Grace Wanjiru Githaiga & another (suing as legal Representative of the Estate of the late James Githaiga Kuria) v Johnson Githii Karanja [2022] KEELC 375 (KLR)
The bottom line
#A Kenyan court blocked a family from collecting rent on property they claimed through a deceased relative because they lacked proper letters of administration.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Plaintiffs to sue for the estate
The Plaintiffs claimed to be legal representatives but neither exhibited the grant of letters of administration ad litem nor dispelled indications that none had issued; their capacity to commence the suit is doubted and the suit may be invalid
Claims arising from a lease executed by the deceased can only be propagated by a duly appointed administrator. The Plaintiffs asserted that a grant ad litem had issued on 12th February 2021 but did not annex it. The court inferred it may be non-existent, particularly as the 1st Plaintiff averred she would furnish documents only after obtaining the grant together with a third party. Citing Virginia Edith Wamboi Otieno, an action brought before taking out letters of administration is incompetent at inception.
Prima facie case with chances of success
No prima facie case was disclosed: the lease expired on 30th September 2020, renewal negotiations failed, and the alleged renewal was not evidenced in writing as required by Section 3(3) of the Law of Contract Act
The lease of 30th June 2015 ran for 5 years 3 months and determined on 30th September 2020. Renewal negotiations before the deceased's death did not culminate in renewal. The Plaintiffs' claim of renewal was a bare allegation without the written, signed and attested contract demanded by Section 3(3) of the Law of Contract Act for dispositions of interests in land. Applying Mrao Ltd, the Plaintiffs did not demonstrate an apparently infringed right calling for rebuttal.
Irreparable loss
No irreparable loss was pleaded or demonstrated; any claim to the building is quantifiable in money and damages are an adequate remedy
The supporting affidavit did not allude to irreparable loss. The claimed Kshs. 40,000,000 building could not ground a claim because clause 2(e) of the lease provided the deceased was to remove any structures at determination and restore the premises. Any claim over the property is monetary and ascertainable, so under Kenya Commercial Finance Co. Ltd v Afraha Education Society no interlocutory injunction should issue.
Defendant's entitlement to reliefs as registered proprietor
As registered proprietor under Sections 24 and 25 of the Land Registration Act, the Defendant is entitled to possession and to the restraints, property manager and accounts sought, save prayer 6
Registration vests absolute ownership and rights free from other claims subject to registered encumbrances. The Plaintiffs showed no legitimate basis to remain in occupation or collect rents. The Defendant therefore merited prayers 2, 3, 4 and 5. Prayer 6 (tax/utility disclosure) failed: the Defendant had not invoked the Access to Information Act, 2016 procedure, and Article 35 claims lie exclusively before the High Court under Article 165(3).
Legal principles established
#- An action brought before taking out letters of administration is incompetent at inception
- Contracts for the disposition of an interest in land must be in writing, signed by all parties and attested by a witness (Section 3(3), Law of Contract Act)
- Damages are an adequate remedy where the injury is quantifiable in monetary terms, precluding a temporary injunction
- Registration vests absolute ownership and indefeasible rights in the proprietor subject to encumbrances on the register (Sections 24 and 25, Land Registration Act, 2012)
Court orders
#- 1.The Notice of Motion Application dated 17th February 2021 is devoid of merit and is dismissed
- 2.The Notice of Motion Application dated 30th September 2021 is granted: a temporary injunction restraining the Plaintiffs from further collection of rents or further subletting of the premises known as L.R No 209/18279 pending hearing and determination of the suit
- 3.An independent property manager is appointed to manage L.R No. 209/18279 and deposit net rent after expenses into a joint interest-earning account in the names of the Advocates for the Plaintiffs and the Defendant, to be appointed within 30 days
- 4.In default of agreement on the property manager, each side to propose two names to the Deputy Registrar within 14 days of disagreement, who shall appoint one of them
- 5.The Plaintiffs to give an account of all proceeds collected from the premises within 30 days, filed in court by affidavit
- 6.Costs of both applications awarded to the Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act; the court expressly declined jurisdiction over the access-to-information prayer, holding that such claims lie only before the High Court under Article 165(3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Wanjiru Githaiga & another (suing as legal Representative of the Estate of the late James Githaiga Kuria) v Johnson Githii Karanja [2022] KEELC 375 (KLR)", Case Analysis (2022). Civil Case No. E059 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/375/eng@2022-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.