Who are Protected Tenants?

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Controlled Tenancy (commonly known as Protected Tenancy) is related to two kinds of Property use in Kenya namely Residential and Commercial.

They spring from two different laws that is Rent Restriction Act (Cap 296) Laws of Kenya which relates to Residential Properties and Landlord and Tenant Act (Shops, Hotels and Catering Establishment) (Cap 301) Laws of Kenya, which relates to Commercial Properties.

The Rent Restriction Act applies to dwelling houses with monthly rents of Kenya Shillings Two Thousand Five Hundred (equivalent to approximately thirty US dollars at current exchange rate) and below. The statute restricts increase of rent, right to possession, execution of premiums and provides for fixing of standard rents. 

The Landlord Tenants Act defines a controlled tenancy as one where: 

  1. Either the Property lease has not been reduced into writing; or 
  2. Has been reduced into writing and which is for a period not exceeding 5 years; or 
  3. If the lease has a termination clause otherwise than via breach of Covenant. 
Despite the above provision, a controlled tenancy cannot arise where one of the parties is a government department or agency or a local authority. 
 
The Act is intended to protect tenants from the exploitation and eviction from business premises by the landlord. 
 
The Salient provisions of the Act include but are not limited to: 
 
  1. Termination or alteration of the terms of the Lease can only be subject to the Act’s provisions which require 2 months’ tenancy notices which may still be contested before the Tribunals as established under the Act. 
  2. Tenants can apply for rent assessment or review or alteration of the terms of the tenancy and the Tribunal has power to decide how much rent is paid.
  3. Termination of the tenancy can only be based on the grounds listed under the Act and such termination can be challenged by reference to the Tribunal. 
  4. It is to be noted that there is nothing in the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act to suggest that the death of a tenant would terminate a controlled tenancy under common law. A tenancy does not determine by the death of the lessee but will rest in the legal personal representatives who are entitled to give or receive proper notice to quit. 
  5. The landlord can only levy distress for rent upon getting an order from the Tribunal.
  6. The powers of the Tribunal extend to varying the rent payable, permitting the levy of distress of rent, fixing the amount of service charge payable, awarding tenants losses for termination of tenancy among other things. 
The Primary Jurisdiction to resolve Controlled Tenancy disputes vests with the Business Premises Tribunal. It should be noted that an Appeal from the decision of the Tribunal lies in the High Court and the decision by the High Court is thus final.
 

Alibhai F. Hassan

Senior Partner