KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
Controlled tenancies (see 6.3 Regulation of Rents or Lease Terms ) may only be terminated in accordance with the LTA, which requires the other party’s consent to be obtained. The aggrieved party can challenge termination at the BPRT. In this case, termination of the lease will be subject to BPRT’s orders. The termination of commercial leases can also be challenging, since these leases generally do not con - tain termination provisions so as to avoid creating controlled tenancies under the LTA. In these instances, termination is by agreement between the parties or by the issuance of reasonable notice, which depends on the circumstances of the case. 6.20 Registration Requirements Short-term leases for two years or less without the option of renewal are not registrable. Long-term leas - es for more than two years are required to be regis - tered under the LRA. Leases are required to comply with the formalities of a valid contract. The lease will also be subject to stamp duty, charged at a rate of 2% of the average annual rent. The stamped lease is lodged at the relevant land registry for registration. An entry of the registered lease will be made on the title document and on the deed file of the property maintained by the land registry. The tenant meets the registration costs and the legal fees of its advocates and the landlord’s advocates. Long-term leases of a period of 21 years and above, and which confer ownership, are deemed to be trans - fers of title. Accordingly, stamp duty is payable at 2% of the value of the leased premises if located in a rural area, or at 4% of the value of the leased premises if located in an urban area. Upon registration, a title is issued to the lessee, who bears the registration costs and the legal fees of its advocates and the landlord’s advocates. 6.21 Forced Eviction Where a lease is lawfully terminated by a landlord as discussed in 6.19 Right to Terminate a Lease , or on expiry of the lease term, the landlord should first comply with the lease terms and applicable statutory termination or forfeiture requirements. If the tenant remains in occupation without consent, the landlord
should seek vacant possession through the appropri - ate legal process rather than rely on forcible eviction. A landlord is required to obtain a court order to evict a tenant. A tenant may apply to the ELC to challenge the evic - tion notice. For controlled tenancies, the tenant may challenge the eviction notice at the BPRT. In this case, eviction will be subject to the BPRT’s orders. For com - mercial leases, the tenant may challenge the eviction notice in courts of law. In this case, eviction will be subject to the court’s orders. For leases in respect of dwelling houses of a standard rent below KES2,500, the tenant may challenge an eviction notice at the Rent Tribunal. In this case, evic - tion will be subject to the Tribunal’s orders. 6.22 Termination by a Third Party A lease can be terminated by the government in cases of compulsory acquisition; see 2.9 Condemnation, Expropriation or Compulsory Purchase . 6.23 Remedies/Damages for Breach Restrictions on Damages There are no statutory limitations on damages that a landlord may collect in the event of a tenant breach. However, under the common law rules governing the award of damages and case law, general damages are at the discretion of the trial court. For special dam - ages, the landlord would have to prove actual losses that have been incurred in monetary terms as a direct result of the tenant’s breach. Remedies The remedies available to a landlord are contractu - ally negotiated. Typically, the lease will provide for a security deposit that will be forfeited in the event of a default by the tenant. The following statutes prescribe other remedies avail - able to landlords in the event of a tenant breach. • Section 65 (2) (b) of the LA prescribes the land - lord’s right to terminate a lease due to non-pay - ment of rent or breach by the tenant of any other obligations. This is an implied covenant that the parties can exclude from their lease arrangement.
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