Petition 11 (E015) of 2021

Case Metadata
Case Number:	Petition 11 (E015) of 2021
Parties:	Omoke v Kenyatta & 83 others
Date Delivered:	09 Nov 2021
Case Class:	Civil
Court:	Supreme Court of Kenya
Case Action:
Judge(s):	PM Mwilu, MK Ibrahim, NS Ndungu, I Lenaola, W Ouko
Citation:	Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) (Civ) (9 November 2021) (Ruling)
Court Division:	Civil
County:	Nairobi
Case Summary:	Factors that the Supreme Court consider in determining whether to consolidate matters. Brief facts The 71^st, 72^nd and 73^rd respondents (the applicants) sought for leave to consolidate Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021, and for an order directing parties in the three petitions to file responses to the consolidated Petition as opposed to responding to each of the individual petitions. They contended that all the three petitions involved the same subject matter, raised similar issues of law, and arose from the same set of facts, and considering the number of parties involved, there was likelihood of duplication and disharmony in the submissions if leave for consolidation was not granted. Issues What factors did the Supreme Court consider when determining whether to consolidate matters? Held The jurisdiction to consolidate appeals in the Supreme Court was conferred by rule 21 of the Supreme Court Rules, 2021, which stipulated that the Court could, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings were similar, order that the proceedings be consolidated, on such terms as the court could determine. Consolidation of suits or appeals would be ordered where there were common questions of either law or fact in two or more suits or appeals and where it was desirable that all the related matters be disposed of at the same time. The essence of consolidation was 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 sought it, nor was it intended to occasion any disadvantage towards the party that opposed it. Through consolidation, costs, time and other resources were saved and multiplicity of proceedings avoided. All the three petitions before the court arose from the same set of facts; the same subject matter; they raised similar issues of law; involved the same parties who were before the two Superior Courts below and ensued from the same judgment. The instant application met the threshold for consolidation and Petition No. 12 of 2021 (E016) of 2021, Attorney General vs David Ndii & 73 Others, encapsulated most of the key grounds common to the rest of the other petitions, in contrast with the appellant’s Petitions No. 11 (E015) of 2021, which raised only one question. The order of precedence, proceedings and presentation of arguments in the petitions would be determined on November 9, 2021 during the mention for directions by the Supreme Court.
Extract:	Cases David Ojwang’ Okebe v South Nyanza Sugar Company Limited (Civil Appeal (Application) 139 of 2008, [2009] eKLR) — Mentioned Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others (SC Petition No. 14 of 2013, [2014] eKLR) — Mentioned Atlantic States Legal Foundation Inc v Koch Refining Co (681 F. Supp 609, 615 (D. Minn. 1988)) — Mentioned Statutes Supreme Court Rules (2020) — Rule 21 — Interpreted Advocates None mentioned
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) (Civ) (9 November 2021) (Ruling)

Neutral citation: [2021] KESC 27 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 11 (E015) of 2021

PM Mwilu, DCJ & V-P, MK Ibrahim, NS Ndungu, I Lenaola & W Ouko, SCJJ

November 9, 2021

Between

Morara Omoke

Appellant

and

Uhuru Muigai Kenyatta

1^st Respondent

Raila Amolo Odinga

2^nd Respondent

Steering Committee on The Implementation of The Building Bridges to A United Kenya Task Force Report (BBI Steering Committee)

3^rd Respondent

Building Bridges to A United Kenya, National Secretariat (BBI Secretariat)

