Ethics and Anti-Corruption Commission v Sampadoria Investments Limited & 3 others; National Water Harvesting and Storage Authority & 2 others (Interested Parties) (Environment & Land Case E023 of 2023) [2025] KEELC 294 (KLR) (31 January 2025) (Ruling)
Neutral citation:
[2025] KEELC 294 (KLR)
Republic of Kenya
Environment & Land Case E023 of 2023
LL Naikuni, J
January 31, 2025
Between
Ethics and Anti-Corruption Commission
Plaintiff
and
Sampadoria Investments Limited
1st Defendant
Wilson Gachanja
2nd Defendant
Sammy Silas Komen Mwaita
3rd Defendant
The Chief Land Registrar
4th Defendant
and
National Water Harvesting and Storage Authority
Interested Party
Coast Water Works Development Agency
Interested Party
National Land Commission
Interested Party
Ruling
I. Introduction
1.This Honorable Court is tasked to make a determination of the Notice of Motion application dated 28th June, 2024. It was filed by Sampadoria Investments Limited, the 1st Defendant/Applicant herein and brought under the provision of Sections 1A and 3A of the Civil Procedure Act, Cap. 21 and Order 19 Rule 2 of the Civil Procedure Rules, 2010, Section 7 of the Limitation of Actions Act and Article 159 of the Constitution of Kenya, 2010.
2.Upon service of the application to the Plaintiff/Respondent, it filed grounds of opposition dated 22nd July, 2024.
II. The 1st Defendant/Applicant case
3.The 1st Defendant/ Applicant sought for the following orders:-a.Spent.b.This suit be and is hereby struck out and/or dismissed.c.In the alternative, this suit be and is hereby stayed or consolidated with Mombasa ELC No. E023 of 2024: Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 Others.d.In the event of and upon such consolidation, the lead file be and is herebyselected/designated as Mombasa ELC No. E023 of 2024: Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 Others.e.Patrick Chirongo, the Plaintiff’s legal clerk be and is hereby summoned to appear before this court on a date appointed by the court for purposes of cross-examination on the contents of his Affidavit of Service sworn on 7th December 2023f.Costs of this application and/or of the man suit be paid by the Plaintiff.
4.The application by the Applicants herein was premised on the grounds, testimonial facts and averments made out under the 31 Paragraphed Supporting Affidavit of –Mohamedraza S.rashid, the Plaintiff a Manager of the 1st Defendant/Applicant herein sworn and dated on the same day as the Application with nine (9) annexures marked as ‘MR-1 to 9”. The Applicant averred that:i.The 1st Defendant/Applicant was and is still the registered owner of the property known as L.R No. MN/l/10401 measuring 2.387 Hectares or thereabout and situate at Shanzu in Mombasa County (hereinafter ‘the suit property’). Annexed in the affidavit and marked as ‘MR - 2’ a true copy of the title deed.ii.The 1st Defendant held the suit property as a lessee from the Government of the Republic of Kenya for a term of 99 years with effect from 1st July 1997.iii.The 1st Defendant/Applicant was allotted and/or allocated the suit property vide a Letter of Allotment Reference No. 61093/IX/24 dated 8th July 1997.iv.Despite knowing well that the suit property was allocated to the 1st Defendant/Applicant by the Government of Kenya for valuable consideration, the Plaintiff commenced investigations into an alleged illegal demarcation/alienation of the suit property under the guise that the same was public land.v.The Plaintiff invited the 1st Defendant/Applicant to appear before it to record a statement and explain how it acquired the suit property. Annexed in the affidavit and jointly marked as ‘MR - 3’ were true copies of the letters exchanged between the 1st Defendant and the Plaintiff regarding the Investigations.vi.After a series of back and forth, the 1st Defendant/Applicant represented by himself appeared before the Plaintiff's officers at its Coast Region offices situate at ACK Cathedral along Nkrumah Road Mombasa on 25th September 2023 and a statement wasduly recorded. Annexed in the affidavit and marked as ‘MR - 4’ was a true copy of the statement.vii.Immediately he finished the interview and statement recording, he was surprised when the Plaintiff’s officer who was in charge of the process pulled a pre-drafted and pre-signed letter written and dated much earlier on 22nd September 2023 from a drawer and slapped him with the same. In the said letter, it was alleged that the suit property was illegally and corruptly alienated and acquired by the 1st Defendant/Applicant. Annexed in the affidavit and jointly marked as ‘MR - 5’ were true copies of the letter dated 22nd September 2023 and the response