THE LAW GOVERNING LANDLORD–TENANT RELATIONSHIPS IN KENYA

 

 

  

 

 

 

THE LAW GOVERNING LANDLORD–TENANT RELATIONSHIPS IN KENYA

Security Deposits, Termination of Tenancy, Maintenance, Repairs, Property Damage and Remedies for Residential and Commercial Tenancies

A Comprehensive Legal Article

Prepared for legal publication and professional use

Applicable Kenyan law | Position as at 11 October 2026

 

Abstract

The relationship between landlords and tenants in Kenya is governed by a combination of statutory provisions, contractual terms and common-law principles. Disputes frequently arise when a tenant issues a notice to vacate, seeks a refund of a security deposit, complains about defective premises or is held liable for damage discovered upon surrendering possession.

This article examines the applicable legal framework for residential and commercial tenancies, the distinction between the obligations of landlords and tenants, the legal treatment of security deposits, the consequences of damage to leased premises, and the remedies available to either party where a dispute arises. Particular attention is given to the Land Act, 2012, the Rent Restriction Act (Cap. 296), the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301), the Small Claims Court Act, 2016, and relevant judicial decisions.

The central proposition is that the determination of a tenancy dispute requires an examination of the nature of the premises, the terms of the lease, the cause of the alleged damage, the evidence of the parties and the jurisdiction of the court or tribunal empowered to determine the dispute.

 

1. Introduction

A tenancy creates reciprocal rights and obligations between a landlord, who grants the right to occupy premises, and a tenant, who acquires that right subject to the agreed terms and applicable law.

The landlord is ordinarily required to provide the premises in the condition required by law and the tenancy agreement, respect the tenant's lawful occupation, and undertake repairs falling within the landlord's responsibility. The tenant, in turn, must pay rent as agreed, observe the conditions of occupation, take reasonable care of the premises and surrender possession in accordance with the applicable termination requirements.

These obligations become particularly significant when a tenancy comes to an end. A landlord may discover damage, unpaid utilities or rent arrears and seek to deduct the corresponding sums from the security deposit. A tenant may contend that the deductions are unjustified, that the defects arose from structural failure, or that the landlord is attempting to transfer the cost of routine maintenance to the outgoing tenant.

Neither party is entitled to determine liability merely by assertion. The legal position must be established by reference to the governing statute, the tenancy agreement and admissible evidence.

The starting point is therefore to identify the particular tenancy regime under which the premises are occupied.

2. The Applicable Legal Framework

2.1 The Constitution of Kenya, 2010

The Constitution provides the overarching legal framework within which tenancy rights and obligations operate.

Article 40 protects the right to acquire and own property, subject to the Constitution and applicable law. Article 47 guarantees lawful, reasonable and procedurally fair administrative action by public bodies and persons exercising administrative authority where the provision applies. Article 159(2)(c) encourages the use of alternative forms of dispute resolution, including reconciliation, mediation and arbitration, subject to constitutional principles.

These provisions do not, in themselves, prescribe a universal period for refunding a residential security deposit. Their relevance must be assessed in the context of the particular dispute.

2.2 The Land Act, 2012

The Land Act is a principal statute governing leases and contains implied covenants that may apply even where a tenancy agreement does not expressly address every issue. Section 65 is particularly important.

Under section 65(1), implied covenants by the lessor include:

·       Quiet enjoyment of the leased premises, provided the tenant complies with the relevant obligations;

·       Restrictions against the landlord using adjoining or neighbouring property in a manner that renders the leased premises unfit, or materially less fit, for their permitted purpose;

·       Under section 65(1)(c), where only part of a building is leased, keeping the roof, external and main walls, main drains, common parts and common installations in proper repair;

·       Under section 65(1)(d), ensuring that a leased dwelling house, flat or room is fit for human habitation at the commencement of the lease and remains fit for human habitation during the tenancy; and

·       Under section 65(1)(e), the suspension of rent, or an appropriate proportion of rent, in specified circumstances where the premises are damaged by events not attributable to the tenant's negligence and consequently become wholly or partly unfit for occupation or use. Where the premises are not restored within six months, the provision gives the tenant an option to terminate upon one month's notice.

The precise application of these provisions depends on the facts, the nature of the lease and any relevant express contractual terms.

