Reuben Muli Musyoki T/A Konza Merchants v Wayua Mutisya Kinothya & another [2004] KECA 49 (KLR)

The trial judge, who saw and heard the witnesses, expressly disbelieved the appellant's denial of service and found him 'cheeky' and 'sly'; the appellant's own advocate had acknowledged the notice on 27.5.98 and intimated that his client would not comply. Applying the rule that demeanour-based credibility findings should not be lightly disturbed, the Court found nothing to disprove service and held the Notice valid and effective from 1st July, 1998.

Under sections 6 and 10 of the Act as pleaded, a tenant who receives a notice to terminate and does not intend to comply ought to file a reference with the relevant Tribunal. The appellant acknowledged the notice, declined to comply and never filed a reference; his application to enlarge time for filing one was rejected. The Notice therefore took effect on 1st July, 1998, and his occupation thereafter was trespass, justifying eviction and mesne profits.

Although an appellate court is in as good a position as the trial judge to evaluate the evidence and should form its own independent opinion, deference is owed to findings of credibility resting on the judge's observation of the witnesses' demeanour. Here the appellant produced nothing to disprove service and the trial judge had expressly disbelieved him, so the Court could not fault the judge's handling of the evidence.

The Court accepted that the Act protects tenants against forcible eviction otherwise than under due process of law, a basic tenet of the rule of law. However, that protection is forfeited where the tenant himself disregards the statutory scheme: the appellant ignored the notice, sat back on a flimsy excuse and never invoked the Tribunal, so neither the Tribunal nor the superior court would shield him from the consequences of his terminated tenancy.