THE CATHOLIC UNIVERSITY OF EASTERN AFRICA
GROUP 1
UNIT CODE: DCLS 081
UNIT TITLE: CONVEYANCING LAW AND PRACTICE
LECTURER:KIMANI KARANJA
GROUP MEMBERS:
NAME REGISTRATION SIGNATURE
NUMBER
MARGRET MUTHEU 1048841
CHARITY BARONGO 1051589
MIGOSI
CHERONO DINAH 1051766
CHIKICHIK
SANDRA 1051818
CHEPCHIRCHIR
BARLIN LUKALISHI 1052060
MUTEYO
NYANDIEKA SHEILA 1048989
MASESE
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A lease is generally understood as a document creating an interest in land for a fixed period
of a certain duration usually in consideration of the payment of rent. Critically discuss
what leases are, the various types of leases that are available, the essential elements or
ingredients for the creation of a lease, the various rights and obligations of parties to a
lease, and the various rights and obligations of parties to a lease and various rights and or
remedies a landlord may elect to enforce in the event of a breach of a covenant by a tenant.
Leases
In Prudential Assurance Co. Ltd V London Residuary Body(1992)AC 286 Lord Templeman
explained that a lease in the following manner “demise for years is a contractfor the exclusive
possession and profit of the land for some determinate period”.
1
A lease refers to a transaction that creates the relation of landlord and tenant between the grantor
and grantee. The formal document by which this is done is a lease.
Section 2 of the Land Act defines a lease as the grant with or without consideration by the
proprietor of the land of the right to 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 to lease can be created from a leasehold (sub-lease) or from a freehold.
The essential requirement is that a lease must be for a fixed term of years although it can include
periods of less than a year. This interest in land is also known as a “term in years absolute”. It
denotes exclusive possession of land for a term certain.
In Kenyan law, a lease in conveyancing refers to a legal document creating an interest in land for
a fixed period of a certain duration usually in consideration of the payment of rent. Critically
discuss what leases are, the various types of leases that are available, the essential elements or
ingredients for the creation of a lease, the various rights and obligations of parties to a lease, and
the various rights and obligations of parties to a lease and various rights and or remedies a
landlord may elect to enforce in the event of a breach of a covenant by a tenant.
S 56 of the Land Act gives the owner of private land the power to his or her land or part of it to
any person for a definite period or for the life or for a period which though [Link] be
terminated by the Lessor or lessee subject to any conditions that may be required by the Land
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The Land Act No 6 of 2012
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Act or any other law or that the lessor may [Link] the freeholds leaseholds are capable of
subsisting being conveyed and created in law .A leasehold can be granted by the government of
public land to private individuals ,corporations ,parastatals or even another organ of the
[Link] distinctive feature in a leasehold is that a tenant is granted exclusive
possession of defined land or premises for a period of pre-arranged maximum duration.A lease is
generally capable of being assigned or subleased.
Parties to a lease are:
Lessee or tenant who is the person taking or receiving a lease.
Lessor or landlord who is the proprietor or the owner of the Land or a person giving
a lease.
TYPES OF LEASES
1)Fixed tenancy
A tenancy created for a fixed [Link] commencement and termination must be
[Link] a lease determines when the duration expires .
2)Periodic leases
2
It is provided for under section 57 of the Land Act.
The Land Act provides that where the term of the lease is not specified, no agreement in writing
but there is occupation and payment of rent, no provision is made for the giving of notice to
terminate the tenancy, the term if from week to week, month to month, year to year or any other
periodic basis to which the rent is payable, the period shall be the period for reference to which
the rent is payable, in relation to agricultural land the periodic lease shall be for six months, if the
owner of land permits exclusive occupation of the land or any part of it at rent but without any
agreement in writing that occupation shall be deemed to constitute a periodic tenancy.
A periodic lease is basically a tenancy that continues indefinitely from period to period. Such a
lease may be express or implied. Its duration is not specified and it may arise if a fixed-period
tenant remains in possession and continues to pay rent.
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The Land Act No 6 of 2012
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Termination of a periodic tenancy
By a party giving notice to the lessee not less than the period of the tenancy and shall expire on
one of the days on which rent is payable.
3)Short term leases
It is provided for under section 57 of the Land Act.
