Michael Chole Lugalia (suing as administrator of the estate of Ezekiel Majani Lugalia) v Jonathan Ligure Ayodi [2016] KEELC 911 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the defendant was a protected (controlled) tenant within Cap 301
Yes - acceptance of rent after termination converted the tenancy into a month-to-month periodic tenancy, an unwritten controlled tenancy protected under Cap 301
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.
Whether the plaintiff had capacity to sue alone as one of four co-administrators
No - administrators act jointly, and a suit filed by one without the others is incompetent
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.
Whether the court could entertain the suit notwithstanding the BPRT's jurisdiction
No - the court lacks jurisdiction over disputes concerning a controlled tenancy
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.
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.The preliminary objection on both grounds is upheld
- 2.The entire suit is struck out
- 3.Costs to the Defendant
- 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.