KENYA Law and Practice Contributed by: Anne Kinyanjui and Loice Erambo, DLA Piper Africa, Kenya (IKM)
6.19 Right to Terminate a Lease Section 73 of the LA allows the landlord to ter - minate a lease if the tenant: • commits a breach of its express or implied obligations under the lease; or • 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 occur - rence of a force majeure event. Controlled tenancies (see 6.3 Regulation of Rents or Lease Terms ) may only be terminat - ed 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 do not con - tain termination provisions so as to avoid creat - ing 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 leases for more than two years are required to be registered under the LRA. Leases are required to comply with the formali - ties of a valid contract. The lease will also be subject to stamp duty, charged at the rate of 2% of the average annual rent. The stamped lease is lodged at the relevant land registry for regis -
tration. 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 their 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 transfers of title. Accordingly, stamp duty is payable at 2% of the value of the leased prem - ises if located in a rural area, or at 4% of the val - ue 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 their 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 , the tenant may be evicted by the issuance of an eviction notice of at least three months. Eviction must comply with the law, particularly Section 152G of the LA. A tenant may apply to the ELC to challenge the eviction notice. For controlled tenancies, the tenant may chal - lenge the eviction notice at the BPRT. In this case, eviction will be subject to the BPRT’s orders. For commercial 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 Tribu -
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