PRELIMINARY ADVISORY OPINION ON LANDLORD & TENANTS RIGHTS IN KENYA

THAT the Kenyan Law on Landlord tenants obligations and rights is a bit vague and is contained in various laws namely;

a)       The Landlord & Tenant ( Shops & Catering Establishments) Act.

b)      Rent Restrictions Act

c)       The Distress for Rent Act

d)      Land Act.

2.      THAT under the Landlord & Tenant Act, the tenancies covered are those relating to commercial/businesses tenancies and disputes emanating from these tenancies if there are below 5 years, should be referred to the business premises tribunal, the tribunal operates as a circuit and therefore there are major delays and violation of access to justice by parties.

3.      THAT under the Rent Restrictions Act, it generally provides for dwelling houses, however the Act restricts the same to dwelling houses with a Standard rent of below Kshs2500, and therefore with the current economic dispensation, it means that the Act locks out majority of dwelling houses tenancies.Disputes emanating from the tenancies falling within the Act should be referred to the Rent Restrictions Act.

4.      THAT the Land Act, which is the substantive law on matters land, provides for clarity on the rights of landlord and tenants under its PART VI, which provides for various leases and of importance a periodic lease, that arises when parties have not written down the agreement, in that case the lease is renewed on a periodic basis on acceptance of the rent.

5.      THAT under the Land Act, there are implied rights and obligations implied in every lease namely;

a)       the tenant has the following obligations amongst others;

                                            i.            to pay rent.

                                          ii.            to keep the premises in a habitable condition.

                                        iii.            to  allow inspection by landlord on  reasonable notice.

                                         iv.            not to sublet without consent.

b)      the Landlord has the following obligations amongst others;

                                            i.            to allow tenant peaceable  occupation.

                                          ii.            not to derogate from the tenancy ie not to allow use of the premises in a manner making it impossible for tenant to utilize the tenancy.

                                        iii.            to repair and  keep premises habitable.

                                         iv.            to pay tax and rates.

6.      THAT it is important to note that the landlord must give requisite notices before termination or eviction and even before change of terms.

7.      THAT whenever there is a transfer, the transferee takes the land with its burdens, which will extend to the tenants together with the prior terms they had with the transferor.

From the going it is clear that the Kenyan Law must be reformed to give clarity and this explains why in 2021 Parliament enacted a consolidated law known as the landlord and tenant bill, we hope that the same will be passed into law soonest.

COMPANY BENEFICIAL OWNERSHIP DISCLOSURE IN KENYA

 COMPANY BENEFICIAL OWNERSHIP DISCLOSURE IN KENYA.

A beneficial owner has  been referred to  be the ultimate owner or controller of a legal person, either their ownership interests or positions held within the legal entity some of such persons include; natural persons who control the entity through ownership interests, also known as (threshold approach), shareholders who exercise control alone or together with other shareholders including through any contract or relationship, also known as( majority approach), natural persons who control the entity through other means for instance personal connections, natural person who exerts control without ownership but participates in its financing and natural persons who control the entity through  strategic decisions which fundamentally affect its business

In 2013, FAFT (Financial Action Task Force) revised its Recommendation 24, so as to include measures for obtaining detailed customer identification and verification as well as to distinguish between high risk and low risk countries.

The objective of the FAFT recommendation on beneficial ownership disclosure is to prevent the misuse of legal entities for money laundering or terrorist financing, but the same can be useful standard   to detect other related offences such as corruption and tax evasion.

Pursuant the FAFT Recommendations, the Kenyan Law under Section 93 of the Companies Act, 2015 stipulates that a company shall make a disclosure of the beneficial owners of its shares and prepare a register of the same. 

This provision therefore  incorporates the OECD (Organisation for Economic Co-Operation and Development) principles on beneficial ownership as recommended by Financial Action Task Force (FAFT), it is opined that even though the beneficial ownership principle has been argued as ineffective tool for reason it has a wide threshold of 25 percent shareholding, for an owner to qualify to be a beneficial owner of a company, the Kenyan Beneficial Owners regulations have capped the threshold at 10 percent shareholding, to this end it is opined  that the capping  will be effective in curbing the use of offshore accounts for money laundering, corruption and tax evasion by public officers.

It is pursuant the regulations that the registrar of companies has issued a deadline of 30^th January 2021 deadline for the registration of beneficial owners of all private companies, with a penalty of Kshs500,000 for non-compliance.

CHEGE KAMAU ADVOCATE

Partner @ CHEGE & SANG CO ADVOCATES.

