Josephat Kudumba v Lucky Mubaiwa

On 1 January 2016, the plaintiff and defendant entered into a verbal lease agreement for a sports bar (Beer Engine) at Uzande Business Centre in Murombedzi. The plaintiff paid US$100 monthly rent plus electricity bills. The plaintiff took occupation and paid US$700 advance rent in January 2016 and US$1,300 in March 2016. Despite defendant's multiple attempts to evict plaintiff through letters dated 11 April 2016, 17 May 2016, and 31 August 2018, the plaintiff remained in occupation and continued paying rent. On 24 January 2019, defendant advised plaintiff to vacate by 31 January 2019. The plaintiff claimed he had not defaulted on rental payments and had renewed contracts with service providers. The defendant alleged that the plaintiff was in arrears for 5 months, had not paid rental increases from US$100 to US$150 since July 2017, failed to pay liquor license renewals for 3 years, and damaged the premises. The defendant also claimed the property was transferred to G Mubaiwa Family Trust in 2016.

• Whether the lease agreement expired on 1 January 2019
• Whether the plaintiff qualified as a statutory tenant under the Commercial Premises (Rent) Regulations 1983
• Whether the plaintiff was entitled to a declaratory order protecting him from eviction without due process
• Whether the lease agreement was verbal and open-ended or written with a fixed term

1. Plaintiff is declared a statutory tenant at the Sports Bar (The Beer Engine) situated at Uzande Business Centre Murombedzi. 2. Defendant is interdicted from seeking eviction of the plaintiff without due process. 3. Defendant to pay plaintiff's costs of suit on a legal practitioner and client scale.

A commercial tenant becomes a statutory tenant under s 22(2) of the Commercial Premises (Rent) Regulations 1983 where: (1) the lease has expired either by effluxion of time or notice from the lessor; (2) the lessee continues to pay rent due within seven days of the due date; and (3) the lessee performs the other conditions of the lease. Once these conditions are met, no court order for eviction can be made. A landlord cannot evict a statutory tenant without obtaining a court order through due process. The nature and terms of a lease agreement are determined by the objective evidence, including written communications between the parties, rather than subsequent self-serving claims. A landlord who seeks to transfer property to avoid tenant rights after litigation has commenced will not be permitted to rely on such transfer to defeat the tenant's claim.

The court observed that the defendant appeared to have ulterior motives for evicting the plaintiff that were unrelated to any genuine breach of the lease agreement, particularly given that eviction attempts began in May 2016 during a period covered by advance rent payment. The court noted that the cession of property to the G Mubaiwa Family Trust appeared to be an attempt to frustrate the plaintiff's application for statutory tenancy status. The court also commented on the importance of maintaining proper records of rental payments and issuing receipts, though it accepted that the trust-based relationship initially established between the parties explained the absence of receipts. The court remarked on the defendant's inconsistent and contradictory evidence as indicative of unreliability as a witness.

This case clarifies the requirements for establishing statutory tenancy in Zimbabwe under the Commercial Premises (Rent) Regulations 1983. It demonstrates the protection afforded to commercial tenants who continue to pay rent and perform lease obligations after purported termination of a lease. The judgment emphasizes that landlords cannot evict statutory tenants without obtaining a court order, and that courts will scrutinize landlord claims critically, particularly where there are contradictions in evidence and attempts to frustrate tenant rights through property transfers. The case also illustrates the importance of documentary evidence, with the landlord's own written communications being used against him to establish the nature of the lease agreement.