Hi Wakili. Recently, I moved out of a rented house after being there for two years. I thought the occupation was smooth, because I always paid my rent on time and adhered to set rules. Before moving out, I made sure all the bills were paid and the house was in good condition, even the care taker confirmed this. But imagine wakili, the landlord has refused to pay back the deposit. Is this right? I was counting on the cash to help me settle in my new home.
Every industry has a culture that is generally defined and described by acceptable practices and standards including attitudes sported and exuded by its operatives. This is often formed, nurtured, transferred and entrenched in the psyche and modus-operandi of the actors over a considerable period of time. Such applies to real estate as well. However, while the practitioners may not find fault in and with some of the practices, it does not necessarily make it non-injurious.
Let us be reminded that Article 27 (1) provides that every person is equal before the law. This includes the right to equal protection and benefit of and from it. Sub Article 2 confirms that such equality before law embraces full and equal enjoyment of all rights and fundamental freedoms.
The law prohibits practices that contradict the fundamental rights and freedoms of people, but it is not enough to control people’s attitude around and within their business and relationships. To achieve relational serenity and reasonableness by the use of law and policies alone is difficult, notwithstanding the importance of decorum in any given business. This is the basis upon which the National Action plan on Business and Human rights of 2019 is enacted, which domesticates United Nation’s Guiding Principles on Business and Human Rights.
At this point, it is necessary to note a dichotomy of what creates wrong and right, by acknowledging that laws exist while users must decide whether to adhere.
Tenants are consumers or clients, while landlords are service vendors whose business relationship is regulated by consumer laws, founded on Article 46 of the Constitution, which among other rights provides for the rights of a consumer to goods and services of reasonable quality. What may then constitute reasonable quality in a rental premises scenario is a relativity question of the parties involved. The Rent Restrictions Act is the specific law that addresses issues related to tenancy in residential premises, for as long as the dwelling house referred, furnished or unfurnished, has a standard rent exceeding Sh2,500 per month.
Section 9 of the said Rent Restrictions Act, infers the existence of a tenancy agreement that spells out rights and duties of both landlord and tenant. It is on such an assumption that a relationship is established. The section states as follows: “Subject to this Act, the landlord of 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.
There is no law nor policy provision that directly speaks to the issue of deposit. It is assumed that tenancy agreements have explicit terms that canvass the issue. Practice has shown that landlords often demand one month’s rent in advance together with similar deposit, alongside predetermined amount as deposit to commence access to water in the premise. It is also expected that the tenancy agreement has clear terms regarding the origination, subsistence and termination of a tenancy relationship. Such terms are captured to reflect and suit the private or unique circumstances and conditions prevailing between the potential landlord and tenant, which fundamentally guide their interaction going into the service provider and consumer union.
Honourable Judith Omollo, in one of her determinations asserted how wrong it is for any landlord to withhold any a tenant’s deposit upon the death of their tenancy relationship. There is no justification as not to refund such deposit, not unless the reasons for doing so are well articulated in the tenancy agreement. Most landlords tend to make claim of repairs and repainting upon departure of a tenant, but, this according to Honourable Omollo, demands that the original state of the premise must be demonstrated before a competent tribunal or court.
Since landlord tenant relationships have continued to lack in human ambience, it is important as a tenant for one to do some of the following when getting into a new residential premise: first create an inspection list to help one ascertain the original state of the house before occupation; secondly, take photos showing the condition of the house before one settle in and note any marks or spots that could be labelled as areas of damage in future. This should be done in the presence of the landlord and form a common understanding about it; thirdly, make no repairs even if the house gets damaged while in it, whether by you or not, since it isn’t the tenant’s responsibility to repair but the landlord’s. Always inform the landlord in writing about needed repairs.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
