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Gitau v Jennings & 5 others; Acorverde (K) Limited & another (Interested Parties) (Commercial Case E629 of 2021) [2022] KEHC 16551 (KLR) (Commercial and Tax) (7 December 2022) (Directions)
Neutral citation:
[2022] KEHC 16551 (KLR)
Republic of Kenya
Commercial Case E629 of 2021
DO Chepkwony, J
December 7, 2022
Between
William K Gitau
Plaintiff
and
Stephen Jennings
1st Defendant
Christopher John Barron
2nd Defendant
Tatu City Limited
3rd Defendant
Oaklands Properties Kenya Limited
4th Defendant
Mary Chege
5th Defendant
Chief Land Registrar
6th Defendant
and
Acorverde (K) Limited
Interested Party
Tenton (K) Limited
Interested Party
Directions
1.It was brought to this court’s attention that there are three applications pending in this matter-
2.It is a common ground this court, while presided by Hon Lady Justice Okwany directed that the three application be canvassed by way of written submissions. However, on November 20, 2022 when the parties appeared before me for highlighting of submissions, whereas Mr Isaac Rene counsel for the plaintiff confirmed compliance and readiness to highlighting, the defendants counsel led by senior counsel Mr Ahmed Nassir counsel for the 1st, 2nd, 3rd and 4th defendants informed the court that there were new developments which would render some of the applications unnecessary.
3.According to the learned senior counsel, the purport of two rulings delivered by this court dispensed with the application dated July 19, 2021 and August 4, 2021. More specifically, that directions were issued by the Hon Justice Mabeya on September 1, 2021 that OS E702 of 2021 be prosecuted separately from the present suit by way of affidavit evidence, although the court observed that the issues in that suit and the present suit were similar. In view of the learned senior counsel, those directions disposed and or rendered otiose the application dated August 4, 2021 seeking to consolidate this matter with OS E702 of 2021.
4.In addition, although the Honourable Lady Justice Okwany in a ruling dated July 21, 2022, denied the invitation to stay the proceedings in OS E702 of 2021 pending the hearing of the application for consolidation herein dated August 4, 2021, she reviewed the earlier directions by Hon Justice Mabeya and directed that the suit (OS E702 of 2021) proceeds by way of viva voce evidence. Nonetheless, there is an appeal pending against the subsequent directions by Hon Lady Justice Okwany.
5.It is however important to point out both Hon Justice Mabeya and Hon Justice Okwany were of twinned opinion that the two matters are related in factual issues but none of them ruled out and or approved the application dated August 4, 2021 for consolidation save for directions of September 1, 2021, which have since been set aside. Since the Court of Appeal is yet to reverse the ruling dated July 21, 2022 and the directions therein, I am of the view that it is still open for this court to consider possible case of consolidation of the two cases given the similarity in the factual issues.
6.Having said the above, it cannot be gainsaid that the application dated August 4, 2021 is open for this court’s consideration and the invitation to declare it as overtaken by events or otherwise spent is declined since no such judgment has been passed. I am reluctant to make any pronouncement on its merit based on the implication of ruling/directions by previous courts which had the conduct of the matter. I shall avail the parties an opportunity to canvass the application.
7.As regards the application dated July 19, 2021 seeking joinder of the 3rd and 4th interested parties, other than the directions issued by Hon Mabeya on September 1, 2021 and which directions have been set aside, I have not seen any other ruling and or direction by this court implying that the issue of joinder as sought has been dealt with.
8.In the premises, I am persuaded that it would still be in order to canvass the three applications in contemporaneity as earlier directed. Given that the court has not substantively and with preciseness pronounced itself on any of the issues pending on the three applications, the following order do issue:-a)Mention on January 26, 2021 for fixing a ruling date and or highlighting.
9.It is so ordered.
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7THDAY OF DECEMBER, 2022.D. O. CHEPKWONYJUDGEIn the presence of:Mr. Isaac Rene holding brief for Mr. Omwansa counsel for the PlaintiffMr. Ahmed-Nassir (S.C) appearing for 1st – 4th DefendantsMr. Wambugu counsel for 5th DefendantMr. Otieno Willis counsel for proposed 3rd and 4th Proposed Interested PartiesCourt Assistant - Sakina