Section 65(2) also contains implied provisions concerning the landlord's access to inspect or repair premises, subject to the statutory conditions, including the prescribed seven days' notice for the specified inspection and repair purposes. The landlord must not unreasonably interfere with the tenant's occupation and use of the premises.

Legal implication: A landlord cannot automatically transfer responsibility for structural defects or all essential repairs to a tenant simply because the tenant occupies the property. Equally, the statutory obligations of the landlord do not absolve a tenant from liability for damage caused by the tenant's own negligence, misuse or breach of contract.

Source: Land Act, 2012, section 65.

2.3 The Rent Restriction Act, Cap. 296

The Rent Restriction Act applies only to premises falling within its statutory scope. It should not be treated as a general statute governing every apartment, bedsitter, family house or other residential property in Kenya.

Where applicable, the Act regulates matters including standard rent and provides for the Rent Restriction Tribunal to exercise the jurisdiction conferred upon it by statute.

An advocate should therefore establish whether the premises fall within the Act's definition and applicable statutory rent limits before invoking it as the principal legal basis of a residential tenancy claim.

Where the premises fall outside the Act's scope, the tenancy agreement, the Land Act where applicable, and the general law must be considered instead.

2.4 The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301

The Act provides a distinct statutory regime for qualifying shop, hotel and catering-establishment tenancies.

Section 2 defines a controlled tenancy to include a tenancy of a shop, hotel or catering establishment which has not been reduced into writing, or which has been reduced into writing for a period not exceeding five years, or which contains provision for termination otherwise than for breach of covenant within five years from commencement. The statutory definition contains further qualifications that must be examined in the particular case.

Section 3 provides for matters concerning controlled tenancies, including the prescribed form and implied terms in the circumstances specified by the Act.

Section 4 governs the termination of controlled tenancies and alterations of terms, requiring the statutory notice procedure to be followed where applicable. A party should not assume that an ordinary notice under a private lease is sufficient to terminate a controlled commercial tenancy.

The Act also provides for the Business Premises Rent Tribunal to exercise the jurisdiction conferred upon it over controlled tenancies.

Legal implication: A commercial landlord should establish whether the tenancy is controlled before taking steps to terminate the lease, recover possession or alter its terms. The same inquiry is necessary before deciding whether a deposit dispute should be brought before the Tribunal or another competent court.

2.5 The Tenancy Agreement and General Contract Law

The tenancy agreement remains central to determining the parties' contractual obligations. It should be examined for provisions relating to:

·       The duration and termination of the tenancy;

·       The notice period and method of service;

·       The amount and purpose of the security deposit;

·       The circumstances permitting deductions from the deposit;

·       Responsibility for structural repairs, minor repairs and maintenance;

·       Utilities, service charges and other outgoings;

·       Inspection, handover and reinstatement obligations; and

·       The consequences of damage, breach or premature termination.

The agreement must be interpreted consistently with mandatory statutory provisions. A clause purporting to exclude a statutory obligation cannot automatically be enforced merely because both parties signed it.

Where the agreement is silent, the court may need to consider implied statutory covenants, the ordinary principles of contract law and the nature of the tenancy.

3. Security Deposits: Legal Character, Refund and Deductions

3.1 The Legal Nature of a Security Deposit

A security deposit is ordinarily money paid by a tenant to secure the performance of obligations arising under a tenancy agreement. Depending on the agreement, it may secure unpaid rent, unpaid utility charges, damage to the premises for which the tenant is liable, or other expressly agreed liabilities.

It is conceptually distinct from rent. Rent is consideration for occupation of the premises; a security deposit is held as security against specified liabilities.

Unless a valid contractual or statutory basis provides otherwise, the landlord cannot simply appropriate the deposit as income, impose an arbitrary penalty or retain the whole amount without accounting for the liabilities said to justify retention.

The agreement should therefore specify:

1.     The amount of the deposit and the purpose for which it is held;

2.    Whether the deposit is refundable and the conditions governing refund;

3.    The circumstances in which deductions may be made;

4.    The procedure for inspection and assessment of damage; and

5.    The time and method for accounting for and refunding the balance.

Kenyan law does not establish one universal statutory refund period applicable to every residential and commercial tenancy. The applicable agreement, any relevant statutory provisions and the facts must be examined.

