Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) (Civ) (9 November 2021) (Ruling)

Omoke v Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR) (Civ) (9 November 2021) (Ruling) Neutral citation: [2021] KESC 27 (KLR) Republic of Kenya In the Supreme Court of Kenya Civil Petition 11 (E015) of 2021 PM Mwilu, DCJ & VP, MK Ibrahim, N Ndungu, I Lenaola & W Ouko, SCJJ November 9, 2021 Between Morara Omoke Appellant and Uhuru Muigai Kenyatta 1st Respondent Raila Amolo Odinga 2nd Respondent Steering Committee on The Implementation of The Building Bridges to A United Kenya Task Force Report (BBI Steering Committee) 3rd Respondent Building Bridges to A United Kenya, National Secretariat (BBI Secretariat) 4th Respondent Attorney General 5th Respondent David Ndii 6th Respondent Jerotich Seii 7th Respondent James Gondi 8th Respondent Wanjiru Gikonyo 9th Respondent Ikal Angelei 10th Respondent Thirdway Alliance Kenya 11th Respondent Miruru Waweru 12th Respondent Angela Mwikali 13th Respondent Public Service Commission 14th Respondent Auditor General 15th Respondent National Executive 16th Respondent Speaker of The Senate 17th Respondent Senate 18th Respondent Speaker of The National Assembly 19th Respondent National Assembly 20th Respondent County Assembly of Mombasa 21st Respondent County Assembly of Kwale 22nd Respondent County Assembly of Kilifi 23rd Respondent County Assembly of Tana River 24th 24th Respondent County Assembly of Lamu 25th Respondent County Assembly of Taita-Taveta 26th Respondent County Assembly of Garisa 27th Respondent County Assembly of Wajir 28th Respondent County Assembly of Mandera 29th Respondent County Assembly of Marsabit 30th Respondent County Assembly of Isiolo 31st Respondent County Assembly of Meru 32nd Respondent County Assembly of Tharaka-Nithi 33rd Respondent County Assembly of Embu 34th Respondent County Assembly of Kitui 35th Respondent County Assembly of Machakos 36th Respondent County Assembly of Makueni 37th Respondent County Assembly of Nyandarua 38th Respondent County Assembly of Nyeri 39th Respondent County Assembly of Kirinyaga 40th Respondent County Assembly of Murang’a 41st Respondent County Assembly of Kiambu 42nd Respondent County Assembly of Turkana 43rd Respondent County Assembly of West Pokot 44th Respondent County Assembly of Samburu 45th Respondent County Assembly of Trans Nzoia 46th Respondent County Assembly of Uasin Gishu 47th Respondent County Assembly of Elgeyo/Marakwet 48th Respondent County Assembly of Nandi 49th Respondent County Assembly of Baringo 50th Respondent County Assembly of Laikipia 51st Respondent County Assembly of Nakuru 52nd Respondent County Assembly of Narok 53rd Respondent County Assembly of Kajiado 54th Respondent County Assembly of Kericho 55th Respondent County Assembly of Bomet 56th Respondent County Assembly of Kakamega 57th Respondent County Assembly of Vihiga 58th Respondent County Assembly of Bungoma 59th Respondent County Assembly of Busia 60th Respondent County Assembly of Siaya 61st Respondent County Assembly of Kisumu 62nd Respondent County Assembly of Homa Bay 63rd Respondent County Assembly of Migori 64th Respondent County Assembly of Kisii 65th Respondent County Assembly of Nyamira 66th Respondent County Assembly of Nairobi 67th Respondent Justus Juma 68th Respondent Isaac Ogola 69th Respondent Isaac Aluochier 70th Respondent Duncan Ojwang’ 71st Respondent John Osogo Ambani 72nd Respondent Linda Musumba 73rd Respondent Jack Mwimali 74th Respondent Kenya Human Rights Commission 75th Respondent Migai Akech 76th Respondent Charles Manga Fombad 77th Respondent Muslims for Human Rights (Muhuri) 78th Respondent Kituo cha Sheria 79th Respondent Kenya National Union of Nurses 80th Respondent Independent Electoral and Boundaries Commission 81st Respondent Building Bridges to A United Kenya Task Force (BBI Taskforce) 82nd Respondent Phylister Wakesho 83rd Respondent 254 Hope 84th Respondent (An application seeking the consolidation of Petition No 11(E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No.13 (E018) of 2021) Factors considered by the Supreme Court in determining whether to consolidate matters _The application sought court orders for the consolidation of Petition No. 11 (E015) of 2021, Petition No. 12 (E016) of 2021 and Petition No. 13 (E18) of 2021 and for the filing of responses to the consolidated petition. The grounds for the orders sought were that the three petitions had the same subject matter, raised similar issues of law and arose from the same set of facts. The court cited rule 21 of the Supreme Court Rules 2020 and held that consolidation of suits or appeals would be ordered where there were common issues of law or fact in the suits or appeals or where it was desirable for related matters to be disposed of at the same time. In allowing the application the court made the determination that the application met the threshold for consolidation of suits._ Reported by Ribia John **_Civil Practice and Procedure_** _– suits - consolidation of suits – factors to consider when consolidating suits – purpose of consolidation of suits - factors considered by the Supreme Court when determining whether to consolidate matters – Supreme Court Rules, 2021, rule 21._ Brief facts The 71st, 72nd and 73rd respondents (the applicants) sought 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. They contended that all three petitions involved