by the Law firm of Messrs. Oluga & Co. Advocates dated 3rd October 2023.viii.The fact that the Plaintiff had an already-signed letter in its possession was a clear indication that the Plaintiff had already formed its opinion about the illegality of the title of the suit property even before hearing the 1st Defendant’s/Applicant’s side of the story. Accordingly, the purported investigations conducted by the Plaintiff were a sham and a manifestation of sheer bad faith because the Plaintiff had a premeditated outcome of the investigations.ix.Accordingly, the 1st Defendant/Applicant filed a case seeking redress, to wit, “Mombasa ELC No. E023 of 2024: Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 Others (hereinafter “ELC No. E023 of 2024”)”. Annexed in the affidavit and marked as ‘MR – 3 to 6’ was a true copy of the Plaint.x.The subject of the said ELC No. E023 of 2024 was the property known as L.R No. MN/l/10401 which was also the subject of the instant suit.xi.The said ELC No. E023 of 2024 was currently active before this court and the same sought to determine ownership of the suit property which ownership is what the Plaintiff challenging in this suit.xii.This suit will automatically be defeated and rendered superfluous should the court make a finding in ELC No. E023 of 2024 that the 1st Defendant was the legal owner of the suit property.xiii.In the circumstances, it was imperative that this suit be struck out or stayed to pave way for the hearing and disposal of ELC No. E023 of 2024.xiv.Unlike this suit, ELC No. E023 of 2024 has interim orders issued by Justice L.L. Naikuni 3rd April 2024 and extended on 15th May 2024 hence the need to give the said case priority and concentrate on it rather than this one. Annexed and jointly marked as ‘MR - 7’ was true copy of the said orders.xv.The Plaintiff and all the parties in this case would not suffer any prejudice because they would have occasion to elucidate and canvass any issues raised in this suit in ELC No. E023 of 2024.xvi.Although this suit was filed earlier than ELC No. E023 of 2024, the Plaintiff slept on its rights and did not serve the 1st Defendant/Applicant with the summons and pleadings until 15th May 2024 by which time the 1st Defendant/Applicant had filed and served the Plaintiff with summons and pleadings in ELC No. E023 of 2024.xvii.He had seen an affidavit of service sworn on 7th December, 2023 by the Plaintiff’s legal clerk, one Patrick Chirongo and more specifically Paragraph 3 thereof where he alleged to have called him on 13th October, 2023 and that he switched off his phone and refused to pick calls. The said allegation were not truebecause of the following reasons:-a.Patrick Chirongo did not call him on 13th October 2023 and/or on any subsequent date.b.He was advised by Mr. Willis Oluga Advocate that service through whatsapp was now acceptable. Patrick Chirongo should have served him through WhatsApp assuming it was true that he declined to receive his call.c.As far as service of documents was concerned, Patrick Chirongo and his employer EACC were not new to him. They had previously served him with letters and court documents and they knew where to find him. For instance, they served him with summons in the case of “ELC E044 of 2022: EACC – Versus - Milly Glass Works Limited & Another” and he accepted service. Further, EACC had previously served him with letter relating to this very suit property. For them to now allege that they were looking for him through phone was not true because they knew his physical location. Annexed in the affidavit and marked as ‘MR – 8” was a true copy of the Affidavit of Service sworn on 7th December, 2023 by Patrick Chirongo.xviii.Further and in addition to what he had stated in the above paragraph, the Plaintiff was aware all along that for purposes of the suit property in dispute, the 1st Defendant/Applicant was being represented by the law firm of Messrs. Oluga & Company Advocates who engaged the Plaintiff in various correspondences on behalf of the 1st Defendant/Applicant. Mr. Willis O. Oluga, Advocate accompanied him to record statement at the Plaintiff's offices. Despite knowing that the 1st Defendant’s advocates for purposes hereof was Messrs. Oluga & Company Advocates, the Plaintiff never served the said firm until 15th May 2024 (see separate affidavit by Mr. Willis O. Oluga). Annexed and jointly marked as ‘MR - 9’ were true copies of the summons and plaint served on 15th May 2024.xix.In light of the foregoing, it was manifestly clear that the contents of the Affidavitof Service sworn on 7th December 2023 by Patrick Chirongo were not true hence the process server should be summoned