Njenga v Houses and Plots Ltd & 4 others (Miscellaneous Application E680 of 2025) [2026] KEHC 11868 (KLR) (Commercial and Tax) (29 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & TAX DIVISION** **MISC. APPLICATION NO. E680 OF 2025** **CHRISTOPHER NJOROGE NJENGA............................................PLAINTIFF** **VERSUS** **HOUSES AND PLOTS LIMITED.............................................1ST DEFENDANT** **FRANK GITAU NJENGA.....................................................2ND DEFENDANT** **AND** **REGINA WANJIRU NJENGA.....................................1ST INTERESTED PARTY** **NANCY WAITHIRA WAWERU................................2ND INTERESTED PARTY** **VICKY NJAMBI LETEIPAN........................................3RD INTERESTED PARTY** **RULING** 1. The architecture of civil litigation is designed to resolve disputes with efficiency, precision, and finality. While the consolidation of suits often serves this overarching objective by preventing a multiplicity of proceedings, it is not a procedural panacea to be applied mechanically. A court must remain vigilant to ensure that conflating distinct causes of action involving different parties and distinct legal entities does not obscure the real issues for determination, thereby sacrificing justice at the altar of convenience. **Background Facts** 2. The Applicant filed the Notice of Motion dated 11th July 2025 seeking the following orders; 1. *THAT service of this Application be dispensed with in the first instance (spent);* 2. *THAT this Honourable Court be pleased to order the transfer of HCCOM E589 OF 2024 Christopher Njoroge Njenga vs. Houses and Plots Limited and Frank Gitau Njenga from the Commercial and Admiralty Division* *to the Honourable Family Court Division for the purpose of consolidation and hearing with Succession Cause E108 of 2024. In the matter of the Estate of the late Rahab Kabura Njenga;* 3. *The costs herein be costs in the cause.* 3. The Application was supported by the Affidavit of **Christopher Njoroge Njenga**. The Applicant contended that the parties in both suits are siblings born of the same parents. That the disputes in issue arise from matters concerning the estate of their late mother, **Rahab Kabura Njenga**. Both suits involve common questions of law and fact relating to the management and distribution of the estate, hence, making consolidation appropriate to ensure consistent adjudication, avoid the risk of conflicting decisions, and promote judicial economy. The consolidation and transfer of the suits will not occasion any prejudice or undue disadvantage to any of the parties. 4. The Applicant deposed that he instituted HCOMM E589 of 2024 on 30th September 2024 against his siblings and a family company in which the directors and shareholders comprise his siblings and their late mother, **Rahab Kabura Njenga**. The principal relief sought in that suit was to preserve the estate of the deceased and restrain any dealings therewith pending the determination of Succession Cause E108 of 2024. However, despite the pendency of the suit, the Respondents allegedly proceeded to distribute the estate pursuant to a purported written will. This prompted the Applicant to file a Summons for Revocation and/or Annulment of Grant of Probate on 15th April 2025. 5. Further, both HCOMM E589 of 2024 and Succession Cause E108 of 2024 involve substantially the same parties and revolve around the estate of the late **Rahab Kabura Njenga**. The deceased was not only the mother of all the parties but also a director and shareholder in the 1st Respondent Company. He contends that the issues in both matters are intertwined, involving the administration and distribution of the deceased's estate, and that the commercial suit has largely been overtaken by events. Accordingly, the Applicant urged the Court to consolidate the two proceedings to facilitate the efficient and comprehensive determination of all issues in dispute. 6. In response, the 2nd Respondent filed the Replying Affidavit of **Dr. Frank Gitau Njenga** sworn on 22nd September 2025. He stated that the Applicant has failed to establish any legal or factual basis to justify the transfer of the Commercial Suit to the Family Division. The Commercial Suit concerns the transfer and management of the 1st Defendant's shares in various family-owned companies, whereas the Succession Cause is limited to the administration and distribution of the deceased's estate. The two proceedings involve distinct subject matters and different parties, and any attempt to conflate them is misconceived and amounts to an abuse of the court process. The Applicant further misrepresented the nature of the Commercial Suit, whose prayers are confined to corporate governance issues and the transfer of the 1st Defendant's shares, rather than the distribution of the deceased's estate. 