the same subject matter, raised similar issues of law, and arose from the same set of facts, and considering the number of parties involved, there was likelihood of duplication and disharmony in the submissions if leave for consolidation was not granted. Issues What factors did the Supreme Court consider when determining whether to consolidate matters? Held 1. The jurisdiction to consolidate appeals in the Supreme Court was conferred by rule 21 of the Supreme Court Rules, 2020, which stipulated that the court could, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings were similar, order that the proceedings be consolidated, on such terms as the court could determine. Consolidation of suits or appeals would be ordered where there were common questions of either law or fact in two or more suits or appeals and where it was desirable that all the related matters be disposed of at the same time. 2. Through consolidation, costs, time and other resources were saved and multiplicity of proceedings avoided. All the three petitions before the court arose from the same set of facts; the same subject matter; they raised similar issues of law; involved the same parties who were before the two Superior Courts below and ensued from the same judgment. Further, the application was not opposed in substance. 3. The instant application had met the threshold for consolidation and Petition No. 12 of 2021 (E016) of 2021, _Attorney General vs David Ndii & 73 Others_, encapsulated 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 raised only one question. 4. The order of precedence, proceedings and presentation of arguments in the petitions would be determined on November 9, 2021 during the mention for directions by the Supreme Court. _Application allowed._ Orders 1. _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, were to be consolidated._ 2. _Petition No 12 (E016) of 2021, The Attorney General vs. David Ndii & 73 Others would serve as the lead file in the proceedings and parties who had been omitted in it, for example, 74th respondent, Dr. Jack Mwimali and 78th respondent, Muslims for Human Rights (MUHURI) were to be included._ 3. _No orders as to costs._ Citations **Cases** 1. David Ojwang’ Okebe v South Nyanza Sugar Company Limited (Civil Appeal (Application) 139 of 2008, [2009] eKLR) — Mentioned 2. Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others (SC Petition No. 14 of 2013, [2014] eKLR) — Mentioned 3. Atlantic States Legal Foundation Inc v Koch Refining Co (681 F. Supp 609, 615 (D. Minn. 1988)) — Mentioned **Statutes** 1. Supreme Court Rules (2020) — Rule 21 — Interpreted AdvocatesNone mentioned Ruling [1]Before us is a notice of motion dated October 7, 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 [2]Upon perusing the affidavit of Dr Duncan Oburu Ojwang sworn on behalf of the applicants in support of the motion on the October 7, 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 [3]Further, noting that in an affidavit dated October 14, 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 HE 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 [4]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 [5]Further, noting that the appellant in a supplementary affidavit, dated October 20, 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 [6]Upon considering the applicant’s written submissions dated October 7, 2021, filed on the same date, citing rule 21 of the Supreme Court Rules 2020, and the court’s decisions in [Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others](/akn/ke/judgment/kesc/2014/18), SC Petition No 14 of 2013, [2014] eKLR and [David Ojwang’ Okebe v South Nyanza Sugar Company Limited](/akn/ke/judgment/keca/2009/229), Civil Appeal (Application) 139 of 2008, [2009] eKLR as authorities for consolidation of appeals before this court; and considering also a replying affidavit filed on behalf of the Independent Electoral and Boundaries Commission on October 19, 2021; and [7]Upon further evaluation of those submissions and applying the convenience test enunciated in the case of [Atlantic States Legal Foundation Inc v Koch Refining Co](https://law.justia.com/cases/federal/district-courts/FSupp/681/609/1800343/) 681 F Supp 609, 615 (D Minn 1988 to the effect that in considering whether or not to consolidate cases, it is of paramount importance for the court to weigh the cost, time, effort and judicial resources involved. [8]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;“The court may, upon application by any party or on its own motion, where satisfied that the issues involved in any two or more proceedings are similar, order that the proceedings be—a.consolidated, on such terms as the Court may determine…”.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, [2014] eKLR, that:“The essence of consolidation 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.”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. [9]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 HE 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, DrJack 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 NDUNGU****JUSTICE OF THE SUPREME COURT****.............................****I. LENAOLA****JUSTICE OF THE SUPREME COURT****.............................****W. OUKO****JUSTICE OF THE SUPREME COURT****I certify that this is a****true copy of the original****REGISTRAR** _**SUPREME COURT OF KENYA**_