3.2 Is the Deposit Refundable Once the Tenant Gives Notice?

The giving of notice is not necessarily the event that makes the deposit immediately repayable. Ordinarily, the tenancy must be brought to an end in accordance with the applicable requirements, possession must be surrendered, and any properly recoverable liabilities must be established.

A tenant's notice should be assessed in light of the agreed notice period, the nature of the tenancy, and any applicable statutory termination procedure. A tenant who gives insufficient notice may incur a contractual liability, if legally recoverable, but that does not automatically entitle the landlord to forfeit the entire deposit.

The proper sequence is generally to:

·       Confirm that the notice is valid and identify the termination date;

·       Establish any rent or other liabilities accruing up to the proper termination date;

·       Inspect the premises and document their condition;

·       Determine whether any damage is attributable to the tenant;

·       Prepare an itemised statement of justified deductions; and

·       Refund the balance without unreasonable delay, subject to the applicable terms and law.

Where the landlord disputes only part of the deposit, the undisputed balance should ordinarily be paid rather than withheld merely because another item remains contested.

3.3 Judicial Authority: Nyaoro v Oburu [2026] KEHC 9171 (KLR)

In Nyaoro v Oburu, the High Court considered a claim for refund of a KES 95,000 security deposit after the tenant had issued a valid termination notice, vacated the premises and surrendered vacant possession.

The Court distinguished a claim for a security deposit from a claim for rent or a dispute requiring adjudication of occupation, eviction or termination rights. It treated the deposit as money held as security for potential liabilities, including unpaid bills and damage beyond fair wear and tear.

The decision is particularly useful on two points:

·       The termination of the tenancy and surrender of possession may leave a distinct monetary claim for recovery of the deposit; and

·       A pure claim for the refund of a deposit may fall within the Small Claims Court's jurisdiction as a claim involving money held and received, depending on the relief sought and the statutory requirements.

The case does not establish that every deposit claim must be filed in the Small Claims Court. The nature of the dispute and the jurisdictional limits must still be examined.

3.4 Judicial Authority: Eyase v Impulse Holdings Limited [2026] KEHC 1785 (KLR)

In Eyase v Impulse Holdings Limited, Civil Appeal E516 of 2024, decided on 12 February 2026, the High Court considered Whether a claim for a rent security deposit was outside the Small Claims Court's jurisdiction simply because the money originated in a tenancy arrangement.

The Court rejected the automatic treatment of every tenancy-related claim as an excluded tenancy dispute. It reasoned that a claim for a deposit, where the relief sought is the recovery of money held and received and does not require the determination of excluded matters such as possession, eviction or rent arrears, may fall within the Small Claims Court's jurisdiction.

The decision is significant because it requires an advocate to examine the substance of the claim rather than merely its origin. A claim seeking KES 25,000 in deposit money is not necessarily equivalent to a claim seeking eviction, rent arrears or enforcement of a controlled-tenancy notice.

3.5 Judicial Authority: Office Time Limited (Burotime) v Keviba Company Limited [2026] KEHC 11570 (KLR)

In this decision, delivered on 23 July 2026, the High Court considered a claim for refund of a rent security deposit and the jurisdiction of the Small Claims Court. The decision supports the distinction between a deposit-refund claim and a claim for rent or other relief outside the Small Claims Court's statutory mandate.

Read alongside Nyaoro and Eyase, the decision reinforces the importance of accurately characterising the cause of action and the relief sought.

3.6 May a Landlord Deduct Rent Arrears from the Deposit?

The answer depends on the tenancy agreement and applicable law. Where the deposit is expressly available to cover unpaid rent, the landlord may have a contractual basis to apply it to established arrears. Where the agreement does not authorise the proposed set-off, the landlord should not assume that the deposit can automatically be converted into rent.

The parties should also distinguish between rent that remains legally due and rent that is disputed because of a valid termination, a statutory rent-suspension provision or another legally recognised circumstance.

The advocate should therefore avoid advising either party that a deposit must invariably be applied to the last month's rent or, conversely, that it can never be used to settle rent arrears.

4. The Landlord's Duty to Maintain and Repair the Premises

4.1 Residential Premises

For a dwelling house, apartment, bedsitter or room, section 65(1)(d) of the Land Act is a key provision. It implies a covenant that the premises will be fit for human habitation at the commencement of the lease and will be kept fit for human habitation during the tenancy.

