What is a Lease?

• The Land Act, 2012 defines a lease as the grant, with or without consideration, by the proprietor of land of the right to the exclusive possession of his or her land, and includes the right so granted and the instrument granting it, and also includes a sublease but does not include an agreement for lease.

Who is a Lessee?

• The Land Act, 2012 defines a lessee as a person to whom a lease is granted and includes a person who has accepted a transfer or assignment of a lease. 

Who is a Lessor?

• The Land Act, 2012 defines a lessor as a person by whom a lease is granted and includes a person who has accepted the transfer or assignment of the reversion of a lease.

Who May Lease Land?

• Section 56 of the Land Act, 2012 empowers the owner of private land to lease that land or part of it to any person for a definite period or for the life of the lessor or of the lessee or for a period which though indefinite, may be terminated by the lessor or the lessee.

Periodic Leases

• Section 57 of the Land Act, 2012 defines a periodic lease as any lease whose:

1. Term is not specified and no provision is made for the giving of notice to terminate the tenancy.
2. Term is from week to week, month to month, year to year or any other periodic basis to which the rent is payable in relation to agricultural land the periodic lease is to be for six months.
3. Lessee remains in possession of land with the consent of the lessor after the term of the lease has expired, then—

1. unless the lessor and lessee have agreed, expressly or by implication, that the continuing possession shall be for some other period, the lease shall be deemed to be a periodic one; and 
2. All the terms and conditions of the lease that are consistent with the provisions of sub-paragraph (i) shall continue in force until the lease is terminated in accordance with this section. 
3. If the owner of land permits the exclusive occupation of the land or any part of it by any person at a rent but without any agreement in writing, that occupation shall be deemed to constitute a periodic tenancy. 

• A periodic tenancy may be terminated by either party giving notice to the other, the length of which is not to be less than the period of the tenancy and expires on one of the days on which rent is payable.

Short-Term Leases

• Section 58 of the Land Act, 2012 defines a short term lease as a lease made for a term of two years or less without an option for renewal and one that is a periodic lease.
• A short term lease may be made orally or in writing. 
• It is important to note that a short term lease is not a registrable interest in land.

Covenants Implied in a Lease on the Part of the Lessor.

• Section 65 of the Land Act, 2012 provides for the covenants implied in a lease on the part of the lessor.
• These implied covenants by the lessor with the lessee, bind the lessor— 

1. That so long as the lessee pays the rent and observes and performs the covenants and conditions contained or implied in the lease to be observed and performed on the lessee’s part, the lessee is to peaceably and quietly possess and enjoy the land leased during the term of the lease without any interruption from or by the lessor or any person rightfully claiming through the lessor.
2. Not to use or permit any adjoining or neighboring land that the lessor owns or leases that would in any way render the leased land or any buildings on the leased land unfit or materially less fit for any purpose for which they may be used, consistent with the terms and conditions of the lease.
3. Where only part of a building is leased, to keep the roof, all external and main walls and main drains, and the common parts and common installations and facilities, including common passages and walkways in a proper state of repair. 
4. Where any dwelling house, flat, or room is leased, that the house, flat or room is fit for human habitation at the commencement of the lease and shall be kept fit for human habitation during the lease. 
5. That if, the leased premises or any part of them are destroyed or damaged at any time by fire, flood or explosion or other accident not attributable to the negligence of the lessee, or lessee’s invitees or employees; by civil commotion; or by lightning, storm, earthquake, volcanic activity or other natural disaster, so as to make the leased premises or any part of it wholly or partially unfit for occupation or use, the rent and any contribution payable by the lessee to the outgoings on the premises or a just proportion of that rent of contribution according to the nature and extend of the damage sustained be suspended and cease to be payable until the leased premises have been, once more, rendered fit for occupation and use. Where the leased premises have not been rendered fit for occupation and use within six months after their destruction or damage, the lessee shall have the option to terminate the lease after giving one month’s notice.
6. Where there is an express or implied term on the lease that the leased land or a building on it is to be used for a specific purpose or purposes, the lessee may terminate the lease, on giving one month’s notice to the lessor, if the land or building cannot be, or can no longer lawfully be, used for any of those purposes. 
7. To pay all rates, taxes, dues and other outgoings that are payable in respect of the leased land except to the extent otherwise specified in the lease.

Conditions Implied On Leases on Part of the Lessee

• Section 66 of the Land Act, 2012 provides for an implied covenant in every lease by the lessee with the lessor binding the lessee:

1. To pay the rent reserved by the lease at the times and in the manner specified in the lease. 
2. To use any land in a sustainable manner and in accordance with any conditions imposed on the use of that land by the lease, or any written law or any provisions in a grant of a public land out of which that lease has been created and, in particular, not to cut down, injure or destroy any living tree on the land unless the purpose for which the land has been leased cannot be carried out without so doing.
3. To yield up the land and buildings in the same condition as they were when the term of the lease began, except that the lessee shall not be bound to repair damage or restore the land and buildings to the same conditions they were at the beginning of the lease if the damage or deterioration of the condition is caused by—
   1. reasonable wear and tear; 
   2. fire, flood or explosion or other accident not attributable to the negligence of the lessee, or the lessee’s invitees or employees; 
   3. civil commotion; 
   4. lightning, storm, earthquake, volcanic activity or other natural disaster; 
4. To keep all boundary marks in repair.
5. To keep all buildings comprised in the lease in a reasonable state of repair.

