KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
6.15 Specific Regulations The LA applies to all leases, whether residential, industrial or commercial. The following catego - ries of leases are governed by specific laws. Controlled Tenancies Under the LTA The LTA regulates controlled tenancies (see 6.3 Regulation of Rents or Lease Terms ) over busi - ness premises to protect tenants from exploita - tion, 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 protect tenants from exploitation by landlords. Leases Over Agricultural Land The LCA regulates dealings in agricultural land, with the aim of advancing agricultural activities and restricting ownership by foreigners. There has been no legislation regulating leases during the COVID-19 pandemic period. 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 has no right to occupy the leased premises upon the expiry of the commercial lease. The landlord should call for the yielding up of the premises by the tenant, and should issue eviction notices if necessary. Thereaf - ter, 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 assign - ment of the lease or permit assignment subject to the landlord’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 assignment; • the assignee is restricted from further assign - ing 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 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
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