4^th Respondent

Attorney General

5^th Respondent

David Ndii

6^th Respondent

Jerotich Seii

7^th Respondent

James Gondi

8^th Respondent

Wanjiru Gikonyo

9^th Respondent

Ikal Angelei

10^th Respondent

Thirdway Alliance Kenya

11^th Respondent

Miruru Waweru

12^th Respondent

Angela Mwikali

13^th Respondent

Public Service Commission

14^th Respondent

Auditor General

15^th Respondent

National Executive

16^th Respondent

Speaker of The Senate

17^th Respondent

Senate

18^th Respondent

Speaker of The National Assembly

19^th Respondent

National Assembly

20^th Respondent

County Assembly of Mombasa

21^st Respondent

County Assembly of Kwale

22^nd Respondent

County Assembly of Kilifi

23^rd Respondent

County Assembly of Tana River 24th

24^th Respondent

County Assembly of Lamu

25^th Respondent

County Assembly of Taita-Taveta

26^th Respondent

County Assembly of Garisa

27^th Respondent

County Assembly of Wajir

28^th Respondent

County Assembly of Mandera

29^th Respondent

County Assembly of Marsabit

30^th Respondent

County Assembly of Isiolo

31^st Respondent

County Assembly of Meru

32^nd Respondent

County Assembly of Tharaka-Nithi

33^rd Respondent

County Assembly of Embu

34^th Respondent

County Assembly of Kitui

35^th Respondent

County Assembly of Machakos

36^th Respondent

County Assembly of Makueni

37^th Respondent

County Assembly of Nyandarua

38^th Respondent

County Assembly of Nyeri

39^th Respondent

County Assembly of Kirinyaga

40^th Respondent

County Assembly of Murang’a

41^st Respondent

County Assembly of Kiambu

42^nd Respondent

County Assembly of Turkana

43^rd Respondent

County Assembly of West Pokot

44^th Respondent

County Assembly of Samburu

45^th Respondent

County Assembly of Trans Nzoia

46^th Respondent

County Assembly of Uasin Gishu

47^th Respondent

County Assembly of Elgeyo/Marakwet

48^th Respondent

County Assembly of Nandi

49^th Respondent

County Assembly of Baringo

50^th Respondent

County Assembly of Laikipia

51^st Respondent

County Assembly of Nakuru

52^nd Respondent

County Assembly of Narok

53^rd Respondent

County Assembly of Kajiado

54^th Respondent

County Assembly of Kericho

55^th Respondent

County Assembly of Bomet

56^th Respondent

County Assembly of Kakamega

57^th Respondent

County Assembly of Vihiga

58^th Respondent

County Assembly of Bungoma

59^th Respondent

County Assembly of Busia

60^th Respondent

County Assembly of Siaya

61^st Respondent

County Assembly of Kisumu

62^nd Respondent

County Assembly of Homa Bay

63^rd Respondent

County Assembly of Migori

64^th Respondent

County Assembly of Kisii

65^th Respondent

County Assembly of Nyamira

66^th Respondent

County Assembly of Nairobi

67^th Respondent

Justus Juma

68^th Respondent

Isaac Ogola

69^th Respondent

Isaac Aluochier

70^th Respondent

Duncan Ojwang’

71^st Respondent

John Osogo Ambani

72^nd Respondent

Linda Musumba

73^rd Respondent

Jack Mwimali

74^th Respondent

Kenya Human Rights Commission

75^th Respondent

Migai Akech

76^th Respondent

Charles Manga Fombad

77^th Respondent

Muslims for Human Rights (Muhuri)

78^th Respondent

Kituo cha Sheria

79^th Respondent

Kenya National Union of Nurses

80^th Respondent

Independent Electoral and Boundaries Commission

81^st Respondent

Building Bridges to A United Kenya Task Force (BBI Taskforce)

82^nd Respondent

Phylister Wakesho

83^rd Respondent

254 Hope

84^th Respondent

(An application seeking the consolidation of Petition No 11(E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No.13 (E018) of 2021)

Factors that the Supreme Court consider in determining whether to consolidate matters.

Reported by Ribia John

Civil Practice and Procedure – consolidation of suits – factors to consider when consolidting suits– purpose of consolidation of suits - what factors did the Supreme Court consider when determining whether to consolidate matters – Supreme Court Rules, 2021, rule 21.

Brief facts The 71^st, 72^nd and 73^rd respondents (the applicants) sought for leave to consolidate Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021, and for an order directing parties in the three petitions to file responses to the consolidated Petition as opposed to responding to each of the individual petitions. They contended that all the three petitions involved the same subject matter, raised similar issues of law, and arose from the same set of facts, and considering the number of parties involved, there was likelihood of duplication and disharmony in the submissions if leave for consolidation was not granted.

