KADURIRA v GOZA (2 of 2026) [2026] ZWMTHC 2 (26 January 2026)

5 HCMT2-26 HCMTC263/24 NATHAN AMOS KADURIRA V GODFREY GOZA HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 15th & 26th January 2026 **CIVIL ACTION** _R. G Gwatidzo_ , for the plaintiff _P. C. Gwizo,_ for the defendant SIZIBA J**:** 1. The plaintiff filed this action against the defendant on the 16th of October 2024 and his prayer was as follows: 1. An order confirming cancellation of the lease agreement between the parties on 22 July 2024. 2. An order for eviction of defendant and all those claiming occupation through him from stands 1497, 1898, 1499, 1500 and 1501 of Nyazura Township. 3. Payment of holdover damages at the rate of US$1 100 per month from 1 September 2024 to the date of eviction from the property. 4. Interest thereon at the prescribed rate from 1 September 2024 to full payment. 5. Costs of suit. 2. The issues for determination that were agreed at the pre -trial conference in terms of the order of this court dated 11 December 2025 were as follows: 1. Whether the defendant owes arrear rentals and if so, how much? 2. Whether defendant owes Makoni Rural District Council dues and if so, how much? 3. Whether defendant effected improvements on plaintiff’s property and if so, the value of such improvements. 4. Whether the value of improvements can offset arrear rentals due to the plaintiff. 5. Issues of interest on arrears and costs of suit. 3. At the commencement of the trial, it was agreed by both parties that the first issue for determination should be whether or not the defendant is in breach of the lease agreement. **FACTS THAT ARE COMMON CAUSE** 4. The facts that are common cause in terms of the pleadings filed by the parties and their testimony before this court are as follows: 1. The plaintiff who owns the stands which are the subject of this action (hereinafter called the property) leased out his property to the defendant and his co - lessee one Chipo Lizzie Mhlanga by means of a written lease agreement which was signed on the 8th of November 2023. 2. The lease was for a duration of thirty - six months and it was to commence from 8 November 2023 and end on the 7th of October 2026. 3. The property was leased for a joint Truck Inn Business. 4. The agreed monthly rental was US$500 per month. The rental was to be reviewed every six - month interval and in the event of a dispute on the amount of the rental, the issue was to be referred for arbitration by a qualified registered Estate Agent chosen by the President of the Estate Agents Council. 5. The lessees were liable to pay council dues or rates. 6. There was to be prior written consent by the plaintiff before any improvements could be effected at the premises in terms of clause 15 of the agreement. 7. There was to be a seven - day notice to remedy the breach before cancellation by the plaintiff. 8. On 8 May 2024, the plaintiff terminated his agreement with the defendant’s partner Chipo Lizzy Mhlanga in writing. 9. On 22 April 2024, Bere Brothers who were representing the plaintiff wrote to notify the defendant of a rent review from US$500 to US$1 100. On the 29th of May 2024, the defendant made a counter proposal of rent review to US$800 instead of US$1 100. 10. The plaintiff agreed that the defendant had drilled a borehole at the property at his own expense. 11. The defendant agreed that he never paid any council dues or rates from the onset of the lease. He also agreed that he did not pay the security deposit. 12. The defendant also agreed under cross examination that he had been given a notice to remedy the breach. 13. The defendant did not dispute that he had not paid rentals from August 2025 onwards and he did not contest being liable for such rentals at the rate of US$500 per month. On the 11th of November 2025, Bere Brothers confirmed by letter that the defendant was owing rentals of US$500 from August which by then totalled US$2000. 14. On the 7th of November 2023, Bere Brothers wrote a cover letter to the Chief Executive Officer of Makoni Rural District Council forwarding the lease and advising that the defendant and his partner would put up necessary structures at the property that are consistent with the Truck Inn Business. **ANALYSIS AND DETERMINATION OF THE DISPUTED FACTS** 5. The written nature of the contract and the above common cause facts make it easy for one to determine the contested facts in this case. It is common cause as well that the written lease contained a non – waiver clause whereby all departures from its provisions were to be validated by being reduced to writing and signed by all the parties. 6. The plaintiff’s letter cancelling the lease agreement is dated the 22nd of July 2024. His testimony that the defendant was paying rentals quite late as opposed to advance payments as stipulated in the contract was not disputed by the defendant on cross examination. In his own testimony, the defendant never claimed to have paid rentals in time. The receipts that are attached in his bundle demonstrate that his payments were tricking in late and not as agreed. However, the plaintiff failed to prove that the defendant owed any rentals prior to August 2025. The letter by Bere Brothers confirming that as at 11 November 2025, the defendant owed US$2000 confirms the fact that there were no other arrears being claimed from the defendant. The plaintiff’s purported unilateral increase of rentals to US$1 100 which the defendant never agreed to and without any arbitration by an Estate Agent was not valid in terms of the contract between the parties. The defendant’s liability to the plaintiff’s rentals is only limited to the agreed sum of US$500 per month as from August 2025 onwards. The defendant’s dilatory payment of rentals constituted a breach of the contract with the plaintiff. 