Introduction
1. Before court is a Notice of motion dated 16th October 2025 filed by the applicant seeking the following orders;
a) That this Honourable court do issue orders for consolidation of Appeal No. E005 /2025 and E037 /2025
b) That upon consolidation, supplementary submissions be filed in addition to already existing submissions.
c) No order as to costs
2. The application is anchored on the affidavit sworn on by the applicant. The applicant’s case is that Appeal Nos. E005 of 2025 and E037 of 2025 emanate from the same lower court matter being CMCE & L 130 OF 2018 and that the pleadings for purposes of preparation of record of appeal are the same.
3. Further that Appeal No. E005 of 2025 is against decisions of the lower court made on 19th November 2024 and 19th December 2024, while Appeal No. E037 of 2025 is against the decision made on 24th April 2025. That the two appeals should be argued as one appeal as consolidation will ensure expeditious disposal of the said appeals.
4. The application was opposed. The 2nd respondent filed grounds of opposition dated 4th October 2025. He stated that no reasonable ground for consolidation had been advanced. That the application is made in bad faith to stall the determination of the appeals expeditiously and that the same is fatally defective as an application for consolidation of appeals cannot be made in a miscellaneous application.
5. Parties filed submissions in support of their respective positions. On record are submissions filed by the applicant dated 18th November 2025 and those filed by the respondent dated 10th November 2025; both of which the court has duly considered.
Analysis and determination.
6. The court has duly considered the application, response thereto and submissions. The issue that arises for the court’s determination is whether the applicant deserves the orders sought.
7. The applicant sought orders for consolidation of two appeals which are pending determination before this court namely Appeal No. E005 OF 2025 and Appeal E37 OF 2025. He also sought leave to file supplementary submissions in the said appeals.
8. It is trite that the trial court may order consolidation of two or more suits where two or more matters are pending in the same court where the same questions of law or fact arise in both cases; where the reliefs sought in both cases arise out of the same transaction or series of transactions; and where the consolidation will not confer undue advantage to one party, but will facilitate the efficient and expeditious disposal of disputes at an affordable cost to the parties.
9. In the case of 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.”
10. Similarly, 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. Therefore, consolidation is a case management tool geared 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. Being a case management tool, it follows that consolidation ought to be sought within the file sought to be consolidated with another file, and not through a separate suit and or a miscellaneous application. The court’s jurisdiction to order consolidation can only be exercised in the matter sought to be consolidated with another matter.
12. In the instant case, the applicant seeks, by way of a miscellaneous application, to consolidate two appeals pending before this court. Therefore, the court’s jurisdiction to order consolidation of suits is not properly invoked.
13. This court has no jurisdiction to order consolidation of appeal cases in a miscellaneous application. The court cannot also within a miscellaneous application, order the filing of supplementary submissions in respect of two appeals. That would be a process that is unknown in law.
14. The proper procedure in this matter would have been to seek consolidation in either Appeal No. E005 OF 2025 or in Appeal No. E037 OF 2025. In the premises, I hereby strike out the Notice of motion dated 16th October 2025 for want of jurisdiction. Costs of the application are hereby awarded to the 2nd respondent.
15. It is so ordered
DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 9TH DAY OF APRIL 2026.
In the presence of;
No appearance for the applicant
Mr. Mulama for the 2nd respondent
No appearance for the 1st respondent
Court Assistant- Delphine