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ELCDismissedCivil Appeal No. 147 of 2017· [2018] KEELC 4534 (KLR)

Charles Okoth v Abdulrahman Hamumy [2018] KEELC 4534 (KLR)

Environment and Land Court
7 February 2018
AOA. Omollo
1,770 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court confirmed that Kenyan business tenants who habitually pay rent late, even within the same month, can lawfully lose their premises.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Mombasa from the decision of the Chairman of the Business Premises Rent Tribunal (Hon. D. Mochache) delivered on 17 August 2012 in BPRT Case No. 155 of 2011, upholding a landlord's notice to terminate a controlled tenancy on plot No. 60/XVI/271. The appellant tenant challenged the Tribunal's decision on six grounds, principally that the chairman ignored admissions, misdirected herself on the evidence, failed to analyse the issues, and was biased in favour of the landlord. The appeal was disposed of by written submissions. The court framed the disputed breaches as the questions for determination: failure to pay rent on time, cooking fish blocking access to other tenants, failure to repair internal parts, and subletting without consent. The court disposed of the appeal on the rent issue alone. The tenancy agreement required rent payable monthly in advance without deduction. The appellant's own testimony admitted paying in arrears, with documented late payments for several months in 2009, 2011 and 2012. His claim that the landlord delayed issuing receipts failed because receipts were issued in the same month as payment. The court held the appellant persistently defaulted within section 7(1)(b) of Cap 301 and that the chairman correctly upheld the notice. The remaining grounds could not alter that finding. The appeal was dismissed with costs to the respondent, and the appellant was granted 60 days from the date of judgment to vacate, failing which eviction would issue.

Key legal issues

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01

Whether the tenant's manner of paying rent amounted to persistent default justifying termination of the controlled tenancy

Holding

Yes - paying rent in arrears contrary to a clause requiring payment monthly in advance, with repeated late payments, constitutes persistent default under section 7(1)(b) of Cap 301

Reasoning

The tenancy agreement required rent payable monthly in advance without deduction. The appellant admitted on oath that he stayed on the premises before paying, i.e. in arrears. Specific late payments were identified for October-December 2009, November-December 2011 and April-June 2012. Reliance on receipt delays failed because receipts were issued in the same month as payment. His own admission proved the default.

p. 2
02

Whether on a first appeal the court should disturb the Tribunal's factual finding on rent default

Holding

No - the chairman came to the right conclusion in upholding the notice of termination, so the appeal fails

Reasoning

As a first appeal, the court may re-evaluate the facts and law before the Tribunal. Having done so, the court found the appellant's own testimony admitted payment in arrears. The receipt-issuing delays did not excuse late payment. No basis existed to overturn the chairman's conclusion, and the remaining grounds of appeal could not affect the result.

p. 2

Legal principles established

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  • A party who signs a contract is bound by its terms and cannot ask the court to rewrite them
  • A tenant who pays rent monthly in arrears when the agreement requires payment in advance persistently defaults within the meaning of section 7(1)(b) of Cap 301

Court orders

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  1. 1.Appeal dismissed with costs to the Respondent
  2. 2.Appellant given 60 days from the date of judgment to vacate the premises, in default eviction to issue

Authorities

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Legislation

  • Landlord and Tenant (Business Premises) Actsection 7(1)(b)

Cases cited (1)

  • Lalji Karsan Rabadia & 2 others vs Commercial Bank of Africa Ltd
    (2015) eKLR
On appeal from
Business Premises Rent Tribunal
Mombasa BPRT Case No. 155 of 2011
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Business Premises) Act (Cap 301)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Okoth v Abdulrahman Hamumy [2018] KEELC 4534 (KLR)", Case Analysis (2018). Civil Appeal No. 147 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4534/eng@2018-02-07

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