TENANT’S ILLEGAL OCCUPATION OF RENTED PREMISES

The Court of Appeal of Tanzania in Civil Appeal Number 333 of 2019 – Lawrence Magesa t/a Jopen Pharmacy vs Fatuma Omary & Another, made a unanimous decision on the occupation of premises by a tenant upon expiry of a tenancy agreement and whether they have the right to receive compensation as a result of their eviction under such circumstances.

In this case, the tenant (the “Appellant”) entered into three (3) separate tenancy agreements with the landlord (the “1^st Respondent”) between 1^st February 2011 and 1^st February 2015, with the last tenancy agreement being for a period of one year (1^st February 2014 to 1^st February 2015). Upon the lapse of the tenancy, on 6^th March 2015, the 1^st Respondent evicted the Appellant from the rented premises through an auctioneer (the “2^nd Respondent”).

It was the Appellant’s contention that the 1^st and 2^nd Respondent had not served him with the notice of eviction accordingly. The Appellant also contended that the clause indicating that the tenancy term would not be renewed was fraudulently added by the 1^st Respondent. The Appellant indicated that the eviction was illegal and sought compensation for the value of the pharmaceutical and other items taken away by the auctioneer; loss of profit for the period after eviction as well as the costs of the suit.

The Court of Appeal in deciding against the Appellant indicated that following the lapse of the tenancy agreement, the Appellant was required to vacate the rented premises immediately and continuing to occupy the said premises was illegal. The Appellant was therefore not entitled to any compensation arising from their eviction from the premises.

From our analysis of this decision, we are of the view that the import is as follows:

Parties entering into an arrangement for renting/leasing of premises ought to ensure that the same is in writing. Further, every party should ensure that they obtain a copy of the executed agreement at the earliest.

Expiry of the tenancy agreement is synonymous to the expiry of possession – a tenant should ensure that they are aware of the date of expiry of the tenancy agreement and make arrangements to vacate the premises immediately upon the lapse of the tenancy period. In the alternative, tenants ought to secure extension or renewal of the tenancy agreement prior to the lapse of an existing agreement.

Occupation of rented premises after expiry of the tenancy agreement is illegal – where the tenant continues to occupy the rented premises after the lapse of the tenancy period, then they are doing so illegally and are considered to be trespassers.

Trespassers are not entitled to any notice of eviction – where a tenant continues to occupy the rented premises upon expiry of the tenancy period, they assume all the risks arising from that illegal occupation. They are not entitled to any notice of eviction and the owner of the premises can move to evict them at their own risk or peril.

Illegal occupants are not entitled to any costs arising from their eviction or for damage of property – where a tenant has been evicted following illegal occupation of premises, they are not entitled to claim compensation from the landlord and/or the auctioneers as a result of the eviction. This position was supported by the decision of the Court of Appeal in Pricess Nadia (1998) Ltd vs Remency Shikusiry Tarimo & Others (Civil Appeal 242 of 2018) wherein the Court held that: Just as she (the Appellant and the tenant therein) was not entitled to any notice before eviction, she had no right to claim any compensation from the forceful eviction.

In a recent decision of the Court of Appeal (Equador Limited vs National Development Corporation (Civil Application 388 of 2019) [2023] TZCA 4 (27 January 2023)), the Court held as follows: This implies that even if the applicant's properties were damaged in the eviction process, there could be no redress.

From the foregoing, it is incumbent on any tenant to ensure that they are well aware of the terms of the tenancy agreement that they enter into. Further, they ought to be keen to vacate the premises immediately upon expiry of the tenancy unless there is express indication that the tenancy period has been extended. Where the tenant fails to secure an extension of the tenancy term, and they continue to occupy the premises, then they are considered to be trespassers and they are not entitled to any notice of eviction. Further, they have no right to claim compensation for any loss of damage arising from the process of eviction.

Although this significant decision has been made by the Court, we believe that landlords may misuse the Court of Appeal's ruling, particularly when dealing with tenants and their belongings after the end of the tenancy period. Unfortunately, the decision does not outline any procedure to be followed during the eviction and the same has been left in the discretion of the landlord. Further, the Court of Appeal has not addressed instances where the tenant has developed or renovated the rented premises during the tenancy and how such fixtures and fittings shall be handled.

It's worth noting that this decision could be harmful to tenants and could potentially subject them to significant losses and damages during the eviction process. We are hopeful that the Court of Appeal shall be keen on creating jurisprudence to protect tenants in this process especially to the extent that the execution of the eviction should be done in a humane, fair and reasonable manner to avoid unnecessary loss and damage.

By Catherine Kamau - Senior Associate (Ngeri, Omiti & Bush Advocates LLP of Kenya)

Note: This is not a legal opinion and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.