Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutLand Case No 154 of 2014· [2016] KEELC 911 (KLR)

Michael Chole Lugalia (suing as administrator of the estate of Ezekiel Majani Lugalia) v Jonathan Ligure Ayodi [2016] KEELC 911 (KLR)

Environment and Land Court
26 April 2016
1,486 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This Environment and Land Court at Kitale ruling determined a Notice of Preliminary Objection raised by the defendant, a former commercial tenant, against a suit by the plaintiff seeking eviction, rent arrears of Kshs 460,000 and mesne profits. The defendant's lease on premises within Kitale town terminated by effluxion of time on 30/1/2013, but he remained in possession and the estate continued to accept rent. Obaga J held that under s.60(2) of the Land Act acceptance of rent for over two months after termination deemed a periodic month-to-month lease into existence, which being unwritten constituted a controlled tenancy under s.2(1) of Cap 301 (Landlord and Tenant (Shops and Catering Establishments) Act). Disputes over such tenancies are for the Business Premises Rent Tribunal, so the ELC lacked jurisdiction. The court followed Justice Kasango's decision in Mombasa HCCC No 61 of 2013 (Jane Wangari). On the second ground, the plaintiff was one of four administrators granted letters on 31/7/2008; under s.82 of the Law of Succession Act administrators act jointly, and following Justice Gitumbi in Simon Kamau Muhindi and Justice Majanja's dictum in Republic v Nairobi City Council, the court held that one administrator cannot file suit alone for the estate, a defect not curable by Article 159. The court upheld the preliminary objection on both grounds and struck out the entire suit with costs to the defendant.

Key legal issues

#
01

Whether the defendant was a protected (controlled) tenant within Cap 301

Holding

Yes - acceptance of rent after termination converted the tenancy into a month-to-month periodic tenancy, an unwritten controlled tenancy protected under Cap 301

Reasoning

The written lease terminated by effluxion of time on 30/1/2013. The defendant remained in possession and continued paying rent, which the estate accepted. Under s.60(2) of the Land Act such acceptance over two months deems a periodic month-to-month lease to have come into force. Being unwritten, that tenancy falls within the definition of a controlled tenancy under s.2(1) of Cap 301, and disputes over it belong to the BPRT.

p. 2
02

Whether the plaintiff had capacity to sue alone as one of four co-administrators

Holding

No - administrators act jointly, and a suit filed by one without the others is incompetent

Reasoning

It was not contested that letters of administration were granted on 31/7/2008 to the plaintiff and three others. Section 82 of the Law of Succession Act vests in personal representatives the power to enforce causes of action surviving the deceased, and this power is exercised jointly. Following Justice Gitumbi's decision in Simon Kamau Muhindi and the quoted ruling of Justice Majanja, a single administrator cannot bind the estate or file suit alone. The defect is not curable under Article 159.

p. 3
03

Whether the court could entertain the suit notwithstanding the BPRT's jurisdiction

Holding

No - the court lacks jurisdiction over disputes concerning a controlled tenancy

Reasoning

Having found the defendant to be a protected tenant of a controlled tenancy under Cap 301, any dispute concerning the premises can only be dealt with by the Business Premises Rent Tribunal established under that Act. The court therefore found itself devoid of jurisdiction and agreed with the Kasango J decision in Jane Wangari.

p. 3

Legal principles established

#
  • Acceptance of rent from a tenant who remains in possession after termination of a lease creates a periodic lease from month to month, which where unwritten is a controlled tenancy whose disputes fall to the Business Premises Rent Tribunal
  • One administrator out of several lacks capacity to file suit alone on behalf of a deceased's estate; administrators act jointly at all times
  • Lack of authority of a sole plaintiff administrator cannot be cured as a procedural technicality under Article 159 of the Constitution

Court orders

#
  1. 1.The preliminary objection on both grounds is upheld
  2. 2.The entire suit is struck out
  3. 3.Costs to the Defendant

Authorities

#

Legislation

  • Landlord and Tenant (Shops and Catering Establishments) Acts 2(1)
  • Land Acts 60(2)
  • Law of Succession Acts 82 (Cap 160)
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Jane Wangari T/a Top in Town Dry Cleaners – vs – James Mutunga Mulinge T/a Califonia Dream Hotel
    Mombasa HCCC No 61 of 2013
  • Simon Kamau Muhindi (Suing as the administrator of the estate of Esther Nyokabi Muhindi – vs Monica Wambui Ngugi & another
    Milimani ELC No. 207 of 2013
  • Republic -vs- Nairobi City Council
    Misc Civil Application No 103 'b' of 2013
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction) as read with the Land Act and Cap 301 - the court found it lacked jurisdiction over a controlled tenancy dispute

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Michael Chole Lugalia (suing as administrator of the estate of Ezekiel Majani Lugalia) v Jonathan Ligure Ayodi [2016] KEELC 911 (KLR)", Case Analysis (2016). Land Case No 154 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/911/eng@2016-04-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.