[2025] KEBPRT 167 (KLR)

Mwaura v Onsinyo & 4 others; Ochola (Interested Party); Mamalo Auctioneers (Third party) (Tribunal Case E535 of 2022) [2025] KEBPRT 167 (KLR) (6 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 167 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E535 of 2022

A Muma, Member

March 6, 2025

Between

Francis Njuguna Mwaura

Landlord

and

Kevin Momanyi Onsinyo

1st Tenant

Patrick Maina

2nd Tenant

Victoria Kamengere Kimatu

3rd Tenant

Paul Mwangi Kimani

4th Tenant

Anthony Mugendi

5th Tenant

and

Nicholas Okinyi Ochola

Interested Party

and

Mamalo Auctioneers

Third party

Ruling

A. Parties and their Representatives 1. The Landlord, Francis Mwaura has let out business premises at the property known as L.R No. 209/6829 (PART) Makongeni Estate, Nairobi (hereinafter referred to as “suit premises”).

2. The Firm of M/S Kiaritha, Mwenda and Associates appears for the Landlord.

3. The Interested Party/Applicant, Nicholas Okinyi (hereinafter referred to as “the Applicant”) has not been in occupation of the premises.

4. The firm of M/S Otieno Justus & Company Advocates is on record for the Applicant.

B. Background of the Case 5. The Applicant approached this Tribunal vide a Noice of Motion under a Certificate of Urgency dated 5th November 2024 seeking inter alia that Orders of this Court dated 5th November 2024 be reviewed and a stay of sale by auction of the Applicant’s furniture.

6. Consequently, this Tribunal issued an Order dated 6th November 2024 marking the Application urgent and an order staying sale by auction of the Applicant’s furniture pending the hearing and determination of the subject Application. Further, this Court ordered that this matter be listed for hearing on 4th December 2024.

7. In opposition to the Tenant’s Reference and Application, the Landlord filed a Notice of Preliminary Objection dated 18th November 2024 on the grounds that this Tribunal lacks jurisdiction to hear and determine the Application dated 5th November 2024 since the Application is sub-judice to the proceedings in MCCC/E6371/2024: Nicholas Okinyi Ochola V Francis Mwaura & Mamalo Auctioneers.

C. Landlord’s Case 8. The Landlord submitted that the current Application ought to be dismissed as there is another suit in MCCC/E6371/2024 where the same Applicant has filed another similar Application and a main suit Nicholas Okinyi Ochola V Francis Mwaura & Mamalo Auctioneers.

9. The Landlord further submitted that the orders sought in MCCC/E6371/2024 and the ones sought in the present suit are similar and the parties are the same hence the suits should not run concurrently.

10. The Landlord submitted that the suit is defective and that the Interested Party should have filed Objection Proceedings to claim his goods.

D. Interested Party’s Case 11. The Interested Party avers that the matter before it is between Francis Njuguna Mwaura v. Kevin Momanyi Onsinyo, Patrick Maina, Victoria Kamengere Kimatu, Paul Mwangi Kimani, Anthony Mugendi while the matter in MCCC/E6371/2024 is between Nicholas Okinyi Ochola and Francis Mwaura & Mamalo Auctioneers.

12. The Interested Party avers that the matters are separate and distinct in both prayers and parties hence they should be heard and determined separately.

13. The Interested Party, therefore, asked the court to dismiss the Landlord’s Notice of Preliminary Objection dated 18th November 2024 and set down for hearing his Application dated 5th November 2024.

E. Issues for Determination 14. Having carefully perused the Application, Notice of Preliminary Objection and Responses presented by parties, it is therefore my respectful finding that the sole issue for determination before this honorable tribunal is:Whether this suit is sub-judice in light of MCCC/E6371/2024: Nicholas Okinyi Ochola V Francis Mwaura & Mamalo Auctioneers.

F. Analysis and Determination 15. The doctrine of sub-judice is premised in Section 6 of the Civil Procedure Act which provides as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

16. The Supreme Court in the Case of Kenya National Commission on Human Rights vs AG & 16 Others (Interested Parties) [2020] eKLR at paragraph 67 of their Ruling stated thus regarding sub-judice: -“The term “sub-judice” is defined in Black’s Law Dictionary 9th Edition as:“Before the Court or Judge for determination”. The purpose of the sub-judice rule is to stop filing of multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of Courts with competent jurisdiction issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before Court with jurisdiction the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. The party that seeks to invoke the doctrine of sub-judice must therefore establish that there is more than one suit over the same subject matter, that one suit was instituted before the other, that both suits are pending before Courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

17. In Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR, the Court stated that;“…… for the doctrine of sub judice to apply the following principles ought to be present:-(a)There must exist two or more suits filed consecutively; (b) The matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title, the suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

18. In the instant case, there are two suits i.e. the present suit BPRT Case No. E535 of 2022 and MCCC/E6371/2024. The BPRT Case No. E535 of 2022 was filed by the Interested Party against the Landlord and Mamalo Auctioneers who are similar parties in MCCC/6371/2024. In both suits the parties are litigating under the same titles.

19. The matter in issue in these two suits is attachment of furniture of the Interested party who is not a Tenant of the Landlord. also similar in these two cases. Both suits arise from the same cause of action which attachment of properties of the Interested Party who is not a tenant of the Landlord.

20. The Tribunal thus finds that the present suit is sub-judice as there is an ongoing suit on the subject matter and between the parties, being: MCCC/E6371/2024: Nicholas Okinyi Ochola V Francis Mwaura & Mamalo Auctioneers.

*G. Orders 21. In the upshot, it is my considered view that the Notice of Preliminary Objection dated 18th November 2024 is of merit and is hereby allowed. The Applicant cannot have his cake and eat it. He ought to pursue remedies in one forum and not forum shop.

22. In the circumstances, the following orders shall abide: -i.The Application dated 5th November 2024 is dismissed with costs.ii.30 days stay of execution is hereby granted as prayed.

HON A. MUMA - MEMBERBUSINESS PREMISES TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 6TH DAY OF MARCH 2025 IN THE PRESENCE OF OTIENO FOR THE IP N/A FOR THE FOR LANDLORD.HON A. MUMA - MEMBERBUSINESS PREMISESN TRIBUNAL