Cyprianus Okoth Okere v Nacico Sacco Society Limited [2019] KEELC 1523 (KLR)
The bottom line
#A Kenyan tenant lost his appeal because receipts prove rent payment, not cheque stubs, and an unpaid two-month default justifies eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether failure by the landlord to maintain a rent book defeated the claim for rent arrears
Failure to keep a rent book was not fatal to the landlord's case because proof of payment is by receipts, and the respondent produced all receipts issued
The court accepted that under section 3(3) of Cap 301 the landlord is responsible for maintaining a rent book in a controlled tenancy. However, it held that the statutory obligation does not displace the evidentiary rule that proof of payment is by receipts. The respondent produced all receipts issued to the appellant, whereas the appellant relied only on cheque stubs which, being ambiguous as to purpose, were not proof of rent payment. Failure to keep the rent book therefore did not undermine the respondent's case.
Whether the appellant proved an overpayment of rent
The appellant failed to prove any overpayment; his own letter of 4th February 2010 admitted arrears and proposed instalment payments
The appellant claimed an overpayment of Kshs.21,809 between 2001 and 2012, but produced no evidence of overpayment at trial. Instead, his letter of 4th February 2010 admitted arrears of Kshs.172,484 and proposed paying Kshs.5,000 monthly plus the monthly rent. The court found he never denied writing that letter and did not then raise any issue of reconciliation. The tribunal's reliance on the landlord's statements of account, which the landlord's manager maintained were correct, could not be faulted.
Whether the notice to terminate tenancy was justified
The notice was justified in law and proved; the tenant was persistently in arrears when it was issued
Applying section 7(1)(b) of Cap 301 and the authority of Dorca Ondieki Gisege, the court held that a landlord may terminate where the tenant has defaulted for two months or persistently delayed payment. The evidence showed the tenant was in arrears when the notice was issued, admitted arrears in writing, and defaulted on his own payment proposal. The chairman therefore acted properly in upholding the notice and dismissing the tenant's reference.
Legal principles established
#- Under section 7(1)(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, a landlord may terminate a controlled tenancy where the tenant has defaulted in paying rent for two months after it becomes payable or has persistently delayed payment
- While the landlord must maintain a rent book, proof of payment of rent is by receipts; cheque stubs are not evidence of payment of rent
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- 2.The appellant is given sixty (60) days from the date of the judgment to vacate and hand over vacant possession of the premises, in default the respondent/landlord may evict him using lawful means
- On appeal from
- Business Premises Rent Tribunal
- BPRT Case No. 41 of 2013 Nairobi
- Jurisdiction invoked
- Appeal to the Environment and Land Court from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cyprianus Okoth Okere v Nacico Sacco Society Limited [2019] KEELC 1523 (KLR)", Case Analysis (2019). ELC Civil Appeal No. 33 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1523/eng@2019-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.