3
It is made for a term of two years or less without an option for renewal,it is a periodic lease,may
be made orally or in writing ,there is occupation and payment of rent ,it is not a registrable
interest in land.
4)Future leases
It is provided for under section 61 of the Land Act.
4
A lease may be made for a term to begin on a future date,not later than 21 years after the date on
which the lease is executed,a future lease which is expressed to be for a period of five years shall
be of no effect unless and until it is registered.
Section 59 which talks about lease terminating on the occurrence of a future event provides
that ,A lease that comes into operation after the date on which this Act comes into operation and
that provides for its termination or permits notice of its termination to be given on the occurrence
of a future event shall not be invalid provided that the event is sufficiently defined in the lease so
as to be identified when it occurs.
5)Tenancy at will
Tenancy whereby the tenant occupies premises on the terms that either part may determine the
relationship at any time.
They arise in the case of sale agreements where before completeion possession is [Link] can
be terminated at any time by the [Link] monthly tenancies 15 days notice will be needed and
for annual tenancies 6 months [Link] tenancy terminates in the event of death of any party or
commiting an act inconsistent with the tenancy.
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Section 57 of the Land Act
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Section 61 of the Land Act
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6)Tenancies at sufferance
Arises whenever a fixed period tenancy holds over or remains occupation without the landlords
consent .It is created by operation of law .If landlord accepts rent it becomes a periodic
tenancy ,however the tenant may be ejected at any time without notice.
It is created when tenant holds over the property past the end of the durational period of
tenancy,thus tenants live in the property after their lease has [Link] example if the lease is
for five years and the tenant stays on then that will be a tenant of [Link] occurs without
the landlord’s permission but he collects rent [Link] the landlord and the tenant have
certain rights in this situation.
7)Service tenancy
Created to enable the tenant to perform a particular service. The occupation is necessary for the
performance of the service, however, the tenancy terminates on the determination of
employment.
8)Long term leases
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Section 54(5), Land Registration Act and the 6 Sectional Property Act,2020 are used to confer
ownership over sectional properties such as apartments, villas, maisonettes, and townhouses.
Registration of leases
Section 43 (2) of the Land Registration Act,2012 provides that no instrument affecting any
disposition of private land shall operate to sell, assign land ,create,transfer or otherwise affect
land, lease or charge until it has been registered in accordance with the laws relating to
registration of instruments unless the disposition is exempt from registration. However short-
term leases (leases for a period of less than 2 years ) are exempt from this requirement under
Section 58(3) of the Land Act,2012.
The Effect of an Unregistered Lease and Unexecuted Lease under the Law
(a) Unregistered Leases
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Land Registration Act
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Sectional Property Act
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Section 36(2) of the Land Registration Act provides that any unregistered instruments in land
shall be construed as contracts between the parties.
8
In Mega Garment Limited vs. Mistry Jadva Parbat & Co. (EPZ) Limited (2016) eKLR), the
Court of Appeal held while relying in the time- honoured decision in Bachelor’s Bakery Ltd v
Westlands Securities Ltd (1982) KLR 366 held that a lease does not require to be registered to
be enforceable between the parties. An unregistered lease amounts to an agreement and is valid
between the parties, however, it offers no protection against third parties to the agreement.
(b) Unexecuted Leases
In Chon Jeuk Suk Kim & another v E. J. Austin & 2 others [2013] eKLR, the Court of
Appeal held that:
“The legal character of the document under consideration in this appeal is from its form and
contents an agreement for a lease. It is common ground that the formal lease was not
executed. From the authorities, although the document does not conform legal or equitable estate
to the appellants the covenants therein would be enforceable as between the parties if it is
ultimately found to be an enforceable contract.”
Essential elements or ingredients for the creation of a lease
I. Exclusive possession
The lessee must have an interest that entitles him to exclude all other persons including
the lessor from the [Link] is a central and dispensable feature of a [Link]
Templeman in9 Street V Mountford (1985) AC 809 said whenever exclusive
possession of premises is granted for a term of a rent then prima facie a lease will be
created.