to appear before this court for purposes of cross examination on the same.xx.The Plaintiff had never taken any serious steps in this suit since its filing in 2023 unlike the 1st Defendant/Applicant who has taken active and quick steps in ELC No. E023 of 2024 by serving the pleadings and taking court's directions whereupon the said case was scheduled for mention on 4th July 2024 to take the court’s further directions.xxi.The failure by the Plaintiff to serve summons in this case in good time necessitated and created room for the 1st Defendant/Applicant to file a separate suit (ELC No. E023 of 2024). The existence of the two suits had occasioned immense difficulty and prejudice for the 1st Defendant/Applicant who had to defend this suit and at the same time prosecute its own case.xxii.All the issues raised in this case were capable of being determined, resolved and disposed of successfully in ELC No. E023 of 2024 hence this suit should either be struck out, stayed or consolidated with ELC No. E023 of 2024.xxiii.The Plaintiff herein has perfected the art of indolence by prosecuting and pursuing the 1st Defendant/Applicant, 27 years after the 1st Defendant was allocated the suit property in the year 1997.xxiv.Further, the Plaintiff's indolence was manifested by the fact that the Plaintiff filed this suit in September 2023 and only served the 1st Defendant/Applicant with the summons and pleadings on 15th May, 2024.xxv.The Plaintiff did not serve the 1st Defendant/Applicant despite knowing where to find the 1st Defendant.xxvi.Further, the Plaintiff was aware that for purposes of the suit property, the 1st Defendant/Applicant had instructed the Law firm of Messrs. Oluga & company advocates to represent it but the Plaintiff deliberately failed to serve the said advocates.xxvii.The suit was statute barred since the 1st Defendant was allocated the suit property in the year 1997.xxviii.It was in the interest of justice that this application filed herewith be allowed and he urged the Honourable Court to allow the same.
III. The responses by the Plaintiff/Respondent
5.While opposing the applicationand the Plaint dated 28th June 2024, The Plaintiff/Respondent filed 14 paragraphed Grounds of Opposition dated 22nd July, 2024 on the following grounds:-a.The Application herein was frivolous, fatally incompetent, incurably defective, totally misconceived.b.The Application by the 1st Defendant/Applicant herein was an abuse of the due court process brought with intend to subject the Plaintiff/Respondent and this Honourable Court with unnecessary court processes and waste of court time and resources that could be utilized in proceeding for hearing and determination of the suit herein. The 1st Defendant/Applicant was trying to circumvent trial process wanting to summarily dismiss this suit without according the parties and this Honourable Court an opportunity to determine this case on merit.c.The Application herein was an afterthought filed after the Plaintiff/Respondent had filed a response to the 1st Defendant/Applicant suit “ELC No. E023 of 2024 - Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 others” and after serving this pleadings with intend to frustrate the Plaintiff/Applicant with numerous court processes waste the Plaintiff’s and this Honourable time and resources that would have otherwise been utilized to proceed with this case for hearing.d.The Application herein had not met the threshold for striking out and dismissal of suit as no reasonable and substantive grounds has been provided in support of the said ground.e.The Plaintiff/ Respondent filed this suit for recovery of property L.R. No. MN/1/10401 which the Plaintiff/Respondent established through investigations to be public land reserved for Government staff quarters to house staffs of 1st and 2nd Interested Party during its investigations.f.The Plaintiff/Respondent’s averred that investigations established that at all material times the suit has been occupied by staff of the 1st and 2nd Interested Parties who pay their rent through check off system and the said land has been managed and maintained by the 1st and Interested Parties and was therefore not available for allocation to the 1st Defendant/Applicant.g.The Plaintiff/Respondent averred that the issues in the Application can be raised in the Defence in respect therefore. The same cannot be canvassed summarily to dismiss this suit. It would be in the interest of justice to grant every party an opportunity to present their case in a full hearing.h.The 2nd Defendant/ Applicant and its Directors are fully aware of the outcome of this investigation through a demand notice that was issued to