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Eviction: Tough rules beckon landlords

HOME & AWAY
By Frankline Sunday | March 4th 2021

Residents of a house owned by Kenya Railways carry away their belongings heaped outside after the expiry of an eviction notice on October 03, 2016 in Kisumu. [Denish Ochieng, Standard]

Landlords who evict tenants or seize their belongings for defaulting on rent could face six months in prison or a fine of up to twice the amount in dispute.

This is according to the proposed Landlord and Tenant Bill, 2021 that seeks to overhaul Kenya’s existing legislation governing the rights of the respective parties in both residential and commercial property.

“A landlord and any agent or servant of a landlord who evicts a tenant without the authority of a tribunal or willfully subjects a tenant to any annoyance with the intention of inducing or compelling the tenant to vacate the premises or to pay, directly or indirectly a higher rent for the premises commits an offence,” says the Bill sponsored by Leader of Majority in the National Assembly Amos Kimunya.

Such an offence could attract a six-month prison term and, or a fine equivalent to two months of the rent value of the premises in contention.

“No landlord shall, without legal process, seize a tenant’s property for default in the payment of rent or for the breach of any other obligation of the tenant,” the draft law says.

Landlords will also be compelled to keep signed records of all the rent paid and share the record with tenants.

The rent records shall contain details of the person or people that are parties to the tenancy, details on the rented premises and of all rent paid.

Failure to keep a record could earn a landlord a fine not exceeding one month’s rent.

If a tenant dies or abandons the premises while in rent arrears, landlords will be required to apply to the tribunal to sell or dispose of the tenant’s property still within the premises.

“Before the landlord calls or otherwise disposes of a tenant’s property, an inventory of the goods in the premises shall be taken by an officer of the tribunal and be filed in the tribunal,” says the Bill.

In case a member of the tenant’s family or an administrator of the estate claims the property within six months, the landlord will be required to deposit any excess proceeds from the sale of the tenant’s belongings, less rent arrears or expenses incurred in the auction.

The Landlord and Tenant Bill will repeal the Distress for Rent Act (Cap 293), the Rent Restitution Act (Cap 296) and the Landlord and Tenant (Shops Hotels and Catering Establishments) Act, collapsing them into one legislation.

“The Bill seeks to introduce a legal framework which balances the interests of landlords and tenants in a free market economy by ensuring that landlords earn reasonable income from their investment in housing and also protects the tenant,” says Amos Kimunya in a memorandum accompanying the legislation.

The draft legislation proposes the establishment of a tribunal through the Judicial Service Commission (JSC) whose function will be to adjudicate disputes brought forward by landlords or tenants.

The tribunal, with five full-time members, will be chaired by a person qualified to be appointed a High Court judge, a deputy chairperson that has served as an advocate and three members, one of whom should have expert knowledge of valuation of premises.  

In discharging their duties, the Bill gives sitting tribunals far-reaching powers to give determinations that will be binding to both landlords and tenants.

For example, the tribunal can determine, assess or vary the rent payable in any premises and tenancy period.

It can also determine the service charge payable on a particular property, how much each tenant in the building should contribute and demand payment of rent arrears or service charge.

The tribunal will also have the power to force landlords to carry out repairs that they are liable for or authorise tenants to pay for the repairs and deduct the same from their monthly rent.

Failure to comply with the decision of a tribunal attracts a fine of up to Sh100,000 or a one-year prison term, or both.

At the same time, failing to honour summons from the tribunal or skipping subsequent sessions could earn one a six-month prison term, a Sh10,000 fine or both.

The Bill has given fresh impetus to the country’s rent tribunals that have over the years been swamped with rental disputes.

According to the State of the Judiciary Report for 2019-20, the Rent Restriction Tribunal and Business Premises Rent Tribunal accounted for 76 per cent of all cases filed by the 20 tribunals last year.

The two tribunals also carry the biggest load of pending cases. Out of 28,158 pending files as of June 2020, the Business Premises Rent Tribunal and Rent Restrictions Tribunal accounted for 10,976 and 13,478 pending cases respectively.

This has also forced the tribunals to adopt circuit sessions - where tribunal members traverse the country in a bid to reach more people that cannot visit a judicial office near them.

“Through the circuits, the tribunals are able to reach members of the public in areas of the country where the tribunals do not have physical offices,” said the report.    

Last year, the Business Premises Rent Tribunal held 11 circuit sittings including in Eldoret, Nakuru, Kisumu, Kisii, Kakamega, Nyeri, Embu and Mombasa and heard 1,367 cases, out of which 644 were determined.

The Rent Restriction Tribunal held seven circuits in Nakuru, Kakamega, Kisumu, Eldoret, Mombasa, Malindi and Lamu and heard 421 cases, resolving 294.

The Landlord and Tenant Bill also makes it an offence to file a frivolous case.

“If on dismissing an application the tribunal deems it to have been frivolous, the applicant could be ordered to pay any other party to the application a reasonable sum as compensation for the trouble and expense they endured,” says the proposed law.

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