BEFORE us is a Notice of Motion dated 7th October, 2021, filed on even date by Dr. Duncan Oburu Ojwang, Dr. John Osogo Ambani and Dr. Linda Musumba, the 71st, 72nd and 73rd 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
UPON perusing the affidavit of Dr. Duncan Oburu Ojwang sworn on behalf of the Applicants in support of the Motion on the 7th 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
FURTHER, noting that in an affidavit dated 14th 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
NOTING that the Independent Electoral and Boundaries Commission, the 81st 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
FURTHER, noting that the Appellant in a Supplementary Affidavit, dated 20th 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
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;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,  eKLR, that: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 9th November, 2021 during the Mention for directions by the Court.
CONSEQUENTLY, we allow the Notice of Motion dated 7th 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