Mayfair Establishment Limited v Athman & another (Environment and Land Case E041 of 2022) [2025] KEELC 7895 (KLR)
The bottom line
#A Mombasa landlord lost its bid to evict a tenant because it served a flawed termination notice and kept accepting late rent, which the court held waived forfeiture.
What this practically means
#Executive summary
#Key legal issues
#Whether the letter of 15th May 2020 constituted a valid notice before forfeiture
It did not; it was not addressed to any particular individual, did not give notice to remedy the breach, and was not served on the 1st Defendant
Section 59 of the Registered Land Act (now Section 75 of the Land Registration Act) required a notice specifying the breach, requiring remedy within a reasonable period where capable of remedy, and requiring compensation for other breaches, with failure to comply within thirty days. The termination letter demanded surrender and possession within 30 days without offering opportunity to remedy or compensate and was not served on the surviving joint proprietor.
Whether the right of forfeiture was waived
Yes; the mode of dealing from 2000 to 2010, with rent paid in arrears upon demand, constituted an effective waiver of the right of forfeiture
Section 56(3) of the repealed Registered Land Act provides that forfeiture is waived where the lessor accepts rent falling due after the breach, knowing of the breach. Historically the lessees paid rent in arrears upon demand (2004 demand answered in 2005; payment in June 2010 after the Plaintiff acquired title). The Plaintiff also demanded arrears rather than forfeiture in 2012 and 2017.
Whether the alleged breaches of sub-letting and non-payment of rates were proved
No; there was no evidence of sub-letting, the lease's restriction was not proved, and rates had been paid up to 15th March 2022
The Plaintiff produced no evidence that the Defendants had sub-let the property or that the lease prohibited sub-letting. The Defendants' documents showed rates paid with no arrears due to the County Government of Mombasa as at 15th March 2022. Arrears of rent existed but flowed from the Plaintiff's failure to properly introduce itself and direct where payments should be made.
Service of notices and joinder of the deceased's estate
The surviving joint tenant alone was the proper recipient of post-2015 notices, making the joinder of the administrators unnecessary
The 1st Defendant and her husband held joint proprietorship; on his death in 2015 his share passed to her by survivorship under Section 60 of the Land Registration Act. None of the Plaintiff's witnesses ever served the 1st Defendant, and PW3's claim of serving the deceased in 2017 and 2020 was physically impossible, undermining the Plaintiff's evidence of notification.
Legal principles established
#- A lessor cannot exercise the right of forfeiture without first serving on the lessee a notice specifying the breach, requiring remedy where capable of remedy, and demanding compensation for breaches other than non-payment of rent
- Acceptance of rent which became due after the breach, with awareness of the breach, operates as a waiver of the right of forfeiture
- On the death of a joint tenant, the interest passes by survivorship to the surviving joint tenant, so notices after death need only be served on the survivor
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.Each party shall bear their own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property Mombasa/Block X/92 (Article 162(2)(b) Constitution, not expressly stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayfair Establishment Limited v Athman & another (Environment and Land Case E041 of 2022) [2025] KEELC 7895 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7895/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.