7. The Respondent further denied that any assets of the deceased's estate have been distributed, stating that the share transfers were undertaken solely pursuant to resolutions passed at a duly convened Extraordinary General Meeting and did not involve the deceased's own shares. The Applicant's allegations are unsupported, misleading, and contradicted by the documentary evidence, including the Plaint, EGM minutes, resolutions, and registered share transfer forms. Given that the Commercial Suit has already been overtaken by events, the application for its transfer and consolidation is frivolous, brought in bad faith, and constitutes an attempt to derail the succession proceedings through forum shopping. The Respondent therefore urged the Court to dismiss the application with costs. **Issues for determination** 8. Having carefully considered the Application, the response and the written submissions; the Court finds that the issue for determination is: 1. *Whether this suit should be transferred to the Family Court Division for the purpose of consolidation and hearing with Succession Cause E108 of 2024.* **Analysis** 9. The Applicant argued that the Commercial Suit and the Succession Cause are intrinsically connected because they both arise from the death of the late **Rahab Kabura** **Njenga** and the administration of assets associated with her estate. Further, the parties in both proceedings are the deceased's children, participating in the Commercial Suit in their capacity as shareholders of the 1st Defendant and in the Succession Cause as beneficiaries of the deceased's estate. 10. On the other hand, the Respondent contended that the Plaintiff has failed to establish any legal or factual basis to justify the transfer and consolidation of the Commercial Suit with the Succession Proceedings. This is because the two matters involve distinct causes of action, different parties, and no common questions of law or fact. The Commercial Suit concerns the disposition of the 1st Defendant's shareholding in the family-owned companies, which does not form part of the deceased's estate and has since been completed. On the other hand, the Succession Proceedings relate solely to the administration of the deceased's estate, including the challenge to the Will and the Grant of Probate. The Interested Parties in the Commercial Suit are not parties to the Succession Proceedings, making consolidation both impracticable and procedurally untenable. The Plaintiff's reliance on the deceased as the purported link between the two matters is misconceived and insufficient to establish the requisite nexus for transfer. Moreover, the Plaintiff has acknowledged that the Commercial Suit has been overtaken by events, rendering the present application academic, legally untenable, and a clear attempt to delay the succession proceedings through forum shopping. 11. In determining whether to grant an order for transfer and consolidation, this Court is guided by the established principles enunciated in **Joseph Okoyo v Edwin Dickson Wasunna [2014] eKLR**, and **Pacific Frontier Seas Ltd v Kyengo & another [2022] KECA 396 (KLR)**. 12. Guided by the above reasoning, the Court notes that the Commercial Suit concerns corporate governance and the disposition of the 1st Defendant's shareholding in family-owned companies. The 1st Defendant is a distinct corporate entity with a separate legal personality from its shareholders. Conversely, the Succession Cause is strictly limited to the administration and distribution of the deceased’s personal free estate. The causes of action are fundamentally distinct, and the presence of Interested Parties in the Commercial Suit who are not beneficiaries in the Succession Cause further misaligns the two matters. Consolidating a complex corporate governance dispute with a probate matter would undoubtedly obscure the real issues for determination and prejudice the expeditious disposal of both cases. 13. As stated above, only a family court has the power to distribute the shares of a deceased in a company. It is also undisputed that the deceased held shares in the Respondent company. 14. The Court also notes that the application calls for the exercise of discretion. The commercial suit has a date before **Honourable Lady Justice L. M. Wachira** on 17th September, 2026. The parties can make representations before the good Judge and disclose the existence of the Succession cause, so that no conflicting orders arise. 15. As matters stand, the Court is not persuaded that the order for transfer of the commercial suit to the Family Court would expedite the resolution of the commercial dispute. 16. The application is therefore devoid of merit and ought to be dismissed. 17. As to costs, the same ordinarily follow the event and lie at this Court’s discretion. The parties are siblings litigating over family businesses and assets. There will be no orders as to costs. **Determination** 18. The Court makes the following orders as regards the Applicant’s application by way of the Notice of Motion dated 11th July 2025: 1. *The Notice of Motion dated 11th July, 2025 is HEREBY dismissed for lack of merit.* 2. *There will be no orders as to costs.* 19. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 29TH DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: Miss Othieno for the Applicant. Mr. Karuti for the Respondent. Mr. John Paul - Court Assistant.