it and declined service of the same and instead proceeded to file “ELC No. E023 of 2024 - Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 others”. The Plaintiff/Respondent had been sued in that suit as the 5th Defendant.i.The 1st Defendant/Applicant in the “ELC No. E023 of 2024 - Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 others”, the Applicant challenges the outcome of investigations and claim current ownership. The 1st Defendant/Applicant further sought conservatory orders therein while knowing well that the Plaintiff/Respondent had filed the suit herein challenging the initial allocation process to current ownership by it.j.The Plaintiff/ Respondent averred that this suit having been filed first and having challenged the fraudulent allocation and acquisition of the suit property by the initial allottee to the 1st Defendant /Applicant, it would be prudent that “ELC No. E023 of 2024 - Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 others” was dismissed, and or stayed to pave way for the hearing and determination of this suit.k.The Plaintiff/Respondent invited this Honourable Court to review both cases extensively and dismiss this Application for lack of merit. The 1st Defendant/Applicant could be allowed to raise all the issues in the “ELC No. E023 of 2024 - Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 others” in this suit as part of the Defence.l.The Plaintiff/Respondent averred that interim orders issued by this Honourable Court in “ELC No. E023 of 2024 - Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 others” could not be used as a determinant for striking out this suit and or consolidating the same with the latter.m.The Plaintiff/ Respondent averred that the striking out and or dismissal of this suit and consolidating it with the “ELC No. E023 of 2024 - Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 others” would not only prejudice the efforts by the Plaintiff/Respondent to recover the suit property on behalf of the 1st and 2nd Interested Parties but also defeat the public interest and expectation of recovering public land that had been irregularly and illegally acquired.n.In view of the above the Plaintiff/Respondent prayed that the Application dated 28th June 2024 be dismissed with costs to the Plaintiff/Respondent as it lacked merit and do pave way for the hearing and determination of this suit on merit.
I. Submissions
6.On 1st October, 2024 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 28th June, 2024 be disposed of by way of written submissions. Unfortunately, by the time the Honourable Court was penning down this Ruling, it had not been able to access the written Submissions. Pursuant to that a ruling date was reserved on 31st January, 2025 by Court on its own merit accordingly.
V. Analysis & Determination.
7.I have carefully read and considered the pleadings herein by the 1st Defendant/Applicant, the relevant provisions of the Constitution of Kenya, 2010 and statures.
8.In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has four (4) framed issues for its determination. These are:-a.Whether the 1st Defendant has made out a case for striking out or dismissal of this suit?b.Whether this instant suit should be consolidated with Mombasa ELC No. E023 of 2024: Sampadoria Investments Limited v. National Water Harvesting and Storage Authority & 4 Others.c.Whether Patrick Chirongo can be summoned to appear before this court on a date appointed by the court for purposes of cross-examination on the contents of his Affidavit of Service sworn on 7th December 2023.d.Who will bear the Costs of Notice of Motion application dated 28th June, 2024.
Issue No. a). Whether the 1st Defendant has made out a case for striking out or dismissal of this suit
9.Under this Sub – heading, the Honourable Court will decipher on the substratum of whether or not to strike out this suit. The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. In the case of “Yaya Towers Limited – Versus - Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000)” the court expressed itself thus:-
10.Further, under the provision of Order 2 Rule 15 (1) of Civil Procedure Rules, 2010 provides as follows: -
11.The court must be cognizant of the fact that judicial time is precious and must not be wasted in engaging itself in academic exercises. Particularly so by hearing cases in a full trial where it is plain and obvious that a plaint discloses no reasonable cause of action or defence in law, where a plaint is scandalous, frivolous, vexatious, where a Plaint may prejudice, embarrass or delay the full trial of the action or where the Plaint is otherwise an abuse of the court process.