Where only part of a building is let, section 65(1)(c) also addresses the repair of the roof, external and main walls, main drains, common parts and common installations.

These provisions should be read together with the tenancy agreement, applicable building and public-health requirements, and the particular facts of the alleged defect.

The landlord will ordinarily bear responsibility, where the applicable law or agreement so provides, for matters such as:

·       Serious structural defects;

·       A deteriorated roof causing water ingress;

·       Defects in the main drainage system;

·       Defective common water, electrical or other installations for which the landlord is responsible;

·       Conditions rendering the premises unsafe or unfit for habitation; and

·       Deterioration attributable to age or ordinary failure of building components rather than the tenant's conduct.

The existence of a defect does not automatically establish liability. Its cause, seriousness, contractual allocation and the statutory obligations applicable to the property must be established.

4.2 Commercial Premises

The repair obligations in a commercial tenancy must be assessed by reference to the lease, any applicable implied terms, and the Land Act where relevant.

A commercial lease may expressly allocate responsibility for internal repairs, external repairs, structural works, common areas, service installations and reinstatement at the end of the tenancy. Such provisions must be examined carefully.

For example, a lease may require the tenant to maintain the interior of a shop, while reserving structural repairs and common installations to the landlord. The exact wording matters.

Where the premises form part of a building and the tenancy falls within section 65 of the Land Act, the statutory implied covenants concerning the specified common and structural elements may also be relevant. The advocate should assess whether any express term is consistent with mandatory law before advising on liability.

For a controlled commercial tenancy, the advocate must additionally consider the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, including its provisions on notices, implied terms and the jurisdiction of the Business Premises Rent Tribunal.

4.3 Access to Inspect and Carry Out Repairs

Section 65(2)(a) of the Land Act provides for the landlord or the landlord's agent to enter the premises at a reasonable time and upon giving seven days' notice for the specified purposes of inspection, repairs and making good defects that the landlord is obliged to remedy.

This provision should be applied according to its terms and the circumstances. It does not confer an unrestricted licence to enter whenever the landlord wishes or to interfere unreasonably with the tenant's occupation.

Where an urgent threat to life or property arises, the parties should act reasonably and consider the applicable contractual, statutory and safety requirements.

4.4 What Happens When Damage Makes the Premises Unfit for Occupation?

Section 65(1)(e) of the Land Act provides a specific framework for certain events, including fire, flood, explosion or other accidents not attributable to the tenant's negligence, as well as specified natural disasters.

Where such damage makes the premises wholly or partly unfit for occupation or use, the rent or an appropriate proportion may be suspended in accordance with the provision. If the premises have not been rendered fit within six months, the tenant has the option of termination upon one month's notice.

This is not an automatic rule that every repair issue entitles a tenant to stop paying rent. The cause of the damage, the extent of unfitness and the statutory conditions must be established before the provision is invoked.

A tenant should therefore notify the landlord promptly, document the defect and obtain legal advice before withholding rent or unilaterally terminating a lease.

5. The Tenant's Obligations Regarding Damage to the Premises

5.1 The Duty to Take Reasonable Care of the Premises

A tenant is required to comply with the tenancy agreement and any applicable statutory obligations. This ordinarily includes paying rent as agreed, using the premises for the permitted purpose, taking reasonable care of the property and avoiding conduct that causes avoidable damage.

Where the tenant, a household member, employee or visitor causes damage for which the tenant is legally responsible, the landlord may have a claim for the reasonable cost of repairing that damage.

However, the tenant is not an insurer of the landlord's property. The mere discovery of damage at the end of the tenancy does not, without more, establish that the tenant caused it or is liable to pay for it.

The distinction is between damage attributable to the tenant and deterioration arising from ordinary use, age, structural failure or another cause for which the tenant is not responsible.

5.2 Ordinary Wear and Tear versus Compensable Damage

Ordinary wear and tear is the deterioration that reasonably occurs through normal use and the passage of time. It should be distinguished from damage arising from negligence, misuse, deliberate conduct or breach of a tenancy obligation.

The following table illustrates the distinction.

 

The table is illustrative, not conclusive. For example, extensive staining, unauthorised alterations or unusually severe deterioration may justify further investigation even where the item initially appears to concern painting or decoration.

