When a tenant falls into rent arrears, many landlords are tempted to act immediately by changing the padlocks, disconnecting utilities, or locking the tenant out of the premises. In practice, this is often seen as the fastest way to recover property or pressure the tenant into paying. However, under Kenyan law, such action can expose a landlord to significant legal consequences.
The fact that a landlord owns the property does not mean they can evict a tenant without following due process. Once premises have been let out, the tenant acquires a legal right to occupy the property for the duration of the tenancy, subject to the terms of the lease. If disputes arise, including non-payment of rent, the landlord must use lawful procedures to recover possession. Taking matters into one’s own hands may amount to unlawful eviction, especially where the tenant is denied access without a court order or proper statutory process.
This principle also applies to recovery of rent arrears. While the law allows distress for rent in certain cases, the process is not informal. A landlord cannot simply remove a tenant’s goods or instruct workers to carry them away. Recovery must be conducted through a licensed auctioneer and in accordance with the legal procedure prescribed under the relevant law. Failure to do so may expose the landlord to claims for trespass, unlawful eviction, and damages.
Another area increasingly giving rise to disputes is the refund of security deposits. Many landlords withhold deposits after the tenancy ends, often citing repair costs. However, courts have shown that such deductions must be properly justified. In Michelle Muhanda v LP Holdings Limited, the High Court affirmed that disputes relating to withheld rental deposits may be determined by the Small Claims Court where the amount claimed falls within its monetary jurisdiction. The case illustrates that landlords must be able to prove actual damage beyond ordinary wear and tear, preferably supported by inspection records or clear evidence.
The practical lesson is that landlords should resist the urge to take direct action, even where rent has gone unpaid for months. Serving the proper notices and moving through the appropriate court or tribunal may take more time, but it is often far less costly than defending a claim for unlawful eviction.