Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Appeal No. 27 of 2017· [2018] KEELC 3197 (KLR)

Mohammed Bwana Bakari v Salha Abdulatif [2018] KEELC 3197 (KLR)

Environment and Land Court
23 May 2018
AOA. Omollo
1,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed a landlord could terminate a business tenancy over rent arrears, and paying late after receiving the termination notice did not save the tenant.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Mombasa against the decision of the Chairman of the Business Tribunal in BPRT No. 131 of 2013, delivered on 19 December 2014, which dismissed the Appellant tenant's reference and allowed the Respondent landlord's notice dated 6 August 2013 terminating the controlled tenancy. The appeal was disposed of by written submissions. The court found as an undisputed fact that the Appellant was four months in rent arrears (May to August) when the termination notice was served, and that he paid the arrears only two days after service. The Appellant sought to justify the default by reference to criminal proceedings before the Municipal Court (Case No. 4741/2012) against the Respondent's father, in which the Appellant had engaged an advocate; the court held that the tenants were not accused persons, that legal representation under Article 50(1)(g) was a matter of their choice, and that this did not exempt the Appellant from his rent obligations absent the landlord's consent or court/Tribunal approval. Relying on section 7(1)(b) of Cap 301, the court held that the statute does not prescribe how many defaults justify termination, and that payment of arrears after service did not invalidate a notice that had not been withdrawn, the dispute remaining alive while the tenant retained possession. The court found no error in the Tribunal's evaluation of the evidence, affirmed the judgment of 19 December 2014, and dismissed the appeal with costs to the Respondent, granting the Appellant 45 days to vacate, failing which the landlord could evict him using lawful means.

Key legal issues

#
01

Whether rent arrears of four months established a valid ground for termination under section 7(1)(b) of Cap 301

Holding

Yes; a single default covering May to August, self-evident at the time the notice was issued and not withdrawn, satisfied the ground

Reasoning

The Appellant admitted being in arrears for May, June, July and August, and paid only two days after being served with the notice. Section 7(1)(b) does not specify how many defaults are needed. The Chairman's duty was to determine whether the ground stated in the notice was one provided by the Act and whether it was proved. Both were satisfied, so the Tribunal correctly dismissed the reference and allowed the notice.

p. 2
02

Whether prior Municipal Court proceedings between the Appellant and the Respondent's father justified withholding rent

Holding

No; engaging an advocate in those proceedings was the tenant's choice and did not excuse rent obligations

Reasoning

The Municipal Court proceedings (case No. 4741/2012) were against the Respondent's father over the premises and never raised the issue of rent. The tenants were not accused persons; their legal representation was voluntary. Article 50(1)(g) rights did not exempt the tenant from contractual obligations absent the landlord's consent or court/Tribunal approval.

p. 1
03

Whether the appeal should be set aside or varied notwithstanding the Tribunal's judgment

Holding

No; the Tribunal's judgment of 19.12.2014 was correct and there was no reason to set it aside or vary it

Reasoning

The court found the Chairman did not err in evaluating the evidence: the arrears were self-evident when the notice was issued and not withdrawn, the dispute remained alive, and the ground relied upon fell squarely within section 7(1)(b) of Cap 301. Consequently the appeal failed in its entirety.

p. 2

Legal principles established

#
  • Section 7(1)(b) of Cap 301 does not prescribe how many times a tenant may default in paying rent before a landlord is entitled to terminate the tenancy; a single default in rent for two months suffices
  • A tenant's choice to engage an advocate in unrelated proceedings does not constitute reasonable justification to be exempted from paying rent under the landlord/tenant relationship
  • Payment of rent arrears after service of a termination notice does not invalidate the notice where the landlord has not withdrawn it and the tenant has not surrendered vacant possession

Court orders

#
  1. 1.The appeal is dismissed for want of merit with costs to the Respondent
  2. 2.The Appellant is given 45 days to move out of the impugned premises
  3. 3.In default, the Respondent/Landlord is at liberty to evict the Appellant using lawful means

Authorities

#

Legislation

  • Penal Codesection 35(1)
  • Landlord and Tenant (Business Premises) ActCap 301, section 7(1)(b)
  • Landlord and Tenant (Business Premises) ActCap 301, section 4
  • Constitution of Kenya, 2010Article 50(1)(g)
On appeal from
Business Premises Rent Tribunal (Business Tribunal)
BPRT No. 131 of 2013
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Business Premises) Act (Cap 301), heard in the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mohammed Bwana Bakari v Salha Abdulatif [2018] KEELC 3197 (KLR)", Case Analysis (2018). ELC Appeal No. 27 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3197/eng@2018-05-23

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