National Bank of Kenya v Dixon Odhiambo Obungu & another; Christine Oyoo Were (Suing as Administrators of the Estates of Zacharia Sunga Obungu and Samson Owili Were)

(a) Spent… (b) That pending the hearing and determination of the application, there be a stay of proceedings in Winam ELC Case No. E004 of 2024; (c) That Winam ELC Case No. E004 of 2024 be transferred to the Principal Magistrate’s Court at Nyando for hearing and final determination; (d) That upon transfer, Winam ELC Case No. E004 of 2024 be consolidated with Nyando ELC Case No. E004 of 2024; and (e) 2. That costs of the application be provided for. The application is supported by the affidavit of Onesmas K. Mbuvi sworn on 17th July 2026 and the annexures thereto. The gist of the Applicant’s case is that; both suits concern the same parcel of land, namely Kisumu/Ahero Market/3, the 1st Respondents (administrators of the estate of Zacharia Sunga Obungu) claim ownership and seek to restrain the Applicant from exercising its statutory power of sale and the 2nd Respondent (administrator of the estate of Samson Owili Were) equally claims ownership of the same parcel, asserts that the original ELC MISC. APPL. NO. E048 OF 2026 RULING Page 2

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Certificate of Lease is in her custody, and challenges the validity of the charge and the intended sale. 3. It is further averred that the parcel was charged to the Applicant by the late Samson Owili Were (or entities associated with him) and that it is entitled to exercise its statutory power of sale, the land is situate within Ahero Township, which falls within the territorial jurisdiction of the Nyando Law Courts, Winam ELC Case No. E004 of 2024 is fixed for hearing on 17th August 2026 while Nyando ELC Case No. E004 of 2024 is scheduled for mention on the same date and that parallel proceedings in two different courts over the same subject matter risk conflicting decisions and multiplicity of suits, contrary to the overriding objective under Sections 1A and 1B of the Civil Procedure Act. 4. The Respondents were duly served with the application but did not file any response to it. The application is therefore unopposed. Analysis and Determination 5. The Court has carefully application, the supporting ELC MISC. APPL. NO. E048 OF 2026 considered RULING affidavit, the the unopposed annexed Page 3

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pleadings from both subordinate courts, and the applicable law. 6. Section 18 of the Civil Procedure Act empowers this Court to transfer any suit from one subordinate court to another for any sufficient reason. The principles governing transfer and consolidation are well settled: the Court must consider the balance of convenience, the interests of justice, the risk of conflicting decisions, and whether the ends of justice will be better served by the transfer and consolidation (see Hangzhou Agrochemical Industries Ltd v Panda Flowers Ltd [2012] eKLR and David Kabungu v Zikarenga & 2 Others HC Misc. Appl. No. 36 of 1995). 7. It is not in dispute that both suits revolve around the same parcel of land and the same intended exercise of the statutory power of sale by the Applicant. The two sets of plaintiffs assert competing claims of ownership. The continued parallel prosecution of the two suits therefore creates a real and substantial risk of inconsistent findings on the fundamental issues of title, the validity of the charge, and the legality of the intended sale. ELC MISC. APPL. NO. E048 OF 2026 RULING Page 4

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8. The suit property is situate at Ahero Market. Nyando Law Courts is the court with territorial jurisdiction over the locality. Transfer of the Winam suit to Nyando will place both matters before the court best placed geographically and administratively to handle them. 9. Consolidation is equally warranted. The issues of law and fact in the two suits are substantially the same. Consolidation will avoid duplication of evidence, save judicial time and resources, and ensure that all competing claims are determined in one forum. 10. The Respondents will suffer no prejudice that cannot be compensated by costs or appropriate directions on the conduct of the consolidated suit. On the contrary, the interests of justice and the overriding objective strongly favour the orders sought. Disposition 11. In the result, the Court finds merit in the application and makes the following orders: i. Winam ELC Case No. E004 of 2024 is hereby transferred to the Principal Magistrate’s Court at Nyando for hearing and final determination. ELC MISC. APPL. NO. E048 OF 2026 RULING Page 5

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ii. Upon transfer, Winam ELC Case No. E004 of 2024 is hereby consolidated with Nyando ELC Case No. E004 of 2024. The consolidated suit shall proceed under the file number Nyando ELC Case No. E004 of 2024, with the parties in the Winam suit being joined as co-plaintiffs or as the Court at Nyando may direct for the orderly conduct of the proceedings. iii. The Deputy Registrar of this Court shall cause the original file of Winam ELC Case No. E004 of 2024 to be transmitted to the Principal Magistrate’s Court at Nyando within seven (7) days of this ruling. iv. Costs of this application shall be in the cause in the consolidated suit. v. This miscellaneous cause is hereby marked as closed. Orders accordingly. ELC MISC. APPL. NO. E048 OF 2026 RULING Page 6

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DATED, SIGNED AND DELIVERED VIRTUALLY/OPEN COURT AT KISUMU THIS 30TH DAY OF SEPTEMBER 2026. E. K. WABWOTO JUDGE In the presence of: N/Afor the Applicant. N/A for the Respondents. Court Assistant: Joanne Omondi. ELC MISC. APPL. NO. E048 OF 2026 RULING Page 7

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