In other words the lessee steps into the shoes of the lessor as he has the control rights
associated with ownership particularly the right to exclude others including the
7
Land Registered Act
8
Kenya Law Report
9
[Link]
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[Link] the lessor has unrestricted access to the leased premises then there is no
exclusive possession and the agreement is a contractual license Westminister City
Council V Clerke (1992)2 A.C [Link] result is that the license (a lodger perhaps)is
entitled to live in the premises but cannot call the place his own.( Street V Mountford
(1985) AC 809)
Posession alone does not result in a lease .If it is not exclusive then a license is
created .The exclusiveness of possession depends on the degree of control.
II. The property must be clearly defined
The land or part thereof must be defined.
S 56 of the Land Act gives powers to lease whole or part of the land .The owner of the
land may lease the land or part of it to any person for a definite term or for the life of the
lessor or the lessee or for a period which though indefinite may be determined by the
lessor or the [Link] part of the land is being leased it shall be accompanied by a plan or
other description.
If part of the land is being leased it shall be accompanied by a plan or other description
which the registrar deems adequate to identify the property.
Ratwani V Deganela (1956)17 EACA 37 for a lease to exist the land must be [Link]
this case the lessee was to share a shop and his portion was not defined.
III. The parties must be clearly identified
IV. Determinate term
The period of a lease must be defined or capable of being defined,that is,it must have a
beginning and ending. The commencement date must be fixed or capable of
ascertainment. The term must be ascertainable. Term of years must be [Link] a lessee
has a fixed term, he can underlet or sublet the whole or a portion of his leased term. The
date of expiry must be capable of being predicted from the start of the lease.
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Avoid creating leases that have clauses for perpetual renewal. Leases can either in
possession or commence at a future date.A term made to come into effect at a passed date
is called a lease in possession.
Lace V Chantler an agreement to let premises for “the duration of the war”was held to be
void due to uncertainty of the period of the intended lease.
V. There must be an occupier (contractual or actual)
VI. The premium or rental payment is a crucial term.
The nature of a leasehold is that there is a liability to pay rent to the [Link],
the rent payable under each varies in some instances it is even set as a peppercorn rate if
demanded which in essence means that the land owner does not pay any any rent but the
government may demand nominal rates from the landlord.
10
Peppercornre rent has been provided in law under the Constitution of Kenya 2010 under
paragraph 8(1) of the sixth Schedule,”Any freehold interest in land in Kenya held by a
person who is not a Kenyan citizen shall revert to the republic of Kenya to be held on
behalf of the people of Kenya and the state will grant a peppercorn rent of 99 years to that
individual.
A peppercorn rent is defined as a small sum charged as peppercorn rent which the
leaseholder pays to the freehold owner to rent the land upon which the leaseholders
property stands on. It is a small amount paid with the intention to make something free
but some sort of consideration is needed to make the agreement lawful. Consideration is
charged to make a lease legally enforceable.
Rights and obligations of parties to a lease
Lessors Rights
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Constitution of Kenya 2010
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It is found under {Section 65 (2) of the Land Act}
1. Right to entry either personally or by agents enter leased land or buildings at a
reasonable time to inspect the condition of premises and [Link],the lessor
shall not unreasonably interfere with the occupation or use of the land or building
by the lessee.
2. Right to terminate lease By serving a notice of intention to terminate if any rent
is unpaid for one month after due date whether or not it has been demanded in
writing ,there is breach of lessees covenants by lessee for one month.
3. Right to grant consent S67(2)
The lessee cannot do anything without the consent of the lessor shall be construed
to mean that the lessor shall not unreasonably withhold the consent if the lessor
applies for the consent. If the lessor refuses to grant consent unless the lessee pays
additional rent or premium or a fine or any other consideration or imposes an
unreasonable or objects to transfer of a lease or sublease on grounds of gender or
nationality of the transferee or sublease if it will be concluded that it has
unreasonably withheld consent.
Unreasonable withholding entitles one to seek damages and recover money lost.
Chantly V Ward (1913)29 TLQ the court held that the lessor must show a solid
and substantial cause for withholding consent.
OBLIGATIONS OF THE LANDLORD/LESSOR
1). Non derogation from grant;12
A landlord must not do anything inconsistent with the tenancy. These acts which
Likely to render the premises unfit for the purposes for which they were rented.
2).Duty to ensure quiet enjoyment ;
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The Land Act No 6 of 2012
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The landlord must not interfere with the tenants’ enjoyment of the premises.
