KENYA Law and Practice Contributed by: Anne Kinyanjui and Bonface Abuya, DLA Piper Africa, Kenya (IKM Advocates)
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. 7.2 Assigning Responsibility for the Design and Construction of a Project The design and construction of a project may be allocated as follows. • The project proponent may undertake the planning aspect of the project in-house in consultation with relevant professionals, including architects and engineers. In the case of government projects, public partici - pation will be required in the design process. Once the design is approved, the project proponent invites bids for construction in accordance with the approved plan. In this case, the contractor’s scope of work is limited and, therefore, the cost of construction is reduced. • The project proponent may invite bids for both the planning (design) and construc - tion of the project. The competitive bidder is selected to undertake both functions. Once the final plan is approved, the contractor pro - ceeds with construction in accordance with the approved plan. 7.3 Management of Construction Risk Construction risk is largely managed as per the terms of the construction contract, which may provide for:
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