12.It cannot be gainsaid that striking out of pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham. The Court of Appeal in the case of:- “Blue Shield Insurance Company Limited – Versus - Joseph Mboya Oguttu [2009] eKLR” restated these principles thus:-
13.This Court has carefully considered the pleadings by both parties. In the process, I have noted that analysing the suit has the potential of this court combing through the evidence which the Defendants/Applicants wish to rely upon to determine whether or not they had disclosed a reasonable cause of action. For this reason stated above, I find the ground of striking out of the suit unmerited.
Issue No. b). Whether this instant suit should be consolidated with Mombasa ELC No. E023 of 2024: Sampadoria Investments Limited v. National Water Harvesting and Storage Authority & 4 Others.
14.Under this sub – heading, the main issue for consideration is on the consolidation of these two suits as pleaded per excellence. Accordingly, the jurisdiction to consolidate suits is donated by the provision of Section 81 (2) (h) of the Civil Procedure Act, Cap. 21 and Order 11 Rule 3 of the Civil Procedure Rules, 2010. In the case of “Prem Lala Nahata & Anor – Versus - Chandi Prasad Sikaria [2007] 2 Supreme Court Cases 551”, the India Supreme Court held:-
15.The Civil Procedure Rules, 2010 mandates courts are to consider consolidations of suit. In so doing, courts to be guided by the following three (3) legal parameters. These are:-a.Do the same question of law or fact arise in both cases?b.Do the rights or reliefs claimed in the two cases or more arise out of the same transaction or series of transactions?c.Will any party be disadvantaged or prejudiced or will consolidation confer undue advantage to the other party?
16.I will be considering these principles indepth herein below. In the meantime, I have taken judicial notice of the myriad of Court cases and the underlying guidelines enshrined thereof on the issue of Consolidation of cases. These include in the case of “Law Society of Kenya – Versus – The Centre for Human Rights & Democracy, Supreme Court of Kenya Petition No. 14 of 2013 the SOK held that:-
17.While Maraga J, as he then was, held in the case of:- “Municipal Council of Mombasa – Versus - Municipal Council of Mombasa [2004] eKLR that:-‘Consolidation is a process by which two or more suits or matters are by order of court combined or united and treated as one suit or matter. The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action.The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where:-1.some common question of law or fact arises in both or all of them; or2.the rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or3.for some other reason it is desirable to make an order for consolidating them.
18.Extrapolating the brief facts of the present case is imperative herein. It was instituted by the Plaintiff vide a Plaint dated 22nd September, 2023. The suit property in question was L - shaped delineated in the Development Plan No. CT/12/225/88/1 dated 15th January, 1988. Accordingly, the 1st Defendant/ Applicant filed a case seeking redress, to wit, “Mombasa ELC No. E023 of 2024: Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 Others (hereinafter “ELC No. E023 of 2024”)”. Annexed in the affidavit and marked as ‘MR - 6’ is a true copy of the Plaint. The subject of the said ELC No. E023 of 2024 was the property known as L.R No. MN/l/10401 which was also the subject of the instant suit.
19.The said ELC No. E023 of 2024 was currently active before this court and the same sought to determine ownership of the suit property which ownership is what the Plaintiff challenging in this suit. This suit will automatically not only be defeated, rendered superfluous but otoise should the court make a finding in ELC No. E023 of 2024 that the 1st Defendant was the legal owner of the suit property. Whereas, from the face value the suit properties in these two suits appear, when the court conducted a dipper dive on them it has been relieved to court, they are one and the same thing property.
