Njoroge (Suing as a Co-Administrator of the Estate of the Late Margaret Wanjiru Njoroge) v Middle East Africa Auto Spares Limited & another; Njoroge & another (Interested Parties) (Tribunal Case E293 of 2025) [2025] KEBPRT 408 (KLR) (12 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 408 (KLR)
Republic of Kenya
Tribunal Case E293 of 2025
Gakuhi Chege, Chair & J Osodo, Member
September 12, 2025
Between
Francis Mungai Njoroge (Suing as a Co-Administrator of the Estate of the late Margaret Wanjiru Njoroge)
Landlord
and
Middle East Africa Auto Spares Limited
1st Tenant
David Njonjo Waiharo
2nd Tenant
and
Humphrey Gitau Njoroge
Interested Party
Norbert Waithari Njoroge
Interested Party
Ruling
A Background
1.The dispute before this Tribunal emanates from a Reference filed by the Landlord, Francis Mungai Njoroge, suing as a co-administrator of the Estate of the late Margaret Wanjiru Njoroge.
2.The Landlord accuses the Tenants of failing to remit rent due to him, alleging arrears of Kshs 4,050,000/=, and further seeks orders for the deposit of Kshs 14,008,676/= into a joint interest account. He also prays for interest, leave to levy distress, and termination of tenancy with eviction of the Tenants.
3.The Interested Parties, being siblings of the Landlord and beneficiaries of the estate, have equally filed their responses. The 1st Interested Party sides with the Tenants, while the 2nd Interested Party partially agrees with the Landlord but suggests independent rent management.
4.The pleadings reveal a long-standing history of litigation between the same parties spanning across the High Court, the Environment and Land Court, Tribunal, and the Criminal courts. The Tenants contend that the suit property is leased to them under a further lease of 25 years executed on 29th December 2008, which the Landlord disputes as fraudulent.
5.Criminal charges are pending before the Makadara Law Courts in respect of this lease. Additionally, there exists Environment and Land Court Case No. E165 of 2024 challenging the validity of the lease. In Succession Cause No. 1857 of 2012, the High Court directed that rent be shared equally among all beneficiaries pending distribution of the estate.
B. Pleadings by the Landlord
6.The Landlord relies on documents filed with his Reference, including the original lease dated 2nd May 2006, the death certificate of his late mother, the grant of letters of administration, and the valuation report of 14th July 2023. He asserts that the further lease of 29th December 2008 is a forgery since it purports to have been executed after the death of the lessor. He cites persistent non-payment of his rightful share of rent and seeks intervention of this Tribunal.
C. Response by the Tenants
7.The 2nd Tenant, David Njonjo Waiharo, swore a detailed replying affidavit in opposition to the Application. He avers that the 2008 lease was properly executed pursuant to an agreement of 10th August 2008 between the lessor and himself, and that the Land Registrar confirmed its authenticity. He annexed correspondence from the Registrar of Titles and deposit slips showing payments of rent to all beneficiaries, including the Landlord. He further contends that the matters raised are already before the ELC and criminal courts, and thus sub judice.
D. Positions of Interested Parties
8.The 1st Interested Party, Humphrey Gitau Njoroge, being a co-administrator of the estate, acknowledges receipt of rent from the tenants and confirms the 2008 agreement to extend the lease for 25 years. He swore an affidavit emphasising that the estate benefitted from advances by the 2nd Tenant and that eviction is unjustified. The 2nd Interested Party, Norbert Waithari Njoroge, however, disputes the Landlord’s arithmetic and advocates for appointment of a neutral rent collection agent to avoid intra-family conflict.
E. Issues for Determination
9.Having considered the pleadings, affidavits, documents and submissions, the Tribunal distils the following issues for determination:a.Whether this Tribunal has jurisdiction to entertain the dispute in view of the pending proceedings before the ELC and the Criminal courts.b.Whether the Landlord has proved entitlement to arrears of Kshs 4,050,000/= and the claimed deposit of Kshs 14,008,676/=.c.Whether orders for distress, termination of tenancy and eviction are merited.d.What orders should be made as to costs.
F. Legal Analysis
10.The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) at Section 12 empowers the Tribunal to investigate complaints and make orders regarding controlled tenancies. However, this jurisdiction must be read subject to Section 6 of the Civil Procedure Act which provides:
11.The Court of Appeal in Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR emphasized that:
12.In Republic v Business Premises Rent Tribunal & Another ex parte Margaret Njoki Kamau [2021] eKLR, the High Court held that the Tribunal cannot assume jurisdiction to determine allegations of forgery or questions of title. The Tribunal’s role is limited to tenancy disputes within the meaning of Cap 301.
13.Similarly, in Saheb v Hassanally [1980] KLR 13, the Court observed:
14.The Tribunal has carefully weighed the competing positions. The Landlord has established that he has not received his full share of rent since 2016. However, the tenants have adduced evidence of compliance with the High Court’s ruling of 29th February 2016 in Succession Cause No. 1857 of 2012, which directed that rent be shared equally pending distribution of the estate. The Landlord’s claim of forgery of the 2008 lease is a matter already pending before the ELC and Makadara Law Courts. It is not for this Tribunal to adjudicate on allegations of fraud or the validity of registered instruments.
15.Entertaining the Landlord’s application risks rendering conflicting determinations with the ELC and Criminal courts. Applying Section 6 of the Civil Procedure Act and guided by Thiba Min Hydro case, this Tribunal must refrain from assuming jurisdiction where parallel proceedings subsist. While the Landlord’s grievances are genuine, the proper forum is the ELC and the succession court.
G. Conclusion & Orders
16.For the foregoing reasons, the Tribunal finds that the Reference and Application filed by the Landlord are barred by the doctrine of sub judice. The reliefs sought, including arrears, deposits, distress and eviction, are inseparable from issues pending determination before superior courts. Accordingly, this Tribunal down its tools.
17.In view of the foregoing, the following final orders commend to us in this case: -a.The Reference and Application dated 20th March 2025 are hereby dismissed.b.The Applicant shall bear the costs of the case to be taxed by the Tribunal’s Deputy Registrar on application.c.Parties are directed to pursue their claims in the Environment and Land Court and the pending succession proceedings.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF SEPTEMBER 2025HON. GAKUHI CHEGE- (PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO - (PANEL MEMBER)In the presence of: -Mwangi for landlordSimiyu for tenants