Issues What factors did the Supreme Court consider when determining whether to consolidate matters?

Held

The jurisdiction to consolidate appeals in the Supreme Court was conferred by rule 21 of the Supreme Court Rules, 2021, which stipulated that the Court could, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings were similar, order that the proceedings be consolidated, on such terms as the court could determine. Consolidation of suits or appeals would be ordered where there were common questions of either law or fact in two or more suits or appeals and where it was desirable that all the related matters be disposed of at the same time.
The essence of consolidation was 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 sought it, nor was it intended to occasion any disadvantage towards the party that opposed it.
Through consolidation, costs, time and other resources were saved and multiplicity of proceedings avoided. All the three petitions before the court arose from the same set of facts; the same subject matter; they raised similar issues of law; involved the same parties who were before the two Superior Courts below and ensued from the same judgment.
The instant application met the threshold for consolidation and Petition No. 12 of 2021 (E016) of 2021, Attorney General vs David Ndii & 73 Others, encapsulated most of the key grounds common to the rest of the other petitions, in contrast with the appellant’s Petitions No. 11 (E015) of 2021, which raised only one question.
The order of precedence, proceedings and presentation of arguments in the petitions would be determined on November 9, 2021 during the mention for directions by the Supreme Court.

Application allowed.

Orders

Notice of Motion dated October 7, 2021 allowed.
Petition No. 11 (E015) of 2021 - Morara Omoke vs H.E. Uhuru Muigai Kenyatta & 83 Others; Petition No. 12 (E016) of 2021 - The Attorney General vs David Ndii & 73 Others; and Petition No. 13 (E18) of 2021 - Independent Electoral and Boundaries Commission vs David Ndii & 81 Others, are hereby consolidated.ii.Petition No 12 (E016) of 2021, The Attorney General vs. David Ndii & 73 Others would serve as the lead file in the proceedings and parties who had been omitted in it, for example, 74^th respondent, Dr.Jack Mwimali and 78^th respondent, Muslims for Human Rights (MUHURI) were to be included.
No orders as to costs.

Citations Cases

David Ojwang’ Okebe v South Nyanza Sugar Company Limited (Civil Appeal (Application) 139 of 2008, [2009] eKLR) — Mentioned
Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others (SC Petition No. 14 of 2013, [2014] eKLR) — Mentioned
Atlantic States Legal Foundation Inc v Koch Refining Co (681 F. Supp 609, 615 (D. Minn. 1988)) — Mentioned

Statutes

Supreme Court Rules (2020) — Rule 21 — Interpreted

AdvocatesNone mentioned

Ruling

[1]BEFORE us is a Notice of Motion dated 7^th October, 2021, filed on even date by Dr. Duncan Oburu Ojwang, Dr. John Osogo Ambani and Dr. Linda Musumba, the 71^st, 72^nd and 73^rd Respondents, respectively( the Applicants), for leave to consolidate Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021, and for an order directing parties in the three petitions to file responses to the consolidated Petition as opposed to responding to each of the individual petitions; and

[2]UPON perusing the affidavit of Dr. Duncan Oburu Ojwang sworn on behalf of the Applicants in support of the Motion on the 7^th October, 2021 to the effect that all the three Petitions before us involve the same subject matter, raise similar issues of law, and arise from the same set of facts, and considering the number of parties involved, there is likelihood of duplication and disharmony in the submissions if leave for consolidation is not granted; and

[3]FURTHER, noting that in an affidavit dated 14^th October, 2021, Mr. Morara Omoke (the Appellant) essentially supports the application but urges the Court to consider his Appeal, Petition No. 11(E15) of 2021, Morara Omoke versus H.E. Uhuru Muigai Kenyatta and 83 Others as the lead file for reasons that; it was filed first, has, unlike the other two Petitions, named all parties who were before the Court of Appeal, and as a result would be easier for all parties to electronically and physically file their pleadings in one file; and

[4]NOTING that the Independent Electoral and Boundaries Commission, the 81^st respondent is similarly not opposed to the Application but only prefers that its Appeal, Petition No. 13 (E18) of 2021 be consolidated with that of the Attorney General, Petition No 12 (E016) of 2021, while the Appellant’s Petition No. 11 (E015) of 2021 be treated as a cross-appeal; and

