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ELCPartially AllowedNot stated in judgment (plaint dated 13/3/2013)· [2018] KEELC 1006 (KLR)

Edith Chewanjel Masai v Farid Mohsen [2018] KEELC 1006 (KLR)

Environment and Land Court (High Court of Kenya)
30 October 2018
2,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kitale court ruled that a tenant who ignores a valid notice to vacate must pay the landlord's full legal costs, even after finally moving out.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Kitale Municipality Block 4/225, sued by plaint dated 13/3/2013 seeking a declaration that the defendant was properly served with a notice to vacate, an order of eviction, costs and any other relief. She alleged the defendant, a tenant whose one-year lease of 9/9/2010 had expired, ignored a three-month notice to vacate issued on 28/9/2012 and failed to pay rent from January 2013. The defendant denied proper notice and rent arrears. At the close of trial the parties agreed the defendant had vacated (in November 2017), leaving only the question of costs. The court found that the lease required one month's notice and had expired before the first demand; that the notice of 28/9/2012 was served and the defendant intimated he would vacate but stayed on until 2017; that the plaintiff had the right to give notice personally or through her agent Charles Musani; and that the defendant produced no evidence disputing the plaintiff's ownership or her authority to demand possession. The court held the defendant had no reasonable cause to remain beyond 4/1/2013 (30 days from receipt of notice) and that his wilful conduct occasioned the suit, amounting to harassment of the plaintiff. Judgment was entered for the plaintiff on costs only: the defendant was ordered to pay the full costs of the suit, to be agreed or taxed. No eviction order or rent arrears award was made, the premises having been vacated.

Key legal issues

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01

Validity and sufficiency of the notice to vacate

Holding

The notice dated 28/9/2012 was validly served and sufficient; the lease had expired by the time of the first demand, and the plaintiff could give notice in her own or her agent's name

Reasoning

The lease of 9/9/2010 was for one year requiring one month's notice and was never renewed. The defendant received the notice on 4/12/2012 and intimated he would vacate but stayed on until November 2017. The court found about three and a half months was sufficient to enquire into the plaintiff's right to possession, and the agent's name on the tenancy agreement did not invalidate the plaintiff's notice.

p. 3
02

Whether the defendant had reasonable cause to remain in occupation

Holding

No; absence of any dispute over the plaintiff's ownership or correspondence contesting her authority meant the stay-on was wilful

Reasoning

The defendant alleged the notice was backdated and inadequate but produced no correspondence disputing the plaintiff's ownership. After the plaintiff acquired title the defendant still remained, showing that the notice or ownership issue was not the true cause. A dispute with Charles Musani would have been a plausible reason to stay, but none was demonstrated.

p. 3
03

Costs of the suit

Holding

Costs awarded in full to the plaintiff because the defendant's wilful conduct occasioned the suit

Reasoning

Had the defendant vacated within 30 days of receiving notice, the suit would have been unnecessary. His failure to vacate despite multiple notices from the plaintiff and her brother's advocates showed intent only to harass the plaintiff. The court therefore exercised its discretion to award full costs against him.

p. 3

Legal principles established

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  • A landlord may issue a notice to vacate personally or through an agent
  • A tenant served with a notice to vacate who stays on beyond the notice period without disputing the owner's title incurs liability for the full costs of eviction proceedings

Court orders

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  1. 1.Judgment entered in favour of the plaintiff against the defendant
  2. 2.The defendant shall pay to the plaintiff the full costs of the suit, to be agreed on or taxed in default of agreement
Jurisdiction invoked
Original civil suit by plaint (not stated in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Edith Chewanjel Masai v Farid Mohsen [2018] KEELC 1006 (KLR)", Case Analysis (2018). Not stated in judgment (plaint dated 13/3/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1006/eng@2018-10-30

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