LLM candidate UoN (Financial Secrecy Jurisdictions/offshore Accounts)

LEGAL ADVICE FORFOREIGNERS VISITING AND STAYING IN KENYA

Dear Advocate chege

I have a foreign girlfriend who is interested in visiting kenya, please advise me on what she is required to

do and if we can eventually marry and she becomes a kenyan citizen.

regards

Peter

 Thank you Peter for your emailwe wish to advise as follows;

1.      THAT before traveling to Kenya  or at the airport the foreigner should obtain a visa,however nationalities from the following countries do not require a visa;Bahamas, Bangladesh, Barbados, Botswana, Brunei-Darussalam, Cyprus, Dominica, Ethiopia, Fiji Islands, Gambia, The, Ghana, Grenada, Jamaica, Kiribati, Lesotho, Malawi, Maldives, Mauritius, Namibia, Nauru, Papua New Guinea, Samoa, San Marino, Seychelles, Sierra Leone, Singapore, Solomon Islands, St Lucia, St Vincent & The Grenadines, Swaziland, Tanzania, Tonga, Turkey, Tuvalu, Uganda, Uruguay, Vanuatu, Zambia, Zimbabwe.

2.      THAT the visa can be renewed for another  3 months at the immigration offices in Nairobi, Mombasa, Kisumu, So that the total time a foreigner can stay in Kenya on a tourist visa is 6 months.

3.      THAT  foreigners who remain in Kenya for more than three months (90 days) must register as an alien and get an alien registration card, whose requirements are;

ü  be over 18 years of age

ü  the Applicant must have a valid travel documents.

ü  have valid immigration status, for example, a valid entry permit

ü  be resident in the country for more than 90 days from date of entry into Kenya

ü   2 passport size photographs.

ü  self presentation to an immigration officer for registration

ü  applicants must be fingerprinted.

4.      THAT the validity of the alien card is two years upon which it can be renewed.

5.      THAT generally a  person  will better be placed as a foreigner living in Kenya if the person is engaged in some economic activity as such it is advisable for a foreigner to incorporate a company and start a business while in Kenya

6.      THAT foreigner can also become a Kenyan citizen by marriage upon satisfying the following;

ü  Must be married to a Kenya for at least 7 years.

ü  The marriage must be a recognized marriage in Kenya.

ü  The person must  not be a prohibited immigrant.

ü  The person must not be a convict.

ü  The person must not be undischarged bankrupt

ü  The marriage must not be for the sole purpose of acquiring citizenship

ask the lawyer: The law on securitiesThe sources of the law on s...

THE LAW ON FAIR HEARING IN CIVIL CASES IN KENYA

BY DANIEL CHEGE LLB(HONS)

Article 50 of the constitution of Kenya provides for that every person is entiled to a Fair hearing,which  is an ingreadient to Natural justice.The principles of natural justice have been developed and followed by the judiciary to protect the right of the public against the arbitrariness of the administrative authorities. Natural Justice implies fairness, reasonableness, equity and equality. In Roman law the concept of natural justice consists of two essential rules:

1.      audi alteram partem,- the person, who has to be effected by a decision has a right to be heard; and

2.      nemo judex in re sua – the authority deciding the matter should be free from bias.

In the case of Ridge v. Baldwin⁸ , the applicability of natural justice to the quasi-judicial bodies took place. Ridge v. Baldwin is regarded as the Magna Carta of natural justice. The judgment of LORD REID widened the ambit of natural justice.Whenever this requirements are violated, the aggrieved party can apply for judicial review.

THE  KENYAN  POSITION

Fair hearing as an ingredient of Natural Justice is Provided for Under Article 50 of the constitution and Whenever Natural justice is denied, the aggrieved party can apply for judicial review provided under ORDER 53 of civil procedure rules 2010.Fair Hearing is operationalized by various laws, most importantly  the civil procedure rules 2010 under the following provisions;   

RULE OF FAIR HEARING.

The maxim audi alteram partem accentuates the rule of fair hearing. It lays down that no one should be condemned unheard. It is the first principle of the civilised jurisprudence that a person facing the charges must be given an opportunity to be heard, before any decision is taken against him. Hearing means ‘fair hearing’.The norms of reasonableness of opportunity of hearing vary from body to body and even case to case relating to the same body. In Cooper v. Wandsworth Board of Works¹⁷ , BYLES J. observed that the laws of God and man both give the party an opportunity to defend himself. Even God did not pass a sentence upon Adam before he was called upon to make his defence.

