The extent of a property owner’s authority in the eviction process is not absolute, as property law has evolved to impose certain limitations. This article aims to explore various scenarios that necessitate eviction and provides guidance on the legal procedures for evicting tenants or unlawful settlers.
There are different types of eviction in Kenya, and we will discuss the following categories in this article:
a. Eviction of a tenant from a residential unit
b. Eviction of a tenant from business premises protected under Cap 301
c. Eviction of unlawful/illegal settlers
i. Eviction of a tenant from a residential unit:
The law establishes safeguards for situations where a landlord intends to evict a tenant from a residential unit, particularly those units where rent is paid periodically, such as monthly or quarterly in advance. The eviction procedure primarily depends on the terms agreed upon by the parties. However, it is essential to note that eviction cannot be carried out without a court order.
Termination notice requirement:
In cases where the landlord and tenant have oral agreements or written agreements without a termination clause, Section 57 of the Land Act, No. 6 of 2012 governs the relationship. Such agreements are referred to as periodic tenancies, and the notice period should be equivalent to the interval between rent payments, as specified in Section 57(3) of the Act.
For tenants on long-term registered leases, the lease terms dictate the notice period. If the rent is paid on a monthly basis, the landlord must give a one-month termination notice. Once the termination notice period expires, the tenant becomes a trespasser, and the landlord can apply to the Environment and Land Court for an eviction order. As established in court cases such as Gusii Mwalimu Investment Co. Ltd & 2 others vs. Mwalimu Hotel Kisii Ltd, Civil Appeal No. 160 of 1995, and Teresia Irungu vs. Jackton Ocharo & 2 others [2013] eKLR, the landlord must obtain a court order for possession unless the tenant consents or agrees to vacate the premises.
ii. Eviction of a tenant from business premises protected under Cap 301:
The Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act (Cap 301 Laws of Kenya) is designed to protect “protected tenants” from eviction and exploitation. Under this Act, a landlord cannot evict a tenant without issuing a two-month termination notice, unless the parties agree to a shorter notice period.
The termination notice must specify the grounds for termination, as provided for in Section 7 of the Act. If the tenant wishes to challenge the notice, they can respond in writing, explaining why they will not comply and file a reference opposing the notice with the Business Premises Rent Tribunal established under the said Act. The termination notice remains effective until the Tribunal hears and dismisses the tenant’s reference.
Once the Tribunal dismisses the tenant’s reference, the notice continues to its expiry, and at the end of the notice period, the tenant becomes a trespasser. At this point, the Environment and Land Court has jurisdiction over the matter. To proceed with eviction, the landlord must file a suit at the Land and Environment Court concurrently with an application for eviction.
Rules and Regulations on Evictions
It is important to recognize that a landlord does not possess unrestricted authority to evict a tenant solely based on their gender identity or related history. Unfortunately, instances of discriminatory evictions due to stigma and ignorance do occur.
The legal framework establishes a specific procedure for the eviction of tenants from properties, ensuring fairness and adherence to the law.
First and foremost, a landlord must provide the tenant with a notice of termination. This notice must adhere to the prescribed form and include the following:
- Clearly state the date on which the tenancy will end
- Be duly signed by the issuing party
- Clearly identify the premises in question, specifying the address
Furthermore, the notice should outline the details and reasons justifying the termination of the tenancy. Upon receiving the notice, it is incumbent upon the tenant to vacate the premises by the stipulated date. Failure to comply may prompt the landlord to apply to a tribunal seeking an order to terminate the tenancy and proceed with eviction.
It is essential to highlight that any attempts by landlords to raise rent as a means to coerce tenants into vacating their premises are unlawful. The law explicitly prohibits property owners from waiving a notice of termination, establishing a new tenancy, or reinstating a tenancy through a notice of rent increase without the explicit agreement of both parties. In general, it is only a Landlord and Tenant Tribunal that possesses the legal authority to authorize an eviction.
It is crucial to note that prior to issuing an eviction order, the tribunal must thoroughly assess the accuracy and justifiability of the reasons provided for eviction.
Please note that discrimination and unjust evictions are serious matters that should be addressed through legal channels.
What you need to know about Rental Increments
It is imperative to note that a landlord is prohibited from unilaterally increasing the rent of your house without providing prior notice, unless such conditions are explicitly outlined in the tenancy agreement.
Typically, rental increments occur during the renewal of a lease agreement or when a tenant decides to relocate to a different property. In either case, it is incumbent upon the landlord to issue a formal written notice specifying the effective date of the rent increase.
The notice, or letter, must be provided to the tenant at least one month in advance, allowing sufficient time to be informed of the impending changes. While the landlord may or may not provide a reason for the rental increment, it is within the tenant’s rights to contest such an adjustment.
Should the tenant choose to object to the proposed increment, it is essential to notify the landlord within 30 days of receiving the notice. The Urban Tenants Association serves as a recognized legal entity to which tenants can direct their objections regarding rental increments.
It is important to anticipate such changes, particularly when they coincide with necessary repairs or when inflationary pressures impact the housing market in Kenya.