7. The defendant argued that the arrear rates of US$1 010 on each of the five stands in the property are not particularized as to the period which they relate to. He testified that he tried to verify a day before the court date as to how much of this sum relates to the period of the lease but the saver at the council was down. He also claims to have gone to confirm at the council upon commencement of the lease with his then business partner Lizy Mhlanga and her husband where they found total arrears of US$3 900. He agreed to be owing something but not everything as alleged by the plaintiff. His failure to pay anything at all as if it was not his duty to ascertain what had accrued during his lease constitutes a breach of contract. He cannot be absolved from this breach simply because he had a business partner who was equally liable for the council dues. He chose to continue the lease after the plaintiff had terminated the lease with his partner. The plaintiff was correct in his testimony that the defendant has never entered the council offices to pay council dues and for such conduct there was no excuse. What comes out clearly is that the defendant owes council dues but there was no clear evidence placed before this court to ascertain whether these rates all accrued during the period of the lease or whether there was a balance which had remained prior to the lease. The plaintiff’s testimony on this aspect was not backed with the necessary documentation and his assertion that he had cleared the balance when the lease commenced cannot be relied upon. 8. The defendant’s assertion that the security deposit was waived because the parties agreed that there were no developments on the property is fallacious. Such assertion ignores the fact that such waiver ought to have been reduced to writing and signed for by all the parties for it to be binding to the plaintiff. Accordingly, the failure to pay the security deposit of US$500 within thirty days after signing of the contract constituted a breach of the contract which was not remedied until cancellation. 9. The defendant proved that he drilled a borehole and put up its accessories being the solar system, the pump and the jojo tank. These developments which cost US$3000 in terms of the Evaluation Report were not contested by the plaintiff. The plaintiff denied that the defendant had effected the other improvements which included levelling of the ground, putting of burglar bars and the fence. The defendant agreed that part of the fence was erected by the plaintiff. The defendant’s assertion that he had effected these other improvements was not convincing to me, especially in light of his admission that another party had rented the same premises prior to the lease between him and the plaintiff. All the same, there was no written authorization by the plaintiff to drill the borehole or embark on any other improvements at the property. The assertion that the letter dated 7 November 2023 to the Chief Executive Officer of Makoni Rural District council constituted such consent is problematic for two reasons. The first problem is that that letter was not addressed to the defendant but to the council. The second hurdle is that the letter in question expressly states that such structures were still to be subject to approval and hence the letter agrees with the contractual requirement of seeking approval of the plaintiff for such improvements. Nothing exonerates the defendant from the strict terms of the written contract which carries non variation and non – waiver clauses. See _Ziswa and Another_ v _Chadwick and Another_ SC 92/22. As a result, this court is unable to offset the outstanding rentals with the US$3000 being the value of the proven developments relating to the borehole. The plaintiff even testified that he intends to remove the borehole from the property as it does not suit his interests where it is located. 10. The plaintiff has made up a case for the confirmation of cancellation of the contract of lease due to breach by the defendant. His prayer for the defendant’s eviction and payment of holdover damages is merited. The defendant is not entitled to offset the rentals due with the proven value of improvements which were not approved by the plaintiff. The plaintiff claimed interest on the claimed holdover damages at the prescribed rate. Nothing can defeat such claim. The plaintiff pressed for punitive costs at attorney and client scale against the defendant. Costs cannot be awarded in this case because the defendant was also entitled to defend himself against the plaintiff’s claim which was based on unjustified rentals of US$1 100 which were not in terms of the agreement. In all fairness therefore, each party should bear its own costs. It is ordered as follows: 1. The plaintiff’s cancellation of the lease agreement between the parties on the 22nd of July 2024 be and is hereby confirmed. 2. The defendant and all those claiming occupation through him of stands 1497, 1898, 1491, 1500 and 1501 Nyazura Township shall vacate the said property within 10 days of this order failure which they shall be evicted. 3. The defendant shall pay plaintiff holdover damages in the sum of US$500 per month from August 2025 to the date of vacation from the premises. 4. The defendant shall pay interest on the amount of holdover damages from August 2025 to the date of full payment at the prescribed rate. 5. Each party shall bear its own costs. _Khuphe and Chijara Law Chambers,_ plaintiff’s legal practitioners _Mugadza Chinzamba and Partners,_ defendant’s legal practitioners