of “the same transaction or series of transactions” for purposes of consolidation.
Although the suits raise similar legal questions relating to breach of contract and compensation, the factual inquiries necessary to resolve each claim—such as proof of acreage, maturity cycles, pricing, breach and quantum—are contract-specific. Consolidation in such circumstances risks conflation of evidence and may obscure the issues rather than promote clarity.
The Applicant further alleged abuse of the court process. However, the mere filing of separate suits founded on distinct contracts does not, without more, amount to abuse. Section 11 of the Civil Procedure Act requires suits to be instituted in courts of the lowest competent jurisdiction, and the Respondent’s decision to file separate claims in the subordinate court for separate contracts cannot be faulted on that basis alone.
The court must also consider whether consolidation would occasion prejudice. Consolidating subordinate court suits with a High Court matter would effectively deprive the parties of their statutory right of appeal from the magistrate’s court to the High Court, leaving the Court of Appeal as the first appellate forum. This is a substantive prejudice that cannot be ignored.
While consolidation is intended to save time and prevent conflicting decisions, efficiency must not override fairness. The possibility of different outcomes does not justify consolidation where the differences may legitimately arise from differing contractual terms and factual circumstances.
Having given the application due consideration, the court finds that:
1. The suits do not arise from the same transaction or series of transactions;
2. The causes of action are distinct and contract-specific;
3. Consolidation would occasion prejudice, particularly in relation to appellate rights; and
4. The Applicant has not satisfied the legal threshold for transfer, stay and consolidation.
Accordingly, the court makes the following orders:
1. The Notice of Motion dated 14th April 2025 praying for stay of proceedings, transfer and consolidation is hereby dismissed.
2. Costs of the application shall be borne by the Applicant.
3. Mention 24th March for further directions
4. Leave to appeal granted to the Applicant/ Defendant.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 29th DAY OF JANUARY, 2026.