Murgor & 3 others v Director of Public Prosecutions & 5 others; Ndichu & 5 others (Interested Parties) (Constitutional Petition E110 of 2022)  KEHC 2618 (KLR) (Constitutional and Human Rights) (31 March 2023) (Ruling)
Neutral citation:  KEHC 2618 (KLR)
Republic of Kenya
Constitutional Petition E110 of 2022
AC Mrima, J
March 31, 2023
Stephanie Chepkosgei Murgor & 3 others
The Director of Public Prosecutions & 5 others
Edward Wanyoike Ndichu & 5 others
1.This ruling is in respect of the Notice of Motion dated 11th April, 2022. The application was taken out by Edward Wanyoike Ndichu and Paul Mwaura Ndichu, the 1st and 2nd Interested Parties herein.
2.The gist of the application is an order seeking the consolidation of this Petition with High Court of Kenya at Nairobi Constitutional Petition No. E106 of 2022 Edward Wanyoike Ndichu and Paul Mwaura Ndichu vs. The Director of Public Prosecutions & 2 Others; Stephanie Chepkosgei Murgor & 3 Others (Interested Parties).
3.The Applicants gave 9 reasons for the consolidation ranging from the commonality of issues of law and facts, the nature of the reliefs sought, the need for expeditious dispensation of justice among others.
4.The application was supported by an Affidavit sworn by Mr. Kimani Kinyanjui, the Counsel for the Applicants.
5.With an exception of the 1st, 2nd, 3rd and 4th Respondents, the rest of the parties supported the application.
6.In opposition to the application, the 1st, 2nd, 3rd and 4th Respondents filed Grounds of Opposition dated 6th June, 2022.
7.The application was heard by way of oral submissions. Counsel were heard by the Court on their rival positions.
8.This Court has carefully considered the application alongside the submissions and the decisions referred therein. I will, however, not reproduce verbatim the submissions tendered, but will take the content thereof into account in this discussion.
9.The subject of consolidation of suits is a well-trodden route in the judicial circles. Courts have, without number, expressed themselves on the legal principles governing the subject.
10.The Supreme Court of Kenya in Petition No. 14 of 2013 Law Society of Kenya vs Centre for Human Rights and Democracy and 12 Others (2014) eKLR, observed as follows on the subject: -….. the essence of consolidation of suits 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…
11.The Supreme Court of India in Prem Lala Nahata & Another vs Chandi Prasad Sikaria, (2007) 2, Supreme Court Cases 551 at paragraph 18 had the following to say on consolidation of suits: -…. it cannot be disputed that the Court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the Court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or cause pending in the Court and it appears to the Court that some common questions of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason, it is desirable to make an order consolidating the suits….
12.In Mombasa HCCC No. 992 of 1994 Nyati Security Guards and Services vs Municipal Council of Mombasa, the Court enumerated the factors to be considered in consolidation requests as follows: -
13.Returning to the matter at hand, there is no dispute that three Petitions arose from the events of the 16th and 17th October, 2021 at Emara Ole- Sereni Hotel in Nairobi between the Petitioners and the Interested Parties herein. The Petitions are the two sought to be consolidated herein and the other one is High Court of Kenya at Nairobi Constitutional Petition No. E145 of 2022 Munira Hassan Mohamed vs. The Director of Public Prosecutions & 3 Others; Stephanie Chepkosgei Murgor & 5 Others (Interested Parties).
14.The instant Petition seeks the following reliefs: -
15.Petition No. E106 of 2022 seeks the following reliefs: -
16.And, Petition No. E145 of 2022 prays for the following orders: -
17.From the foregoing, it is apparent that the focus of the three Petitions is to challenge the exercise of the powers of the Respondents which culminated with the decisions to prefer charges against the respective Petitioners in the three Petitions. The 1st – 4th Respondents, however, laid more premium on the responses to each Petition. Whereas the 1st – 4th Respondents may have different factual responses to each of the Petitions, such responses will only go to the extent of demonstrating that the 1st – 4th Respondents acted within the Constitution and the law in making the impugned decisions.
18.Further, the 1st – 4th Respondents’ position ought to be distinguished in that the nature and reliefs sought in the three Petitions are not similar to the purpose of the criminal cases facing the Petitioners. Therefore, the issues to be canvassed in the Petitions are completely different from those in the criminal cases against the Petitioners and the Interested Parties.
19.Going by the legal principles as developed by Courts on consolidation applications and the position taken by the 1st – 4th Respondents against the application, it appears that the 1st – 4th Respondents seem not to draw the distinction between the nature and reliefs in the Petitions and those in the criminal cases. To that extent, the 1st – 4th Respondents do see the Petitions herein as the criminal cases, a position which cannot be right.
20.Having said so, it, therefore, comes out that there is reasonable no legal bar to decline the application. The application seeks to expedite the disposal of not only the Petitions, but also the criminal cases which are now stayed pending the outcome of the Petitions.
21.Consequently, the following orders do hereby issue: -a.The High Court of Kenya at Nairobi Constitutional Petition No. E110 of 2022 Stephanie Chepkosgei Murgor & 4 Others vs. The Director of Public Prosecutions & 5 Others; Edward Wanyoike Ndichu & 5 Others (Interested Parties), the High Court of Kenya at Nairobi Constitutional Petition No. E145 of 2022 Munira Hassan Mohamed vs. The Director of Public Prosecutions & 3 Others; Stephanie Chepkosgei Murgor & 5 Others (Interested Parties) and the High Court of Kenya at Nairobi Constitutional Petition No. E106 of 2022 Edward Wanyoike Ndichu and Paul Mwaura Ndichu vs. The Director of Public Prosecutions & 2 Others; Stephanie Chepkosgei Murgor & 3 Others (Interested Parties) are hereby consolidated.b.Petition No. E110 of 2022 shall be the LEAD FILE.c.The Parties shall, henceforth, appear in the consolidated Petitions as follows: -Petitioners:1st - Stephanie Chepkosgei Murgor2nd - Cheryl Chelimo Murgor3rd - Samuel Dennis Ramdas4th - Patrick Kipng’etich Koech5th - Paul Mwaura Ndichu6th - Edward Wanyoike Ndichu7th - Munira Hassan MohamedRespondents:1st - The Director of Public Prosecutions2nd - Office of the Director of Public Prosecutions3rd - Inspector General of the National Police Service4th - The Director of Criminal Investigations5th - The Chief Magistrates Court, Kibera Law Courts6th - The Attorney GeneralInterested Parties:1st - Federation of Women Lawyers – Kenya2nd - Law Society of Kenya3rd - The Victim Protection Boardd.The matter be placed before the Presiding Judge for further directions on way forward.
DELIVERED, DATED AND SIGNED AT KITALE THIS 31ST DAY OF MARCH, 2023.A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:Miss Kala for Mr. Murgor, Learned Counsel for the 1st – 4th Petitioners.N/A, for the 5th & 6th Petitioners.N/A, for Learned Counsel for the 7th Petitioner.N/A, for the 1st – 4th Respondents.Mr Amanga, for the 3rd Interested PartyN/A, for the 5th & 6th Respondents.Regina/Chemutai – Court Assistants