KENYA Law and Practice Contributed by: Anne Kinyanjui and Loice Erambo, DLA Piper Africa, Kenya (IKM)
nal. In this case, eviction 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 Con- demnation, Expropriation or Compulsory Pur- chase . 6.23 Remedies/Damages for Breach Restrictions on Damages There are no statutory limitations on damag - es 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 discre - tion of the trial court. For special damages, 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 contrac - tually negotiated. Typically, the lease will provide for a security deposit that will be forfeited in the event of a default by the tenant. See 6.16 Forms of Security . The following statutes prescribe other remedies available to landlords in the event of a tenant breach: • Section 65 (2) (b) of the LA prescribes the landlord’s right to terminate a lease due to non-payment 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. • Section 74 of the LA prescribes the landlord’s right of forfeiture if a tenant breaches the terms of a lease or is adjudicated bankrupt or goes into liquidation (as applicable). The
provision is not mandatory, and the parties can exclude it in their lease. However, in any event where the landlord invokes the right of forfeiture, they must comply with the notice requirements under Section 75 of the LA. Further, Section 76 of the LA permits the tenant to apply to court for reliefs against the landlord’s right of forfeiture. • Section 3 of the Distress for Rent Act (DRA) provides for the landlord’s right of distress when rent is in arrears. Distress for rent involves appointing a licensed auctioneer to seize the tenant’s assets for purposes of sale to recover the rent owed. The DRA prescribes the notice requirements, goods that may be seized, time for levying distress and proce - dures to be followed. The tenant may chal - lenge the distress proceedings if the proper procedures are not followed. 7. Construction 7.1 Common Structures Used to Price Construction Projects The price of construction projects is determined by the procurement method. For government- related contracts, competitive bidding is gen - erally required, so it is preferable for the price of the project to be fixed or capped. The price would typically include the construction costs and professional fees for the project team. For negotiated contracts, there is more flexibility on pricing. The cost may be estimated but free of any cap. The parties may also enter a cost- reimbursable agreement, which would cushion a contractor if the construction costs exceeded the estimates.
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