Tenant is entitled to peaceful occupation without unlawful interruption.
3).Duty to grant premises fit for purpose;
The landlord must ensure that the premises let are fit for the particular purpose
For which it was Let.
4).Duty to suspend or adjust rent;
If any damages occur without the tenant’s negligence, then the landlord is entitled
To adjust rent depending on the nature of the damages until the premises are
Rendered fit for use.
5).Duty to repair;
It is the duty of the landlord to repair the roof, main drains, installations and the
Duty is statutory if only part of a building is let.
OBLIGATIONS OF THE TENANT/LESSEE
It is found under section 66
1).Duty to pay rent;
The lessee is entitled to pay rent as agreed and is payable irrespective of the
Occupation.
2)Sustainable use of the land.
3)Yield up the Land and buildings in the same condition as they were when the term of the lease
began except for deterioration caused by ;
a. Reasonable wear and tear
b. Fire,floodor explosion not attributable to the negligence of the lesseeor the
lessees invitees or employees
c. Civil commotion
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d. Natural calamities such as lightning storm,earthquake,volcanic activity or other
natural disasters.
4)Keep all boundary marks in repair.
5).Duty to pay rates and taxes;
The lessee is entitled to pay all rates and taxes except where the landlord is
Required to pay.
6).Duty to permit the landlord to view the premises;
The lessee is entitled to enable the landlord appreciate the condition of the leased
Premises and it implies to where the lessor is bound to repair the premises.
7). Duty not to transfer or part with posession;
The lessee cannot transfer the premises without the lessor's written permission.
8). Duty not to commit to waste
The lessee cannot do anything which reduces the value of the premises
RIGHTS OF A TENANT
RIGHTS WHEN MOVING INTO A HOUSE13;
1). The lessee has the right to be in a place that is comfortable and liveable.
The landlord should make sure that his property is in good condition and
Make it easier for you to live there.
2). Right to privacy;
Once you move in, the landlord cannot enter your property without your
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Consent. It does not matter what they are trying to do, they need to have your
Permission before they can access your house. The only exception would be
If there is an emergency such as fire.
3). Right to safety;
A tenant’s safety is of utmost importance no matter where you are staying.
The landlord should make sure that the doors, windows and locks work
Properly to ensure your safety. If you want to add extra locks, you have the right
To do so.
WHEN MOVING OUT;
1). Right to get the deposit back;
The lessee has the right to get the deposit back at the end of the lease.
The duration your landlord might take to return it will depend on what
It states in your tenancy agreement.
2). Right to end lease agreement;
If you no longer want to continue residing in your house, you have the
Right to move out and serve notice. Either party can end tenancy
Depending on what is the tenancy agreement.
CASE LAW EXAMPLE;
In a rental dispute case; whereby the landlord wanted to kick out the tenant by
Name Lucy Wanyoike stating that the space she was leasing was not been
Used yet she had opened NIBS TECHNICAL COLLEGE and it already had
25 students and it was thriving. She took her case to court and produced all
The relevant documents and lawful contracts to show that her lease had not
Ended and she won the case.14
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REMEDIES AND RELIEFS
LESSORS REMEDIES
1) By court action
The lessor may opt to institute court proceedings for recovery of his [Link]
distress for rent and court proceedings to recover rent are mutually exclusive and
both cannot be pursued for rent at the same time. The lessor may sue for the balance
of arrears of rent if the purchase money from the distrained goods is insufficient.
However,the lessor cannot turn to levy distress if he had first sued for the rent and
the judgment remains unsatisfied. The recovery proceedings must be initiated
subject to the limitation period of 6years under the Limitations of Actions Act (Cap
22).
2) Distress for rent
The lessor is allowed to seize and sell the movables in the leased premises for
payment of rent arrears due. Right given under Section 3 of the Distress for Rent
Act Cap 293. It permits the distrainor/lessor to levy distress without the necessity of
court proceedings. The distrainor must be entitled to reversion at the time the rent is
due. Gusii Mwalimu Investment Co. Ltd and Others V Mwalimu Hotel Ltd
Civil Appeal No. 160 of 1995 distrained goods must remain in situ for at least 10
days. Distress must be carried out within 6 months after the expiry of lease.