5.3 Judicial Authority: Muthengi v Choice Leather Works Limited & another [2023] KERRT 1178 (KLR)

In Muthengi v Choice Leather Works Limited & another, Tribunal Case No. 1269 of 2020, the Rent Restriction Tribunal considered a dispute over the refund of a security deposit and the cost of repairs undertaken after the tenant vacated.

The dispute concerned, among other things, repainting, repair expenses, utility arrears and the extent to which the tenant could be charged for deterioration of the premises. The tenant relied on the tenancy agreement's exclusion of fair wear and tear from the tenant's obligations.

The decision is useful because it demonstrates the importance of evidence concerning the initial condition of the premises, the inspection undertaken, the nature of the repairs, and whether the expenditure claimed was attributable to the tenant rather than ordinary deterioration.

It also illustrates why the landlord should not rely on a bare assertion that repairs were necessary. The nature of each repair, its cause and its reasonable cost must be examined.

5.4 Must the Tenant Repair Damage before Vacating?

That depends on the lease, the applicable law, the nature of the damage and the circumstances.

Where the tenant has expressly undertaken to repair particular damage or reinstate the premises to an agreed condition, that obligation may be enforceable, subject to the law.

Where the damage is attributable to the landlord's failure to undertake repairs for which the landlord is responsible, the tenant should not automatically be required to bear the cost.

Where the tenant has caused damage, the parties may agree that the tenant will carry out the repairs or that the landlord will undertake them and recover the reasonable, properly established cost. Any deduction from the security deposit should have a lawful basis.

A landlord should also avoid charging the tenant for unrelated improvements, betterment or routine maintenance that would ordinarily have been required regardless of the tenant's departure.

6. Evidence and the Burden of Proof in Deposit and Damage Disputes

The burden of proof is central to determining whether the landlord may lawfully retain all or part of the deposit.

Sections 107, 108 and 109 of the Evidence Act (Cap. 80) are relevant to the allocation of the burden of proof.

In general, the party asserting a fact necessary to establish a legal right or liability must prove that fact, subject to the applicable evidential rules and any particular burden imposed by law.

A tenant claiming a refund should ordinarily establish the payment of the deposit, the relevant tenancy arrangements, the termination and surrender of possession, and the amount claimed to be due.

A landlord relying on deductions should identify the contractual or legal basis for them and produce evidence supporting the alleged liability and the amount claimed. The precise evidential burden depends on the pleadings and issues before the court.

Useful evidence includes:

·       The executed tenancy agreement and any addenda;

·       Receipts, bank statements, mobile-money records or other proof of the deposit;

·       The notice to vacate and proof of service;

·       Rent and utility payment records;

·       The move-in inspection report and inventory;

·       Photographs or videos taken at the commencement and end of the tenancy;

·       Written complaints about defects and requests for repairs;

·       Correspondence between the parties or their agents;

·       A joint handover report; and

·       Repair quotations, invoices, receipts and, where necessary, expert or technical reports.

The absence of a move-in inspection report does not automatically defeat a landlord's claim, but it may make it more difficult to establish the original condition of the premises and distinguish pre-existing defects from damage allegedly caused by the tenant.

Similarly, a landlord's invoice is relevant evidence of expenditure, but does not necessarily prove that the tenant caused the damage or is legally liable for the entire amount claimed.

7. Termination of Tenancy: Notice, Handover and Surrender of Possession

7.1 Residential Tenancy

For an ordinary residential tenancy, the first step is to examine the agreement to establish the duration, notice period and termination procedure.

The advocate should determine whether the tenancy is fixed-term or periodic, whether a break clause applies, whether the notice is sufficient and whether any statutory regime imposes additional requirements.

The tenant should not assume that issuing a notice automatically terminates a fixed-term lease if the agreement does not permit early termination. Conversely, the landlord should not assume that the tenant must remain indefinitely merely because the agreement is silent about every possible circumstance.

Upon termination, the parties should agree on an inspection and handover date, record the condition of the premises, settle properly established outstanding liabilities and account for the deposit.

7.2 Commercial Tenancy

For a commercial tenancy, particular care must be taken to determine whether the tenancy is controlled under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

Where the Act applies, the statutory notice procedure under section 4 is material. The validity, content, timing and service of the notice must be considered against the requirements of the Act.