20.Further the Plaintiff/Respondent contended that it filed this suit for recovery of property L.R. No. MN/1/10401 which the Plaintiff/ Respondent established through investigations to be public land reserved for Government staff quarters to house staffs of 1st and 2nd Interested Party during its investigations. The Plaintiff/Respondent’s averred that investigations established that at all material times the suit has been occupied by staff of the 1st and 2nd Interested Parties who pay their rent through check off system and the said land has been managed and maintained by the 1st and Interested Parties and was therefore not available for allocation to the 1st Defendant/Applicant. The Plaintiff/Respondent averred that the issues in the Application can be raised in the Defence in respect therefore. The same cannot be canvassed summarily to dismiss this suit. It would be in the interest of justice to grant every party an opportunity to present their case in a full hearing.
21.Ideally, consolidation of suits will be ordered if there is a common question of law or fact in the suits, the reliefs or rights sought arise from the same or a series of transactions, or for any other reason such as for convenience, avoiding multiplicity of suits, expedition and in order to meet the overriding objective set out in the Civil Procedure Act, Cap 21 Laws of Kenya. See the case of “John Gakure & 148 Others – Versus - Dawa Pharmaceuticals Company Limited CA 299 of 2007”.
22.As regards the opposition to the application that the suits are at different stages of trial, that per se cannot be a bar to an order for consolidation. I take judicial notice that none of these suits have been heard. Thus, the issue of any party suffering any prejudice or being disadvantaged by the consolidation does not arise at all. Though, there are circumstances whereby part heard cases may still be consolidated. In the case of:- “Benson G. Mutahi – Versus - Raphael Gichove Munene Kabutu & 4 Others [2014] eKLR”, the court held: -
23.The provision of Article 159 dictates that justice should be dispensed without undue delay as well as well as the overriding objective of the Civil Procedure Act, Cap. 21 calls for the consolidation of these suits. Further there is an indication that the said consolidation of the suits would save time and meet the overriding objective of ensuring the just, expeditious, proportionate and affordable resolution of civil dispute as enshrined under the provision Sections 1A and 1B of the Civil Procedure Act, cap 21, sections 3 and 13 of the Environment & Land Act, No 19 of 2011, Sections 101 of the Land Registration Act, No 3 of 2012, section 150 of the Land Act, No 6 of 2012 and Articles 159 (1) & (2) of the Constitution of Kenya, 2010. In my view, the court is called to determine the same questions of law and facts on similar suit lands between the same parties, most importantly the documents that will be relied on, during trial are likely to be the same. This is a ripe case for consolidation and this court has broad discretion to order for consolidation of suits, where the issues, witnesses and evidence to be presented are found to be similar and proceed to determine the rights of all parties together.
24.From these cases and precedents, the legal ratio and holdings are that, the essence of consolidation essentially are:-a.to facilitate the efficient and expeditious disposal of disputes andb.to provide a framework for a fair and impartial dispensation of justice to the parties. At all costs and as a matter of principles, consolidation of cases should never be meant to confer any undue advantage upon the party nor should it be intended to occasion any disadvantage towards the party that opposes it.
25.Based on the guidance by the Civil Procedure Rules, these cases in my view are proper and typical ones to be considered for consolidation. Therefore, the Court finds that where the suit lands are similar in both suits, the orders that will be issued will affect them equally and it is only logical that the same were consolidated. The prayer sought succeeds.
Issue No. c). Whether Patrick Chirongo can be summoned to appear before this court on a date appointed by the court for purposes of cross-examination on the contents of his Affidavit of Service sworn on 7th December 2023
26.Under this sub title there is a chronology of events before we examine whether or not this court can summon to appear before this court on a date appointed by the court for purposes of cross-examination on the contents of his Affidavit of Service sworn on 7th December 2023. I have re-evaluated the above material and now render the following view. The procedure for service of summons is clearly set out under Order 5 of the Civil Procedure Rules (“the Rules”). Rule 8 of the said Order specifically provides for personal service or service through the relevant defendant’s agent. Order 5 Rule 9 of Civil Procedure Rules is very clear on the manner in which service should be effected upon a Defendant in a suit. This rule requires that service should be made on the Defendant in person unless he has an agent empowered to accept service.