3) Action for damages
To put the lessor in the position he would have been had the breach not occurred.
4) Forfeiture
Section 73 of the Land Act provides that the lessor is entitled to forfeit the lease if
the lessee:
Commits any breach or omission to perform any agreement or condition expressed
or implied in the lease, is adjudicated bankrupt or being a company goes into
liquidation.
It is exercised in two ways;if lessee is not in occupation by entering and remaining
in possession of the land and by court action.
5) Injunction to restrain the committing of a breach.
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6) The lessee may institute proceedings for injunction or damages.
7) Repudiate the agreement altogether
Lesses remedies and reliefs
1) To institute proceedings for injunction or damages.
2) Repudiate the agreement altogether.
3) S 77 of the Land Act a lessee unlawfully evicted shall be exempted from paying rent.
Termination of leases
15
1) By notice
Applicable where the tenancy is for a fixed period or where either parties desire to
terminate the leases before the duration expires .The notice must sufficiently indicate
the party's intention to terminate the lease.
2) Lapse of time
3) Surrender ;The giving up by the tenant to the landlord of the leased [Link]
surrender must be made in the prescribed form.
4) Forfeture;the right of the lessor to re-enter the premises and thereby prematurely
determine the lease in the event of certain [Link] lessor may do so pursuant to
forfeiture clause or in accordance with the ITPA or Registered Land Act,[Link] the
lessee is bankrupt or insolvent or upon the winding up of the company.
5) Merger
Under the ITPA and the Registered Land Act ,a lease terminates if a lessee or some
other person becomes becomes entitled to the property as of right .A merger must be
express.
6) Enlargement or conversion;if it is converted into some other interest,[Link] by
law.
7) Frustration; The doctrine of frustration does not apply to lease agreements, however,a
lease is terminable by frustration if the property or part thereof is rendered
[Link] 65(e) of the Land Act destruction of property through
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[Link]
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fire ,earthquakes ,civil commotion,etc,entitles a lessee to terminate the tenancy if after
6 months it has not been repairedby giving one month notice.
8) Disclaimer: The right of the lessee to disclaim the lease .He can only do so if
authorized statute.
Obligations of parties advocates
Lessors advocate
a. Obtain precise instructions from your client on;description of the property(obtain
a copy of the title),portion to be leased (if not whole),rent to be paid,proposed use
of the property by the lessee,covenants.
b. Draw the lease to reflect the wishes of your client ensure all the essentials of a
lease are included and the covenants protects your clients interest.
c. Obtain all requisite consent, [Link] to lease.
d. Ensure that the lease is properly executed and attested by all the parties.
e. Obtain stamp duty from the lessee.3years and above -2% of the annual rent.3years
and below-1%of the annual rent.
f. Register the lease.
Lesses advocate
a. Investigate lessors title;whether he has capacity to to grant the lease,whether there
are any encumberances,what consents are required,whether there are any restrictions
or provisions regarding the user of the premises and therefore to determine whether
the land can be used for purposes intended by the lessee.
b. Approve draft lease.
c. Advise your client on the contents of the draft.16Sykes V Midland Bank and
Trustee Ltd (1970) All ER 471,There was a prohibition on any other use of the
premises unless permission is granted by the lessor and head lessor the former gave
consent while the later did [Link] the solicitor ought to have] explained the
consequence of this clause.
d. Collect disbursements from your client ,[Link] duty .registration fee.
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All England Law Reports
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e. Ensure that the necessary consents have been obtained by the landlord.
f. Later,approval of renewal of lease.
g. Later drafting of instrument of surrender engrossing and having it executed by
tenant stamping and registering it.
17
h. Duties of Advocate to avoid conflict of [Link] No 9 of the Advocates
Practice rules ,no advocate may appear in any matter in which he may be called as a
witness to give evidence18 Francis Mugo & 22 others V James Muthee & 3
others 2005 eKLR application for Andrew Musangi to cease acting for plaintiff
because he drew and witnessed a lease between the defendant and other parties
relevant to the suit and would be a witness in the suit.
References
The Land Act
Kenya Law Report
Constitution of Kenya 2010
Land Registration Act 2012
Distress for Rent Act Cap 293
[Link]
[Link]
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Kenya Law Report
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