When Ruth Wanyama, a resident of Pipeline Estate in Embakasi, Nairobi, wanted to relocate to another plot, she asked for a deposit refund from the caretaker. But this soon turned into a cat and mouse game between her on one hand, and the caretaker and agent on the other.“I was told to produce a deposit receipt which I did. I was then told to go back after one week,” says Wanyama.
After taken back-and-forth for nearly two weeks, she gave up. “A week turned into two and there were no signs that I would get my money back. I was forced to write off the money and move because I had already made up my mind to move that month,” she recalls.
Many tenants in urban centres like Nairobi can identify with Ruth. It has become common for tenants to be harassed and manipulated by agents, caretakers and landlords.
Cases of tenant harassment range from being thrown out in the middle of the night to arbitrary rent increases, and withholding deposit in case a tenant wants to relocate.
Many victims of such harassments are not aware of their rights as tenants, hence giving landlords, caretakers and agents an easy time to harass and exploit them financially.
The rights and obligations of both tenants and landlords are stipulated in the Land Act. This statute governs the administration of leases and states what actions each party should take in case the case reneges on its obligations.
The roles and obligations of a tenant include paying rent on agreed time, whereas landlord is expected to ensure the house or premise is habitable.
Before renting a house, a tenant should ensure he or she signs a tenancy agreement drafted by a lawyer so that the agreement is grounded in law.
Ephraim Murigo, the Secretary General of Urban Tenants Association of Kenya (Utak), says that many tenants do not know their rights, making it easier for landlords and agents to take advantage of them.
“Most tenants don’t read the tenancy agreements before signing them hence, exposing themselves to manipulation,” says Ephraim.
Formed in 2009, Utak is a duly registered non-political society whose mandate is “to legally contribute towards the welfare of landlords and tenants in Kenya”. Murigo says his organisation, based in Nairobi, wants to ensure there is quality, conducive, living and working environment within all rental premises, residential or commercial.
It also gives guidelines for landlords, agents and managers to treat tenants reasonably, according to tenancy laws.
Murigo says tenants should know the three sections of a tenancy agreement, namely: Entry section or grand entry where a tenant prepares more to move in the house by doing a research on the new premises to know if the plot has water frequently, cleanliness, terms of rent increase, if the landlord is quick at returning deposits, among other things.
“Unfortunately, many tenants do not do the necessary research before entering the new house,” says Ephraim.
The second section focuses on the actual living in the premises. It is here that the tenant needs to know things like time to close the gates and rent payment methods. The final section is the exit, which mainly deals with termination of the tenancy agreement.
Arbitrary rent increase is usually a major bone of contention between landlords and tenants in Kenya. In 1959, Parliament passed a provision for restricting arbitrary rent increases. The Rent Restriction Act applies to all dwelling houses, other than residential houses let on service tenancies.
But this law has not made much difference because it only deals with rents up to Sh2,500 per month. It is under review to align it to the realities of today’s rental market.
“In proper tenancy agreements, the percentage by which rent will be increased — and after how long — must be indicated,” says Faith Waigwa, an advocate of the High Court and a partner at Nungo, Oduor & Waigwa Advocates.
She says it is important to indicate how rents increase in a long-term lease so that the tenant is aware from the onset.
Time to come back in the house is also where many tenant’s rights are being violated. On many plot entrance gates, you will see writings like: “No entry past 11pm.”
If a tenancy agreement does not stipulate the time a gate should be closed, some experts say, then it is wrong for a landlord to unilaterally draw rules after the tenant has taken possession of the house.
Opening and closing times are normally regulated in commercial tenancies and not residential tenancies. Such cases are normally dealt with by rent tribunals.
The Nairobi Rent Tribunal, for instance, has jurisdiction in Nairobi Area, central, eastern, north eastern regions and Kajiado, Nakuru, Narok, Baringo and Laikipia counties.
Ephraim says 30 per cent of cases in court are about deposit withholding. He says because cases drag on in courts, many give up and write off the deposits — and the money goes into landlords’ pockets.
According to Murigo, when entering a new house, a tenant is supposed to pay two forms of deposits, namely, rent deposit and security deposit.
“Rent deposit enables you to stay more, especially in case you lose your job,” Ephraim, who has also written a book titled Tenants Guide, says. Security deposit, on the other hand, caters for any damages caused by the tenant. It is the equivalent of caution money in a school situation.
Incidents of eviction where a caretaker or agents come with goons in the wee hours of the night are illegal.
Ephraim says all evictions must only be done by a court of law and not by agents, caretakers or landlords.
Section 76 of the Land Act, however, stipulates what relief a tenant has against the landlord and section 77 allows the tenant to commence action against the landlord for unlawful eviction.
It says: “A lessee who is evicted from the whole or a part of the leased land or buildings, contrary to the express or implied terms and conditions of a lease, shall be immediately relieved of all obligation to pay any rent or other monies due under the lease or perform any of the covenants and conditions on the part of the lessee expressed or implied in the lease in respect of the land or buildings or part thereof from which the lessee has been so evicted.
It adds: “…A lessee shall be considered as having been evicted from the whole or part of the leased land or buildings, if, on the commencement of the lease, the lessee is unable to obtain possession of the land or buildings or part thereof, as a result of any action or non-action of the lessor or any of the lessor’s agents or employees, contrary to the express or implied terms of the lease, provided that a lessee who is aggrieved as a result of unlawful eviction under this section may commence an action against the lessor for remedies.”
Each tenancy agreement must have a default clause stipulating what needs to be done in the event a tenant fails to pay rent.
“In most instances, a tenant is given a 30-day notice to make good their default failure to which the landlord can re-enter (exercise their right of forfeiture) the premises and take possession of the same after the expiry of the 30 days’ notice. It will be unlawful if eviction is done before the notice is issued,” says Waigwa.
Ephraim says Utak plans to introduce a certification method whereby a tenant will be required to present a letter of introduction from the former landlord to be allowed to rent a house. This, he says, will help the landlord know the whereabouts of a tenant and also help in curbing insecurity.