A huge number of complaints filed at the Business Premise Rent Tribunal by tenants reporting harassment by landlords reveal the reality of the unevenness in the relationship between the landlord and a tenant in Kenya.
Unjustifiable rent increment, verbal abuse, threats, utilities cut off and improper waste disposal are just but a few of the problems city tenants are faced with in the hands of rogue landlords.
The question is why do tenants choose to stay despite the manifest harassment by landlords? Simply because tenancy is rarely a choice at all.
The relationship between tenants and landlords is greatly skewed in favor of the landlord. It is rare that a tenant would walk into an apartment or a business premise and feel like they are on equal footing with the landlord.
The shortage of proper and affordable housing in Nairobi for instance has created enormous number of desperate people clamoring for the few affordable houses and homes.
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Enock Onyango a real estate agent opines that as long as there are desperate people, there will be unscrupulous landlords who abuse the power dynamic to harass, intimidate and even increase rent without following the due process.
To avoid the unnecessary inconveniences resulting from tenancy disputes, it is important that the tenant knows his or her rights under the law and as regards the tenancy agreement he is signing.
In Kenya, the laws governing tenancy and resultant disputes are two, The Rent Restriction Act Cap 296 laws of Kenya and The Landlord and Tenant (shops, Hotel and Catering Establishment Act) Cap 301.
The latter is meant to protect tenants dwelling in houses where monthly rent payable is 2500/- and below from exploitation by landlords while guaranteeing the landlord reasonable profit from his investment in housing.
It also establishes the Rent Tribunal which besides listening to the tenancy disputes offers mediation services as a cheap way of resolving disputes.
The latter was enacted to regulate tenancy created by a lease, agreement for lease or by tenancy agreement.
It also establishes a tribunal known as the Business Premise Tribunal albeit with limited jurisdiction over a special category of tenancy agreement referred to as “controlled tenancy”.
Controlled tenancy is described under the Act to mean tenancy which has not been reduced into writing or if it has been reduced into writing, runs for a period not exceeding five years or that which allows either party to terminate the tenancy before the lapse of five years.
Is the landlord allowed to increase rent? Yes, the landlord can increase rent but the same must be done in accordance with the law.
A landlord who wishes to increase rent or to change any fundamental term of the tenancy agreement including termination of the tenancy must serve a notice of not less than one month.
The notice according to section 4(5) of the landlords and Tenants (shops, Hotels and Catering Establishment must outline the reasons for increasing rent or altering a term of the tenancy agreement.
On the other hand, a tenant who wishes to object to the rent increment or termination of the tenancy must notify the Landlord within 30 days after receipt of the notice.
However, an objection alone is not enough, the tenant must before the date when the said notice is to take effect, refer the matter to the tribunal whereupon the notice shall be of no effect until and subject to the determination of the reference by the tribunal.
Illegally evicting a tenant by the landlord is considered as harassment and courts will allow actions brought by tenants for compensation for illegal eviction.
On security deposits, the tenant is entitled to a refund of the security deposit on condition that the tenant must have cleared all his or her rent arrears and that the premise is at least in the condition they were when the tenant moved in.
Lastly, lock out by landlord is against the law and does not amount to distress for rent which otherwise is a right of the landlord to confiscate household property belonging to the tenant for purposes of recovering the rent in arrears.
It violates the right to peaceful enjoyment of the possession of the premise by the tenant and places a barrier to utilisation of the premise by the tenant.