KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
6.16 Effect of the Tenant’s Insolvency Under Section 73 (1) of the LA, the landlord has the right to terminate the lease if the tenant is declared bankrupt or goes into liquidation. 6.17 Right to Occupy After Termination or Expiry of a Lease The tenant generally has no right to occupy the leased premises upon the expiry of the commercial lease, unless the lease provides otherwise or the landlord’s conduct gives rise to a further tenancy. To ensure that a tenant leaves on the agreed date, a landlord should ensure that the termination clauses are clearly drafted in the lease, serve any termination or non- renewal notices in good time, avoid conduct that may be treated as creating a fresh tenancy and avoid con - tinuing to accept rent after expiry. If the tenant does not leave voluntarily, the landlord may evict the tenant; see 6.21 Forced Eviction . 6.18 Right to Assign a Leasehold Interest The lease would typically prohibit the assignment of the lease or permit assignment subject to the land - lord’s consent. If permitted, a tenant may assign its rights over all or part of the leased premises on the following conditions: • the parties execute and stamp the deed of assign - ment; • the assignee is restricted from further assigning its rights under the lease; and • the tenant settles all obligations due to the landlord as at the date of assignment. 6.19 Right to Terminate a Lease Section 73 of the LA allows the landlord to terminate a lease if the tenant: • commits a breach of its express or implied obliga - tions under the lease; or • is declared bankrupt or goes into liquidation. The lease may also allow for early termination by the parties giving reasonable notice. Termination may also be permitted in the event of the occurrence of a force majeure event.
permitted by law. Furthermore, the law imposes user restrictions on tenants, with the Physical Planning Act and county legislation regulating the use and devel - opment of land in Kenya. These restrictions may be indicated on the title document. The LA also implies covenants on the use of leased premises by tenants. 6.14 Tenant’s Ability to Alter and Improve Real Estate Section 67 (2) (e) of the LA restricts tenants from developing the leased premises beyond what is per - mitted in the lease. The landlord’s consent would be required for restricted developments and is granted on the following conditions: • the tenant complies with the applicable laws, including obtaining all development approvals; • the tenant engages the relevant qualified profes - sionals, such as architects; and • the tenant restores the leased premises to its origi - nal state (subject to reasonable wear and tear) at the expiry of the lease (unless otherwise agreed). 6.15 Specific Regulations The LA applies to all leases, whether residential, industrial or commercial. The following categories of The LTA regulates controlled tenancies (see 6.3 Regu- lation of Rents or Lease Terms ) over business prem - ises to protect tenants from exploitation, including arbitrary rent revisions and illegal evictions. Leases of Dwelling Houses Under the Rent Restriction Act (Rent Act) The Rent Act regulates tenancies relating to dwelling houses of a standard rent of below KES2,500, to pro - tect tenants from exploitation by landlords. Leases Over Agricultural Land The LCA regulates dealings in agricultural land, with the aim of advancing agricultural activities and restrict - ing ownership by foreigners. leases are governed by specific laws. Controlled Tenancies Under the LTA
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