Landlord and Tenant Law in Kenya: Rights, Rent and Eviction

Background: which law applies to your tenancy

The first question in any Kenyan landlord and tenant dispute is not “what does the lease say?” but “which regime governs this tenancy?” There are three broad answers.

If you rent a modest home, the Rent Restriction Act may protect you. If you run a shop, hotel, restaurant or similar business from the premises, you may hold a controlled tenancy under Cap 301. But neither Act now applies to most homes or to long commercial leases. In those cases, the tenancy agreement governs, read alongside the Land Act 2012, the Land Registration Act 2012 and the common law. This classification matters. A protected tenant has statutory rights that override the lease. An unprotected tenant has only the rights the contract gives.

Residential tenancies: the Rent Restriction Act (Cap 296)

The Rent Restriction Act protects tenants of low-rent homes. Section 3 defines a “dwelling-house” as any house, part of a house, or room used as a residence. Crucially, the Act only bites where the standard rent does not exceed KES 2,500 a month, furnished or unfurnished. That figure has never been updated for inflation. So in practice the Act now reaches only a small pool of very low-rent dwellings. Most urban residential tenancies sit outside it.

Where Cap 296 does apply, it gives real protection. The landlord cannot recover more than the standard rent (Section 9). Nor can the landlord cut off water, light or conservancy services without the tribunal’s consent (Section 23). The landlord must also keep the structure in repair and the home habitable (Section 26). And a protected tenant who stays on after the term ends becomes a “statutory tenant”, keeping the benefit of the original terms (Section 24).

The Act is administered by the Rent Tribunals. The Cabinet Secretary establishes them by notice in the Gazette (Section 4(1)). To get possession of a protected dwelling, a landlord must satisfy one of the grounds in Section 14. These include rent arrears, nuisance, the landlord’s own genuine need to occupy (on long notice), and reconstruction. The landlord must then obtain the tribunal’s order. In our view, the most valuable protection here is Section 23. A landlord who disconnects services to force a tenant out is acting unlawfully, whatever the rent dispute.

Commercial tenancies: controlled tenancies under Cap 301

Business occupiers of shops, hotels and catering establishments are the other protected group. For them, Cap 301 creates the concept of a “controlled tenancy”. Where it applies, its provisions take precedence over the lease on the matters it covers. (For the detail on drafting and negotiating these leases, see our guide to commercial lease agreements in Kenya.)

What counts as a controlled tenancy

Under Section 2(1), a tenancy of a shop, hotel or catering establishment is controlled in two cases. The first is where the tenancy has not been put in writing. The second is where it is in writing but runs for five years or less, or has a break clause exercisable within five years. Tenancies granted by or to the national government, a county government or a local authority are excluded. So whether your tenancy is controlled turns on the nature of the premises and the length of the written term — not on what the landlord asserts.

Notice and the right to resist it

A landlord cannot simply end a controlled tenancy. Under Section 4, notice must be given in the prescribed form. And Section 4(4) provides that no tenancy notice takes effect until at least two months after the tenant receives it. Importantly, receiving a notice does not mean you must leave. Instead, the tenant may tell the landlord that they do not agree to comply, and refer the matter to the Business Premises Rent Tribunal under Section 6. This must happen before the notice is due to take effect. Once referred, the notice is suspended until the tribunal decides whether the landlord has made out a statutory ground.

The seven grounds for termination

Section 7(1) allows a landlord to terminate a controlled tenancy on one of seven grounds (paragraphs (a) to (g)):

The Business Premises Rent Tribunal

The tribunal is established under Section 11(1) and its jurisdiction is set out in Section 12(1). It can determine whether a tenancy is controlled, fix or vary rent and service charges, and order possession. It can also authorise a tenant to carry out repairs where the landlord defaults, and award compensation for goodwill and improvements. When it assesses rent, it looks to the open-market letting value. Importantly, it disregards the sitting tenant’s goodwill, which often produces a figure below what the landlord is demanding. Appeals from the tribunal lie to the High Court on points of law only.

Tenancies outside both Acts: the agreement is king

Most residential leases (rent above KES 2,500) and commercial leases longer than five years fall outside the two protective statutes. As a result, the tenancy agreement governs, backed by the Land Act 2012, the Land Registration Act 2012 and the common law. In these tenancies, two points matter most.

First, put it in writing and register longer leases. A well-drafted lease should fix the rent and any review mechanism. It should also set the permitted use, repairing obligations, assignment and subletting rules, break rights, service charges, the deposit and its return, and consent for alterations. In addition, longer leases must be registered under the Land Registration Act 2012 to bind third parties and take priority. Second, there is no statutory cap on residential deposits outside Cap 296. Deposit amounts and return timelines are a matter of negotiation, so the agreement should state them clearly. Finally, a landlord owes the common-law covenant of quiet enjoyment — the tenant’s right to occupy without unlawful interference.

Eviction: the lawful process, and the ban on self-help

Whatever the regime, a landlord cannot take the law into their own hands against a protected or contractual tenant in possession. Changing the locks, removing the tenant’s goods, or disconnecting utilities to force a tenant out is unlawful self-help. For a protected tenancy the landlord must obtain a possession order from the relevant tribunal; for other tenancies, the landlord enforces through the courts. Where a dispute turns on ownership or boundaries rather than the tenancy itself, see our guide to land and property disputes in Kenya.

Rent arrears have their own regime. The Distress for Rent Act (Cap 293) lets a landlord seize a tenant’s goods to recover rent due. However, this must be done through a lawful, regulated process — not a night-time clearance of the premises. A tenant facing distress, a lock-out or a disconnection can seek an injunction from the High Court to restrain the landlord, and damages where appropriate. In our view, landlords should treat the tribunal or court route as the only route. An unlawful eviction exposes the landlord to damages. It also undermines any legitimate claim for the arrears.

What you should do now

If you are a tenant:

• Work out which regime governs your tenancy — residential Cap 296, commercial Cap 301, or contract only — before you act on any notice.
• Never assume a termination notice means you must leave. Check the notice period and your right to refer it to the tribunal before it takes effect.
• Keep records — the lease, rent receipts, and invoices and photographs of any improvements you fund — as these support rent, compensation and repair claims.
• If a landlord changes the locks or cuts services, seek urgent legal help; that is usually unlawful.

If you are a landlord:

• Confirm whether your tenancy is controlled or protected before serving any notice, and use the prescribed form and correct notice period.
• Pursue arrears and possession through the tribunal or the courts, never by self-help.
• Have leases professionally drafted and register those that require it.

How OLM Law can help

OLM Law Advocates advises landlords and tenants across Kenya on tenancy agreements, rent and service-charge disputes, controlled-tenancy references, and lawful possession and eviction — residential and commercial. Our Real Estate & Property team can review your lease before you sign, act for you before the Rent Tribunal or the Business Premises Rent Tribunal, and pursue or defend possession proceedings. Speak to John Maina, Partner, to discuss your matter.

This article is for general information only and does not constitute legal advice. For advice on your specific circumstances, please contact us.

Sources: Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 · Rent Restriction Act, Cap 296 (Kenya Law).