KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
6.4 Typical Terms of a Lease The terms of a lease are contractual, except for the implied covenants under Sections 65 and 66 of the LA (see 6.3 Regulation of Rents or Lease Terms ). Length of Lease Term The law does not prescribe the term of a lease, which is contractually agreed by the parties. For commercial leases, the term is typically above five years to avoid creating a controlled tenancy under the LTA. Furthermore, where the term of the lease is not speci - fied and no provision is made for the giving of notice to terminate a tenancy, the lease is deemed to be a periodic lease pursuant to Section 57 (1) (a) of the LA. In this case, the term of the periodic lease will be the period by reference to which rent is paid. Finally, where the lease is terminated or the term lapses and the landlord accepts rent and allows the tenant to occupy the premises for at least two subse - quent months, a periodic lease from month to month is deemed to have come into force, pursuant to Sec - tion 60 (2) of the LA. Maintenance and Repair Provisions Sections 65 (1) (c) and (d) of the LA impose an obliga - tion on landlords to keep the exterior parts of leased premises in a proper state of repair, and to ensure dwelling houses are fit for human habitation. Sections 66 (1) (c) and (e) of the LA impose an obli - gation on tenants to keep the interior parts of leased premises and boundary marks of land in a reasonable state of repair. Tenants are also required to yield up the leased premises in the same condition they were in when the term of the lease began (subject to fair wear and tear). The parties can agree to further terms. Frequency of Rent Payments The law does not regulate the frequency of rent pay - ments, which is contractually agreed by the parties. 6.5 Rent Variation The law does not regulate rent variation, except in the case of commercial leases governed by the LTA, which sets out elaborate notice requirements and allows the tenant to challenge the proposed variation
• leases whose term is from week to week, month to month or year to year, or is any other periodic basis on which the rent is payable; • where a tenant remains in possession of land with the consent of the landlord after the term of the lease has expired, unless the parties agree other - wise; or • where an owner allows exclusive occupation of their land or part thereof for rent but without there being any agreement in writing. Long-Term Leases A lease is long term if it is for a period over two years. Leases of a period of 21 years and above may confer an ownership interest to the lessee. Future Leases Future leases are leases for a term that is to begin on a future date not being later than 21 years after the date on which the lease is executed. A future lease for a period above five years must be registered. 6.3 Regulation of Rents or Lease Terms The terms of a lease, including the rent amount, are negotiated by the parties. However, Sections 65 and 66 of the LA impose some covenants on landlords and tenants, including: • the tenant’s right to peaceful and quiet possession and enjoyment of the leased premises; • the tenant’s obligation to pay rent; • the landlord’s obligation to pay statutory charges; and • the landlord’s responsibility to ensure the leased dwelling premises are fit for human habitation. The LTA further regulates the revision of rent of the following controlled tenancies: • commercial leases that are not in writing; • written commercial leases of a period below five years, or which contain termination provisions other than for breach of covenant within five years of commencement of the lease; and • leases over business premises gazetted as con - trolled tenancies.
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