NATION: After graduating from the university last year and getting a job on the outskirts of Nairobi, Judy Wangui, 24, decided it was time to be independent since she had spent her years as a university student moving from one relative’s house to another.

 And to ensure that her transition to independence was as smooth as possible, she paid rent die six months in advance for a bedsitter in Ruiru Kihunguro. But three months later, the landlord increased her rent by Sh2,200, citing inflation and rental tax.

Judy says most of the tenants in the apartment were fresh from college and did not have the courage to challenge him.

“We just accepted it without much ado,” she explains, adding that they didn’t even know there were laws to protect tenants.

After that, the landlord kept coming up with flimsy excuses to demand additional money, which stretched her budget to the limit.

“I had to borrow to cater for the rental increments, but the moment I got an opportunity to get out of that house, I took it immediately.”

Many Kenyans have found themselves in a situation similar to Ms Wangui’s.

However, Dr Isaac Karanja, a lecturer in the Department of Urban and Regional Planning at the University of Nairobi, few Kenyans are aware that they can seek legal redress in such cases.

Yet most Kenyans live in rental houses. According to the 2009 census, 61 per cent of Kenyans live in rented houses, and the number is much higher in towns.

Dr Jack Mwimali, a senior law lecturer at the Jomo Kenyatta University of Agriculture and Technology (JKUAT), says that while the law does not explicitly ban rent increases, it provides strict measures for landlords to follow. “The law is not silent on the matter, but it is either too lenient or ambiguous, or the enforcing apparatus is grossly ineffective,” adds Dr Jackline Nyaga, a senior law lecturer at Riara University.

She says, the Rent Restriction Act Cap 296, sections 9, 11, 12 and 13, are clear on permitted and restricted rental increases, so it is the enforcing body that has failed in its mandate of protecting the tenants.

RISING LAND RATES

“In law, the relationship between the landlord and the tenant is contractual and thus both parties have a legal obligation to respect the contract,” she says.

This means the parties are free to negotiate and agree on the terms and conditions of the contract/relationship, including the payable rent and the date on which it is payable, among other things.

Once the contract — also known as tenancy covenant — is agreed upon, any change in the agreed terms is a breach of the contract.

“Increasing the rent amounts to that and is thus breaking the law, making the landlord liable to a penalty,” she says.

Section 9 of the Rent Restriction Act says that a landlord shall not ask for any rent in excess of the standard rent as stipulated in the contract: “The landlord of the premises shall not be entitled to recover any rent in respect thereof in excess of the standard rent, notwithstanding any tenancy agreement or lease executed between the landlord and the tenant or any other agreement, in writing or otherwise, as to the amount of rent payable made between the landlord and the tenant prior to, or after, the assessment of the standard rent.”

Meanwhile, Section 10 of the Act prescribes a Sh4,000 fine, or a six-month jail term, or both, for landlords who breach Section 9 of the Act.

But few, if any, tenants make use of these provisions, says Dr Nyaga.

According to Dr Mwimali, the important thing to note is that after the agreement, the landlord cannot increase rent without renegotiating the lease and should give the tenant a notice of his/her intention. For controlled tenants (those paying below Sh2,500 per month) the landlord has to seek the approval of the Rent Restriction Tribunal.

However, Dr Mwimali notes that there are two instances in which the landlord can increase rent as stipulated in Section 11 of the Act: “When the land rates payable have increased since the premises were let to the tenant, by the amount of that increase or the premises were let to the tenant, by the amount of the rates.”

But even in such cases, the landlord must inform the tenant in writing of his or her intention to do so, and also present a copy to the tribunal. This means, that the landlord can only increase the rent by the amount of the rates increased and this is generally a small amount that cannot have substantial effect on the rent.

Ms Nyaga’s advice to tenants? “Negotiate everything upfront since leases are, first and foremost, contracts. Familiarise yourself with Article 66 of the New Land Act (a tenant is obligated to pay the rent reserved by the lease at the times and in the manner specified in the lease).”