[5]FURTHER, noting that the Appellant in a Supplementary Affidavit, dated 20^th October 2021, opposes this suggestion on the grounds that; such a request was not prayed for in the instant application, is unfounded, and insists that if any appeal is to be converted to a cross-appeal, then the appeals by Independent Electoral and Boundaries Commission and by the Attorney General ought to be consolidated; and

[6]UPON considering the Applicant’s written submissions dated 7^th October, 2021, filed on the same date, citing Rule 21 of the Supreme Court Rules 2020, and the Court’s decisions in Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others, SC Petition No. 14 of 2013, [2014] eKLR and David Ojwang’ Okebe v South Nyanza Sugar Company Limited, Civil Appeal (Application) 139 of 2008, [2009] eKLR as authorities for consolidation of appeals before this Court; and considering also a replying affidavit filed on behalf of the Independent Electoral and Boundaries Commission on 19^th October, 2021; and

[7]UPON further evaluation of those submissions and applying the convenience test enunciated in the case of Atlantic States Legal Foundation Inc v Koch Refining Co 681 F. Supp 609, 615 (D. Minn. 1988) to the effect that in considering whether or not to consolidate cases, it is of paramount importance for the court to weigh the cost, time, effort and judicial resources involved.

[8]WE NOW THEREFORE OPINE as follows:i.The jurisdiction to consolidate appeals in this Court is conferred by Rule 21 of the Supreme Court Rules, 2021, which stipulates that;“The Court may, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings are similar, order that the proceedings be—a.consolidated, on such terms as the Court may determine…”.ii.Consolidation of suits or appeals will be ordered where there are common questions of either law or fact in two or more suits or appeals and where it is desirable that all the related matters be disposed of at the same time.iii.When considering an application for consolidation, this Court will bear in mind the guiding principles it pronounced in the case of the Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others, SC Petition No. 14 of 2013, [2014] eKLR, 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.”iv.Through consolidation, costs, time and other resources are saved and multiplicity of proceedings avoided. All the three Petitions before this Court arise from the same set of facts; the same subject matter; they raise similar issues of law; involve the same parties who were before the two Superior Courts below; and ensue from the same judgment.v.We bear in mind that the application is not opposed in substance, save to the extent explained in Paragraphs 3, 4 and 5 above.vi.Upon perusal and careful consideration of the three Petitions, we entertain no doubt that this Application meets the threshold for consolidation; and further, that Petition No. 12 of 2021 (E016) of 2021, The Attorney General vs David Ndii & 73 Others, encapsulates most of the key grounds common to the rest of the other Petitions, in contrast with the Appellant’s Petitions No. 11 (E015) of 2021, which raises only one single question.vii.The order of precedence, proceedings and presentation of arguments in the Petitions will be determined on 9^th November, 2021 during the Mention for directions by the Court.

[9]CONSEQUENTLY, we allow the Notice of Motion dated 7^th October, 2021 and make the following orders:i.Petition No. 11 (E015) of 2021 - Morara Omoke vs H.E. Uhuru Muigai Kenyatta & 83 Others; Petition No. 12 (E016) of 2021 - The Attorney General vs David Ndii & 73 Others; and Petition No. 13 (E18) of 2021 - Independent Electoral and Boundaries Commission vs David Ndii & 81 Others, are hereby consolidated.ii.Petition No 12 (E016) of 2021, The Attorney General vs. David Ndii & 73 Others will serve as the lead file in the proceedings and parties who have been omitted in it, for example, 74 ^th Respondent, Dr.Jack Mwimali and 78 ^thRespondent, Muslims for Human Rights (MUHURI) to be included.iii.We make no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 9TH . DAY OF NOVEMBER, 2021.............................. P. M. MWILU DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT .............................M.K. IBRAHIM JUSTICE OF THE SUPREME COURT .............................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT .............................I. LENAOLAJUSTICE OF THE SUPREME COURT .............................W. OUKOJUSTICE OF THE SUPREME COURT I certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA

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