A landlord should not resort to self-help measures, such as unlawfully locking out the tenant or seizing property, merely because the tenant is alleged to be in breach. The proper statutory and legal procedure must be followed.

The lease should also be reviewed for provisions governing reinstatement, removal of trade fixtures, alterations, signage, utility disconnection, return of keys and the condition in which the premises must be handed back.

7.3 Does the Landlord Have to Refund the Deposit on the Day the Notice Is Issued?

Ordinarily, no. The notice is a step in the termination process, and the deposit may remain security for obligations that are yet to be determined.

The landlord should not, however, use the fact that the tenant has given notice as an excuse for indefinite retention. Once the tenancy has properly ended, possession has been surrendered and the relevant liabilities have been reasonably established, the landlord should account for and refund the balance in accordance with the contract and applicable law.

Where there is a genuine dispute about a particular deduction, the parties should document the disputed item rather than treating the entire deposit as automatically forfeited.

8. The Proper Forum for Landlord–Tenant Disputes in Kenya

An advocate should identify the correct forum before instituting proceedings. The nature of the premises, the cause of action and the relief sought are all material.

A. Rent Restriction Tribunal

Relevant where the residential premises and dispute fall within the Rent Restriction Act. The Tribunal's jurisdiction should not be assumed to extend to every residential tenancy in Kenya.

B. Business Premises Rent Tribunal

Relevant to disputes within the statutory jurisdiction of the Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, particularly controlled commercial tenancies.

C. Small Claims Court

May be appropriate for a qualifying monetary claim, including a claim for a deposit treated as money held and received, where the claim falls within the court's statutory jurisdiction and monetary limit. The decisions in Nyaoro v Oburu and Eyase v Impulse Holdings Limited are relevant to this question.

D. Magistrates' Court or Other Competent Court

May be appropriate for claims falling within its jurisdiction that are not assigned exclusively to a tribunal or another forum. The relief sought and the statutory allocation of jurisdiction must be considered before filing.

The jurisdictional issue should not be determined merely by the label placed on a pleading. For instance, a pure claim for recovery of a deposit may differ materially from a claim seeking eviction, possession, a determination of a controlled-tenancy notice or recovery of rent arrears.

The advocate should also consider whether the proposed forum can grant all the remedies sought and whether the claim falls within the applicable monetary limit.

9. Remedies Available to a Tenant Whose Deposit Is Unlawfully Withheld

Where the tenancy has ended and the landlord has failed to refund a deposit without a valid justification, the tenant may consider the following steps.

First, issue a formal demand. The demand should identify the premises, the tenancy agreement, the deposit paid, the termination date, the date of surrender of possession and the sum claimed.

Secondly, request an itemised statement. If the landlord alleges damage, rent arrears or unpaid bills, the tenant should request a breakdown of each deduction and supporting evidence.

Thirdly, attempt an amicable resolution. The parties may agree on a reasonable deduction for established damage and refund the balance without litigation.

Fourthly, institute proceedings in the proper forum. Where settlement fails, the tenant may pursue a monetary claim or other appropriate relief in a court or tribunal with jurisdiction.

The claim may seek the principal sum, costs and interest where legally justified. The availability and extent of each remedy depend on the pleadings, evidence, applicable law and the forum's powers.

A tenant should not assume that the landlord's failure to refund the deposit automatically entitles the tenant to punitive damages or any particular interest rate. Such relief must have a proper legal foundation.

10. Remedies Available to a Landlord Where the Tenant Causes Damage

A landlord who establishes that a tenant caused compensable damage may pursue the remedies available under the tenancy agreement and applicable law. These may include:

1.     Requiring the tenant to remedy the damage where the agreement and law permit;

2.    Recovering the reasonable cost of repair or restoration;

3.    Making a justified deduction from the security deposit;

4.    Pursuing a monetary claim for the proven balance where the loss exceeds the deposit; and

5.    Pursuing any other appropriate contractual remedy, subject to the law and the relevant forum's jurisdiction.

The landlord should not automatically charge for replacing every old fixture with a new one, repainting the entire building or undertaking renovations that exceed the damage attributable to the tenant.

The principle is to compensate the landlord for the loss legally attributable to the tenant, not to place the landlord in a better position than would reasonably have existed had the damage not occurred.