 Registration of Leases

• The procedure for the registration of leases in Kenya is provided for in Section 54 of the Land Registration Act, 2012.
• Upon the registration of a lease containing an agreement, express or implied, by the lessee that the lessee is not to transfer, sub-let, charge or part with possession of any of the leased land leased without the written consent of the lessor, the agreement is noted in the register of the lease, and no dealing with the lease is to be registered until the consent of the lessor is produced to the Registrar.
• It is however important to note that the Registrar, upon receipt of adequate proof, may dispense with the consent of the lessor— 

1. Where satisfactory evidence is given to the registrar and the Registrar is satisfied that the lessor is dead and that there is no personal representative of the lessor.
2.   If the Registrar considers that the consent of the lessor or the personal representative, as the case may be, cannot be obtained or that it can only be obtained with difficulty or at an unreasonable expense and is to after making such enquiries as the Registrar may consider necessary in the circumstances, record on the document his or her reasons for dispensing with the consent and note as such in the register. 

• The Registrar is to register long-term leases and issue certificates of lease over apartments, flats, maisonettes, townhouses or offices having the effect of conferring ownership, if the property comprised is properly geo-referenced and approved by the statutory body responsible for the survey of land.

Lessor’s Consent to Dealing with Leases

• Where a lease contains a condition, express or implied, by the lessee that the lessee is not transfer, sub-let, charge or charge or part with the possession of the land leased or any part of it without the written consent of the lessor, and the dealings with the lease are not be registered unless— 

1. The consent of the lessor has been produced to, and authenticated to the satisfaction of the Registrar and the Registrar shall not register any instrument purporting to transfer or create any interest in that land. 
2. A land rent clearance certificate and the consent to the lease, certifying that no rent is owing to the Commission in respect of the land, or that the land is freehold, has been produced to the Registrar.

Form of a Lease

• A lease over a registered land or part thereof, other than long-term lease, is to be in Form LRA 62 set out in the Sixth Schedule. The lease for a part of the land is to be accompanied by- 

1. Original title documents or other documents relating to the land.
2. Where applicable, a land rent clearance certificate.
3. A land rates clearance certificate.
4. Where applicable, the consent of the head lessor.
5. Any other consent required for registration unless a particular consent has been endorsed on the lease document or has otherwise been dispensed with by the Registrar under the provisions of the Act; a sectional plan drawn by a surveyor and approved by the authority responsible for land survey which plan shall- 

1. Delineate the external boundaries of the parcel and the location of the demised part of the land.
2. State and show the coordinates for the part of the land being leased. 
3. State the approximate ground area of the pan of the land being leased.
4. State and show the access road for the part of land being leased as per the standards approved by the relevant county government or regulatory body.
5. State the developments (if any) being present on the part of the land being leased.
6. Have a unique number that is provided by the authority responsible for land survey.

g) A transfer of lease in Form LRA 63 set out in the Sixth Schedule; and 

h) Any other document or approval as may be required under the Act, these Regulations, or any other written law.

Form of a Long Term Lease for Part of a Building

• A lease for part of a building or a long term lease under section 54(5) of the Land Registration Act is to be in Form LRA 64 set out in the Sixth Schedule.  
• The lease is to be supported by- 

1. Original title documents relating to the land on which the building is.
2. Where applicable, a land rent clearance certificate.
3. A land rates clearance certificate.
4. Where applicable, the consent of the head lessor.
5. Any other consent required for registration unless a particular consent has been endorsed on the lease document or has otherwise been dispensed with by the Registrar under the provisions of the Act.
6.  A sectional plan drawn by a surveyor and approved by the authority responsible for land survey which plan shall-

1. Delineate the external boundaries of the parcel and the location of the demised part of the land.
2. State and show the coordinates for the part of the land being leased. 
3. State the approximate ground area of the part of the land being leased.
4. State and show the access road for the part of land being leased as per the standards approved by the relevant county government or regulatory body.
5. State the developments (if any) being present on the part of the land being leased.
6. Have a unique number that is provided by the authority responsible for land survey.

 g) A transfer of lease in Form LRA 63 set out in the Sixth Schedule 

(h) Any other document or approval as may be required under the Act, these Regulations, or any other written law. 

REFERENCES

Land Act, 2012

Land Registration Act, 2012

Land Registration (General) Regulations 2017

Contributors

Robert Muoka – Advocate of the High Court of Kenya

Should you have any questions regarding the information in this article, please do not hesitate to contact us.