27.There is conflicting affidavit evidence regarding whether or not the Applicant was served with the summons and the Plaint in this case. This conflict could only have been resolved by the cross-examination of the Respondent’s material witness, that is the Process Server who alleges to have served the Applicant with the processes. The provision of Order 5, Rule 16 of the Rules expresses thus:-
28.My understanding of the above provision is that a court of law has the discretion to call for the examination of a process server where there is doubt as to whether service was properly effected. There is nothing compelling a court to summon a process server for examination and it lies purely with the court’s discretion to decide whether or not to apply the said provision.
29.Further, the provision of Order 19 Rules 1 & 2 of the Civil Procedure Rules, 2010 states:
30.Allowing cross-examination on an affidavit and documents drafted and filed is a matter of discretion, and cross-examination should be avoided unless exceptional circumstances exist. Any party wishing to cross-examine a deponent must convince the court that the cross-examination is justified. Given that Order 19 permits the use of affidavits as evidence, courts should avoid allowing cross-examination of the deponent's affidavits unless the circumstances merit it. Additionally, this action may result in increased costs due to cross-examination during interlocutory proceedings and unduly prolonging the suit, which is not envisioned in under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21.
31.In the case of:- “Republic – Versus - Kenya Revenue Authority Ex - Parte, Althaus Management & Consultancy Ltd [2015] eKLR”, the Court stated:-
32.The law has allowed evidence to be proved by way of affidavits under Order 19. But under Rule 2 of the said Order, the Court may order a deponent of an Affidavit to attend court to be cross-examined. In as much as this Court is not a document examiner as per the rules of evidence, Section 48 of the Evidence Act, Cap. 80. Hence, this court is of the view that the prayer for cross-examination of the Process Server at this point is warranted and therefore this prayer is merited.
ISSUE No. d). Who will bear the Costs of Notice of Motion application dated 28th June, 2024.
33.It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh” eKLR (2014) and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, eKLR (2014).
34.In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In this case, this Honourable Court has reserved its discretion in not awarding costs.
VI. Conclusion & Disposition
35.In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interest as regards to balance of convenience. Ultimately in view of the foregoing detailed and expansive analysis to the application, this court arrives at the following decision and makes the following orders:-a.That the Notice of Motion application dated 28th June, 2023 be and is hereby partially found to have merit hence hereby allowed, strictly in respect to prayers 3 and 5.b.That an order be and is hereby made consolidating Mombasa ELC No. E023 of 2024: Sampadoria Investments Limited – Versus - National Water Harvesting and Storage Authority & 4 Others and ELC Case No. E023 OF 2023: Ethics and Anti – Corruption Commission – Versus - Sampadoria Investments Limited & Others.c.That an order do and is hereby made in adherence to prayer (b) ELC Case No. E023 OF 2023: Ethics and Anti – Corruption Commission – Versus - Sampadoria Investments Limited & Others being the suit was filed first will be the lead file.d.That an order do and is hereby made summoning Patrick Chirongo, the Plaintiff’s legal clerk to appear before this Court on a date to be determined by Court on 3rd February, 2025 by Hon. Mr. Justice Olola for purposes of conducting the Cross - Examination on the contents of his Affidavit of Service sworn on 7th December 2023.e.That there shall be no orders as to costs.IT IS SO ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICROSOFT TEAM VIRTUAL, MEANS SIGNED AND DATED AT MOMBASA THIS …….31ST ….………DAY OF ……………JANUARY.…………..……..2025.……..…….………….…………….HON. MR. JUSTICE L. L. NAIKUNIENVIRONMENT AND LAND COURT ATMOMBASARuling delivered in the presence of:a. M/s. Firdaus Mbula, the Court Assistant.b. No appearance for the Plaintiff/Respondent.c. Mr. Kilonzo Advocate for the 1st Defendant/Applicant.d. No appearance for the 2nd, 3rd & 4th Defendants/Respondents; 1st, 2nd & 3rd Interested Parties,