Eviction procedures in Kenya are regulated under the legal framework of the Land Act, which establishes the rights and responsibilities of both the property owners and tenants.
The Constitution of Kenya 2010 provides protections that affect eviction under Articles 40 and 43.
“Parliament shall not enact a law that permits the State or any person—(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description,” Article 40 (2)(a) of the Constitution states.
In accordance with the law, eviction should be guided by several pieces of legislation, including the Landlord and Tenant Act (Cap 301), the Rent Restriction Act (Cap 296), the Land Act (2012), and the Civil Procedure Act and Rules.
Legitimate Grounds for Eviction in Kenya
A property owner has the right to evict a tenant if the tenant defaults on the agreed-upon rent. The tenant, however, must be in arrears for two to three months, depending on the lease terms.
Before eviction, the landlord must have made formal demands requesting payment, and the grace period specified in the lease agreement must have expired.
Breach of lease terms through unauthorized structural alterations, subletting without the landlord’s consent, or causing substantial damage to the property may warrant eviction.
The landlord also has the right to evict a tenant if the lease expires or the property owner needs the property for personal use.
In some cases, it may result from the property being of public interest. Owners of property required for public development or projects may be evicted under the law.
Kenyan law establishes a structured process to be followed during eviction; failure to follow the process invalidates the eviction.
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Pre-Court Procedures
The eviction process begins with the pre-court procedure, where there is the issuance of a notice to terminate tenancy clearly stating the intention to terminate the tenancy, the grounds for termination, and the date by which the tenant must vacate.
A notice period is provided either weekly, monthly, quarterly, or annually, depending on the tenancy.
Delivery of the notice should be made personally to the tenant, sent via registered email, or delivered as specified in the lease agreement.
During the period of vacating, if a tenant fails to vacate, a formal demand for vacant possession should be issued as a final warning before legal action.
Court Procedures
Court procedure involves the filing of a suit for eviction by the landlord. Cases are typically filed in the Resident Magistrate’s Court with jurisdiction over the property location.
The court proceeds to summon the tenants to appear before the court within 14 to 21 days and to file a defense.
The legal and factual basis for eviction is evaluated by the magistrate, and a judgment is issued. An eviction order is issued specifying when the tenant should vacate.
Execution of Eviction Order
A landlord obtains a warrant of execution, and court-appointed bailiffs execute the warrant. During the eviction, an inventory of the property is taken.
Landlords regain the legal possession of the property once the eviction has been physically executed.
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Tenants’ Rights
- Proper written notice with adequate time to respond.
- Formal court proceedings before eviction.
- Opportunity to present a defense.
- Appeal rights if dissatisfied with the court’s decision.
- Collect their personal belongings within a reasonable timeframe.
- Request an inventory of any belongings retained by the landlord.
- Claim damages for wrongfully retained or damaged property.
Landlord Rights
Landlords have the right to:
- Regain possession of their property when legally justified.
- Seek compensation for damages beyond normal wear and tear.
- Collect legitimate rent arrears through court proceedings.