COMPONENTS OF RIGHT TO FAIR HEARING.

·         Right to notice

·         Right to know the evidence against him

·         Right to present case and evidence

·         Right to counsel.

1.      Right to notice. The term ‘Notice’ originated from the Latin word ‘Notitia’ which means ‘being known’. Thus it connotes the sense of information, intelligence or knowledge. Notice embodies the rule of fairness and must precede an adverse order. It should be clear enough to give the party enough information of the case he has to meet. There should be adequate time for the party, so that he can prepare for his defence. It is the sine qua non of the right of hearing. If the notice is a statutory requirement, then it must be given in a manner provided by law. Thus notice is the starting point in the hearing. Unless a person knows about the subjects and issues involved in the case, he cannot be in the position to defend himself.

The notice must be adequate also. Its adequacy depends upon the case. But generally, a notice, in order to be adequate must contain following elements:

·         Time, place and nature of hearing.

·         Legal authority under which hearing is to be held.

·         Statements of specific charges which the person has to meet.

This component is operationalized in Kenya by the following provisions of the civil procedure rules 2010

ü       ORDER 1 rule 15 provides for notice to third parties( third party proceedings)

ü       ORDER 3 rule 2(d) formal requirements  which presupposes notice that is a Demand letter.

ü       ORDER6  provides for appearance of parties

ü       ORDER 22rule 57 provides for the notification n of sale

ü       ORDER 53 provides for the application for Judicial  review

2.Right to know the evidence against him. Every person before an administrative authority, exercising adjudicatory powers has right to know the evidence to be used against him.. A person may be allowed to inspect the file and take notes. This component is operationalized  by

ü       ORDER 11 and1 of the civil procedure rules2010,Which provides for pre-trial conferences. 

3 Right to present case and evidence. The adjudicatory authority must provide the party a reasonable opportunity to present his case. This can be done either orally or in written. The requirement of natural justice is not met if the party is not given the opportunity to represent in view of the proposed action.

This component is operationalized  by

ü       ORDER 18 provides for hearing of suit and examination of witnesses.

3 Right to counsel. For sometime the thinking had been that the lawyers should be kept away from the administrative adjudication, as it saves time and expense. But the right to be heard would be of little avail if the counsel were not allowed to appear, as everyone is not articulate enough to present his case. In India few statutes like the Industrial Disputes Act, 1947, specifically bar the legal practitioners from appearing before the administrative bodies.

This component is operationalized  by

ü       ORDER 9 and1 for representation by an advocate or in person.

CONCLUSION

The rule of fair hearing must be followed to prevent  miscarriage of justice. If an accused is punished unheard, the purpose of law is defeated. The adjudicatory authority does not know whether the accused is innocent or not. What if the accused is punished unheard and later he turns out to be an innocent?

HOW TO LEGALLY BUY LAND IN KENYA

Hallo Wakili,

My name is Koech kindly advise me on the process entailed on the disposition of land.

Thank you Bwana for your question Koech well  i wish to advice you as follows;

1.      When  purchasing land a principle known as Caveat Emptor which literally means buyer be aware is applicable, as such before buying land an investigation on the title must be conducted this search is two fold namely; official search on the title and physical visit on the property. The search is critical so as to avoid buying property which is defective in terms of title and quality.

2.      The law provides that any disposition of land that is; purchase or sale of land must be in writing failure of which such transaction becomes void. It therefore follows that any purchase or sale of Land must be reduced into a written sale agreement. This was not the case prior 2003 as then the law provided that any disposition in land may be evidenced in writing or by possession.

3.      Once a search is conducted and the title verified the parties should agree and execute a sale agreement, normally the purchaser pays a deposit of 10 per cent and the balance on completion of the sale.

4.      On completion the purchaser should provide the balance and the vendor should provide the following documents;

a)      Original Title Deed.

b)     Executed but undated instrument of transfer of the property in favour of the Purchasers.

c)      Consent to transfer from the relevant Land Control Board(if the land is agricultural)

d)     Rates Clearance Certificate valid for at least 30 days from the date of its delivery to the purchasers.

e)      Vendor’s passport size photographs, copies of Pin Certificate and I/D cards

f)       Any other document necessary or as may be required by the Purchasers’ Advocate for the effectual completion of the transaction.

Once the completion is complete, then the purchaser should proceed to effect the transfer so that the title can come out in his names.

I hope you find this helpful