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The tenant that you can’t kick out of your house

By Peter Theuri | August 13th 2020 at 10:00:00 GMT +0300

A property where over 30 tenants were evicted at Kaptembwo Estate in Nakuru on April 10, 2020.The toilets were demolished by the landlord in an effort the evict the tenants. [Kipsang Joseph, Standard]

If you pay rent of Sh2,500 or less every month, you are safe from your landlord’s attempts to suddenly increase your charges even if he or she wakes up on the wrong side of the bed.

The landlord would have to first visit a tribunal, which would guide on the procedures of altering the rent - but even then, you can revel in a safety net not every other tenant enjoys.  

Time, courtesy of a tribunal, protects low-income earners from untimely evictions.

The Covid-19 pandemic has devastated people’s earnings and even rent of Sh2,500 a month might be a tall order for many struggling households.

In the last few months, there have been endless battles between landlords and tenants as the latter claim inability to honour their rental obligations, with some property owners running out of patience and kicking out such occupants.

Above the landlords in the food chain lies the taxman, happy to crack the whip on landlords that defy payment of rental income tax, which was introduced in 2016 and has seen many property owners summoned over non-payment.

The Rent Restrictions Act Cap 296 of the laws of Kenya protects low-income tenants from harassment by landlords.

It also establishes the rent tribunal, which is tasked with determining disputes between landlords and tenants of protected tenancies.

“The Rent Restrictions Act ensures that the most vulnerable people in society are protected,” says Mwenda Makathimo, a real estate expert and land economist.

“One has to go and apply to the rent tribunal and cite what obligations the tenants have failed to comply with, and apply for orders to evict them. The tenants are allowed to come and defend themselves.”

The court could, for example where the landlord fails to carry out any repairs for which he is liable, order the landlord to carry out such repairs within such time as the tribunal may stipulate.

If the landlord fails to comply with the order, and upon application by notice of motion by the tenant, the tribunal will authorise the tenant to execute the repairs and deduct the cost accrued from the rent.

Protected tenancies, which the tribunal takes care of, are short term leases in which, according to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, the tenancy has not been reduced into writing.

In the event that it has been reduced into writing, it should be for a period not exceeding five years. It should also contain a provision for termination, other than for breach of covenant, within five years from the commencement.

But while this is a provision in the Landlord and Tenant Act, which works for commercial establishments, tenants in residential buildings can also seek reprieve in a related protection offered in the Rent Restriction Act.

The residential law only applies to houses with monthly rents of Sh2,500 and below. The law prevents increase of rent and right to possession without leave of the tribunal.

Further, if landlords are unhappy with their tenants, they are required by law to follow correct procedures to see them exit the units they occupy. This means that they have to go through the tribunal to have their complaints considered.

Makathimo says the same protection is not enjoyed by those who pay above Sh2,500 in monthly rents. However, the tenancy agreement must be followed when planning to evict them, or to increase rent, with notice given.

“If they are in breach of an agreement, there is a tenancy notice for termination. If they are in breach and you give them the notices to leave and they do not leave, then you go apply for eviction orders either from that tribunal or from a magistrate’s court,” he says.

The landlord can cite reasons for wanting to reclaim his property from a protected tenant but has to do it under conditions, such as if some rent lawfully due from the tenant has not been paid, or some other obligation of the tenancy.

If the tenant, or any person residing with him, has been guilty of conduct which is a nuisance or annoyance to adjoining occupiers, or has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose, the landlord may try to reclaim the house.

Further, if the condition of the premises has, in the opinion of the tribunal, deteriorated owing to acts of waste or neglect by the tenant, the tribunal may give the landlord an ear.

Other conditions would include that the tenant has given notice to quit, and in consequence of that notice the landlord has contracted to sell or let the premises or has taken any other steps as a result of which he would, in the opinion of the tribunal, be seriously prejudiced if he could not obtain possession.

Also, if the premises are reasonably required for the purpose of the execution of the statutory duties or powers of a local authority or public body, or for any purpose which, in the opinion of the tribunal, is in the public interest, or in a case where the tenant has, without the consent in writing of the landlord, assigned, sublet or parted with the possession of the premises or any part of the same.

Section 29 of Cap 296 of the Rent Restriction Act further prohibits landlords and any agent from evicting a tenant without the permission of a tribunal to so do.

In the case where a landlord is unhappy with the tenant, it is illegal, as is wont with a lot of landlords, to do things that are meant to frustrate the tenants with an aim of compelling them to leave the house.

“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 shall be guilty of an offence and liable to a fine not exceeding six thousand shillings or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment,” reads the Act.

Where the landlord has, with the consent of the tribunal, let the premises for a definite period, and the landlord requires the premises at the expiry of that tenancy for his own occupation or for the occupation of his wife or minor children or for some person in his whole-time employment, and also where the landlord requires possession of the premises to enable the reconstruction or rebuilding thereof to be carried out, and has given to the tenant not less than six months’ written notice of that requirement, the owner of a building can then seize it from the tenant.

However, it would all require the tribunal to hear and determine, if such an action is possible. And knowing that that is a process bound to take time, then the tenant is inadvertently allowed time to sort the mess before lightning can strike.

That some of these tenants are crafty and use the protection accorded by law to default on their responsibilities means that many landlords elect to charge anything in excess of Sh2,500.

Oftentimes, the occupancy depends on the integrity of both the landlord and the tenant.  

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Covid-19 pandemic Rent Restrictions Act Rent Landlord and Tenant Act Housing Real Estate
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