Simple Steps for Legal tenant eviction in Kenya (with sample eviction notice)

Two laws in Kenya govern tenancy and resulting disputes. These are The Rent Restriction Act Cap 296 Laws of Kenya and The Landlord and Tenant (shops, hotel and catering establishment Act) Cap 301. Other laws include Land Laws (Amendment) Act 2016 which brings amendment to the Land Act 2012 and the Land Registration Act 2012 and The Land Act Regulations 2017.

I am working with the assumption that you already have a signed lease/rental agreement.

If you do not, please download this sample for use.

Sample Rent Agreement

The law only protects someone who is in occupation and is doing so legally. If the occupant is occupying the property illegally, they may be evicted by force.

 Eviction of a tenant at a residential unit.

The procedure to be followed majorly depends on how parties agreed in the first place. However, there is a bare minimum set by law.

• First, a landlord must give a notice of termination. The notice must must state the date on which the tenancy will end. For tenants on registered leases, the lease terms dictate the notice period. If the rent is paid on a monthly basis, the landlord must give a one-month termination notice.
• In cases where the landlord and tenant have oral agreements or written agreements without a termination clause, Such agreements are referred to as periodic tenancies. The notice period should be equivalent to the interval between rent payments.
• You can download a tenant eviction notice template here
• Once the termination notice is served upon the tenant, he/she may protest the notice by writing back to the landlord indicating why he/she will not comply with the notice.
• Both parties must agree to the termination. The law establishes the Rent tribunal that listens and resolves tenancy disputes. It is this body that the tenant must contact if they have any objection to the landlord’s eviction notice within thirty days of receiving the eviction notice.
• Once the termination notice period expires, the tenant becomes a trespasser, and the landlord can apply to the Environment and Land Court for an eviction order.
• The landlord must obtain a court order for possession unless the tenant consents or agrees to vacate the premises.
• There have been instances where landlords increase rent for tenants who refuse to vacate their premises. That is unlawful. The law says a property owner cannot waive a notice of termination, create a new tenancy, or reinstate a tenancy by notice of rent increase.

10 Terms You must Include in Your Lease or Rental Agreement

Eviction of a tenant from business premises/Controlled Tenancy

The Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act (Cap 301 Laws of Kenya) is designed to protect “protected tenants” from eviction and exploitation.

Under this Act, a landlord cannot evict a tenant without issuing a two-month termination notice, unless the parties agree to a shorter notice period.

What is Controlled Tenancy?

A controlled tenancy is defined under section 2 of the Landlord and Tenant Act (Shops, Hotels and Catering Establishments Act), Chapter 301 of the Laws of Kenya as a tenancy for a shop, hotel or catering establishment which has:

1. Been reduced into writing; or
2. Hasn’t been reduced into writing but which is for a period not exceeding five years; or which contains a provision(s) for termination, other than for breach of covenant, within five years from commencement thereof; or which relates to premises specified by the Minister in a Gazette Notice to be a controlled tenancy.

Generally, where tenancy subsists but without a formal written document, that tenancy is defined as a controlled tenancy. The intent to confer tenancy is evident. However, what isn’t outrightly determinable is the nature of the agreement between the two parties.

Click to Download draft Letter for Intention to Increase Rent

Grounds for termination of tenancy

1. The tenant’s failure to comply with the obligations in respect of repair and maintenance of the Premises as comprised in the Agreement;
2. Default in payment of rent for a period of 2 months after such rent has become due;
3. Commission of substantial breach of obligations under the Agreement and is connected with the tenant’s use or management of the premises;
4. That the landlord has offered or is willing to provide or secure the provision of alternative accommodation for the tenant and the terms which provide for the same are reasonable and accommodation suitable for the tenant’s requirements;
5. That the tenancy was created by subletting part of the premises whereby the landlord is the owner of the interest in that upon termination of the superior tenancy, the landlord requires possession of such premises as a whole for the purpose of letting or disposing the same as a whole;
6. That upon termination of the tenancy, the landlord intends to demolish or reconstruct the premises or a substantial part thereof or carry out substantial work of construction on the premises or part and that he could not reasonably do so without obtaining possession of such premises; and
7. That on the termination of the tenancy, the landlord himself intends to occupy the premises for a period of not less than one year for the purposes or part purposes of a business to be carried out by him or as residence.

Rental increments

• A landlord cannot increase your house’s rent without notice unless stated in a tenancy agreement.
• Typically, such increments happen when a person is renewing their lease agreement.
• It also happens when one is moving to a new house.
• You must receive a formal letter stating when the property owner will increase rent.
• The letter or written notice must give you at least one month to inform you of the coming changes.
• A landlord may or may not give a reason for increasing the rent.
• On the other hand, you have the right to object to the increment.
• If you choose to object, you must notify your landlord within 30 days after receiving the notice.

Rent-to-Own Contracts in Kenya

Deposits

• Before occupancy, landlords require tenants to pay the rent in advance and another equal amount as a security deposit.
• The deposit you give before occupancy is refundable.
• You can claim it once you return the property in its original conditions at the end of your lease contract.
• The law on deposits isn’t explicitly included in the constitution and as a result, there are cases of breaches that go unpunished.
• The duration for a refund of rent deposit will depend on what is stated on the tenancy agreement.
• In some cases, it is usually within 30 days after the end of a lease agreement. Should you move before the end of the agreement, your landlord can wait until the expiry of the lease before giving you the deposit.
• Understand that rental deposit laws also protect the landlord.In simple terms, there are situations where you will not get back the full amount. These include:
  • Non-payment of rent
  • Damage to the property
  • Unpaid utilities such as electricity and water
  If a landlord decides not to pay, find out the reasons for such a decision. Speak to them amicably to get a refund.

Right to Privacy

• Once you move in, the landlord can’t enter your property without your consent.
• It doesn’t matter what they are trying to do, they need to have your permission before they can access your house.
• The only exception would be if there is an emergency such as a fire.
• Also, your safety is of utmost importance no matter where you are staying.
• The landlord should make sure that the doors, windows and locks work properly to ensure your safety. If you want to add extra locks, you have the right to do so.

Distress for Rent

• Kenya has Distress for Rent Act. It is a law that gives property owners the mandate to seize or cause a seize of goods from a tenant that owes rent.
• So, if you are in arrears of more than a month, a landlord can use the act to try and sell goods to recover the money owed.
• In this case, a property owner does not have to seek a court order to recover rent.
• The law requires landlords to use licensed auctioneers to conduct the process.
• Once it is in the hands of an auctioneer, the company or agency will conduct the process under the guidance of The Auctioneers Act.

Eviction from Land.

Regulation provides that the people participating in an eviction should produce: the original national identification cards; the official or staff identification cards; a letter of authorization from the owner; or a letter from the Commission in case of public land.

Regulation 67(2) provides that the letters of authorization to carry out evictions must be copied to the national government administration in the county and to the Officer Commanding Police Division of the area in which the land is situated.

 Regulation 68 stipulates that eviction should be carried out between 6 am and 6pm while Regulation 70 provides the manner in which the notices should be served on the evictees

Eviction by force

While this is within the rights of the property owner, eviction must be carried out in a humane manner. The procedures to be followed during forced evictions include:

1. an opportunity for genuine consultation with those affected;
2. adequate and reasonable notice for all affected persons prior to the scheduled date of eviction;
3. information on the proposed evictions, and, where applicable, on the alternative
4. especially where groups of people are involved, government officials or their representatives to be present during an eviction;
5. all persons carrying out the eviction to be properly identified;
6. evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise;
7. provision of legal remedies