1.The application dated October 18, 2022 and filed by the applicant on even date invokes the provisions of section 3A and 18 of the Civil Procedure Act as well as order 51, rule 1 of the Civil Procedure Rules. It seeks the following reliefs:1.That the honorable court be pleased to transfer Chief Magistrate Case No 75 of 2018 at Kitale and all proceedings pending therein to the Kitale Environment and Land court for trial and disposal.2.Upon grant of prayer 1, the honorable court be pleased to issue an order of consolidation of Kitale Chief Magistrate Land Case No 75 of 2018 at (sic) Kitale Environment and Land Court Case No 46 of 2022 and Kitale Environment and Land Court Case No 9 of 2021 to be heard and determined by the Environment and Land Court judge.3.The costs of this application be provided for.
2.The application is supported by the grounds on the face of it and by further affidavit of the applicant. According to the applicant, the officials of Kamukunji Market CBO instituted Kitale Chief Magistrate Land Case No 75 of 2018 which was scheduled to be mentioned on October 18, 2022. He annexed a copy of the pleadings marked FS1. The value of the subject matter before the trial court is over Kshs 95,000,000.00; over and above the pecuniary jurisdiction of the trial court. For this proposition, the applicant attached a copy of the valuation report in respect to the parcels marked FS2.
3.The applicant argued that the 2nd respondent and one Boaz Kaino litigated upon certain parcels of land wherein judgment was issued in favor of the 2nd respondent. It then commenced execution proceedings against the applicant who was not a party to the suit yet has title deeds in his favor over the suit lands. He contended that it is of necessity thus that a uniform judgment be adopted with a view to avoiding conflicting decisions of the superior courts. He annexed copies of the titles marked FS 3a-d and the judgment marked FS4.
4.The applicant argued further that the cause of action arose within the jurisdiction of this honorable court where other related matters have been filed touching on the same subject matter hence the need for consolidation. He urged that it was in the interest of justice that the suit be heard expediently and uniformly. Finally, the application was made in good faith and would not occasion any prejudice upon the respondents if allowed.
5.The 1st respondent on November 7, 2022 informed the court that it was not averse to the application and thus elected not to participate in the motion.
6.The application was opposed by the 2nd respondent. Through a replying affidavit sworn by its learned counsel David Nyakango Onyancha on October 24, 2022. He deponed that the facts regarding this matter were within his knowledge. He deposed further that the applicant was guilty of material non-disclosure as the instant application is res-judicata. He attached rulings in respect to Kitale ELC Misc App No 5 of 2019 and Kitale ELC Misc App No 11 of 2019 marked DNO 1(a) and (b) respectively in support of that allegation.
7.The deponent cited that the applicant attached a valuation report on the properties revealing that they were valued at Kshs 85,000,000.00 in Kitale ELC Misc App No 11 of 2019. In that regard, he found that the instant Application was an abuse of the process of the court and accused the Applicant of being a vexatious litigant. Finally, he expressed that Kitale ELC No 46 of 2022 and Kitale ELC No 9 of 2021 do not exist. The deponent urged this court to dismiss the application with costs.
8.The applicant purported to file a further affidavit on October 31, 2022. I have perused the court record and I find that the same was not filed with leave of the court. Therefore, to that extent, it is a strange document as far as the record is concerned. For that reasons, I will not consider the affidavit in totality.
9.The parties canvassed the application by way of written submissions. The applicant’s submissions dated October 31, 2022 and filed on even date argued that the matter was not res judicata within the qualifications set out in section 7 of the Civil Procedure Act since the applicant in the present case is different and the substance of the matter is different. He added that the motion annexed an amended plaint whose amendments changed the character of the suit after the rulings were delivered in Kitale ELC Misc App No 5 of 2019 and Kitale ELC Misc App No 11 of 2019. He further supported his motion by stating that he attached a valuation report showing the value in issue. In view of the foregoing, he submitted that the Application is for allowing.
10.The 2nd respondent filed its submissions on October 27, 2022 dated October 26, 2022, the 2nd respondent rehashed the contents of its replying affidavit urging this court to dismiss the same in totality.
11.Looking at the pleadings filed in relation to the instant application, I find the following issues fall for determination sequentially:a.Whether the application is res judicata?b.If the answer in (a) is in the negative, whether the application is merited?c.Who bears costs of the application?