KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
Short-Term Leases The LA defines a short-term lease as a lease for a term of two years or less without an option for renewal. A short-term lease is also a periodic lease. Periodic Leases The following are periodic leases: • leases of an unspecified term with no provi - sion for the giving of notice to terminate the tenancy; • 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 pay - able; • 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 otherwise; or • where an owner allows exclusive occupation of their land or part thereof for rent but with - out 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 execut - ed. 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 pos - session and enjoyment of the leased prem - ises; • 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 provi - sions other than for breach of covenant within five years of commencement of the lease; and • leases over business premises gazetted as controlled tenancies. 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 specified and no provision is made for the giv - ing of notice to terminate a tenancy, the lease is
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