Yusuf Abdulswamad v Haithar Haji Abdi [2021] KEELC 3062 (KLR)
The bottom line
#Kenya's High Court in Mombasa confirmed a landlord can terminate a tenancy for two months' rent arrears, even after tolerating late payments.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent's witness (the landlord's son and property manager) was competent and whether his evidence was hearsay
The witness was competent and his evidence was not hearsay; he testified on facts within his knowledge as property manager, and lack of written authority did not render his evidence hearsay.
Section 125(1) of the Evidence Act renders all persons competent to testify unless prevented by tender years, extreme old age, disease or similar cause. The witness managed the suit properties and communicated with the tenant on rent, so he fell within no exception. Non-payment and varied payment were documented and admitted by the appellant himself, so the evidence was on facts within his knowledge and not hearsay.
Whether the Tribunal misapplied Section 120 of the Evidence Act and the equitable doctrines of waiver, estoppel and acquiescence
Estoppel did not avail the appellant; payments in advance were made only at the landlord's request, and the appellant admitted paying in arrears. The landlord's tolerance of irregular payment did not waive his statutory right to terminate.
Section 120 requires that a person have intentionally caused or permitted another to believe a thing true and act on that belief. The evidence showed the appellant admitted paying rent in arrears and that advance payments were made only at the landlord's request. The Tribunal found the tenant in arrears of two months, a breach of Section 7(1)(b) of Cap 301, so the Tribunal's findings could not be faulted.
Whether the Tribunal wrongly interpreted Sections 7(1)(b), 9(1)(a) and 9(2)(b) of Cap 301 in terminating the tenancy
The Tribunal correctly applied its discretion under the Act; proof of persistent default was made and termination was justified.
Section 7(1)(b) permits termination where a tenant defaults for two months or persistently delays paying rent. The Tribunal found, and the court affirmed, that the tenant was in arrears for two months as at 31st July 2018. The Chairman considered the parties' evidence, including the tolerated irregular payment pattern, and still exercised his discretion to terminate. The court found no misinterpretation of the statutory provisions.
Legal principles established
#- All persons are competent to testify unless they fall within the exceptions in Section 125(1) of the Evidence Act; a property manager's testimony on facts within his knowledge is not hearsay for want of written authority.
- Termination of a tenancy is justified under Section 7(1)(b) of Cap 301 where the tenant is persistently in arrears, notwithstanding an established irregular mode of payment tolerated by the landlord; condonation of irregular payment does not amount to waiver of statutory rights.
Court orders
#- 1.The appeal is dismissed with costs to the respondent.
- 2.The decision of the Tribunal dismissing the appellant's reference and upholding the notice of termination is affirmed.
- On appeal from
- Business Premises Rent Tribunal, Mombasa
- BPRT No.122 of 2018
- Jurisdiction invoked
- First (and final) appeal 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, "Yusuf Abdulswamad v Haithar Haji Abdi [2021] KEELC 3062 (KLR)", Case Analysis (2021). BPRT Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3062/eng@2021-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.