Where a landlord claims that the cost of repairs exceeds the deposit, the landlord should preserve evidence of the condition of the premises, the cause of the damage, the work required and the reasonable cost of that work.

11. Practical Application: Residential and Commercial Examples

Example 1: Residential Apartment

A tenant pays KES 20,000 as a security deposit and gives valid notice to vacate. Upon inspection, the landlord identifies minor wall scuffs, a leaking roof and a broken bedroom door.

The proper legal analysis is as follows:

·       The minor wall scuffs may constitute ordinary wear and tear, depending on their extent and the condition in which the apartment was let.

·       The leaking roof may be the landlord's responsibility if caused by structural deterioration or another defect for which the landlord is liable.

·       The broken bedroom door may justify a deduction if the landlord establishes that the tenant caused the damage and that the proposed repair cost is reasonable.

If the evidence establishes that only KES 3,000 is properly deductible, the landlord should account for that amount and refund the remaining KES 17,000, subject to any other valid liabilities.

Example 2: Commercial Shop

A trader occupies a shop under a written lease. The tenant gives notice to leave and seeks the refund of a KES 100,000 security deposit. The landlord alleges that the tenant removed fittings, damaged the internal partitions and left unpaid utility bills.

The advocate should establish:

·       Whether the tenancy is controlled under Cap. 301;

·       Whether the termination notice complied with the applicable contractual and statutory requirements;

·       Whether the lease required the tenant to maintain or reinstate the internal partitions and fittings;

·       Whether the fittings were the landlord's property or the tenant's trade fixtures;

·       Whether the utility bills are properly attributable to the tenant;

·       Whether the claimed repair costs are reasonable and supported by evidence; and

·       Which forum has jurisdiction over the particular relief sought.

The landlord may have a valid claim for proven damage and unpaid charges, but should not retain the whole deposit merely because the premises require some work before reletting.

12. Recommended Practice for Advocates

For practitioners advising landlords, tenants, property managers and commercial occupiers, the following safeguards are advisable.

At the Commencement of the Tenancy

·       Prepare a comprehensive written tenancy agreement.

·       Record the amount and purpose of the security deposit.

·       Include clear clauses on repairs, maintenance, notice and termination.

·       Conduct a joint inspection and prepare an inventory.

·       Take dated photographs of the premises and fixtures.

During the Tenancy

·       Require defects to be reported in writing.

·       Keep records of repairs, maintenance and communications.

·       Allocate repair obligations clearly and consistently with applicable law.

·       Avoid arbitrary charges or unilateral interference with the tenant's occupation.

At Termination

·       Confirm the notice and termination date.

·       Arrange a joint inspection.

·       Record the meter readings, condition of the premises and return of keys.

·       Prepare an itemised account of any deductions.

·       Preserve invoices, quotations, photographs and other supporting evidence.

·       Refund the undisputed balance in accordance with the agreement and law.

When Litigation Is Contemplated

·       Identify the proper cause of action and the remedies sought.

·       Determine the statutory jurisdiction of the proposed forum.

·       Plead the material facts and attach relevant documentary evidence.

·       Distinguish a deposit-refund claim from a claim for rent arrears, possession, eviction or enforcement of a controlled-tenancy notice.

·       Assess whether settlement or mediation is appropriate before instituting proceedings.

13. Conclusion

Kenyan landlord–tenant law seeks to regulate the reciprocal obligations arising from occupation of leased premises. The landlord's obligations concerning habitability, structural repairs and common installations must be distinguished from the tenant's responsibility for damage caused by negligence, misuse or breach of contract.

A security deposit is ordinarily held as security for specified liabilities and is refundable subject to lawful deductions. Its retention must be justified by the tenancy agreement, applicable law and evidence. Neither the issuance of a notice to vacate nor the discovery of a defect automatically entitles the landlord to forfeit the entire deposit.

The Land Act, 2012, particularly section 65, provides an important framework for implied lease covenants and repair obligations. The Rent Restriction Act and the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act apply to their respective statutory categories. The Small Claims Court may be available for qualifying deposit-refund claims, as illustrated by Nyaoro v Oburu [2026] KEHC 9171 (KLR) and Eyase v Impulse Holdings Limited [2026] KEHC 1785 (KLR).

Ultimately, the resolution of a deposit or repair dispute depends upon the applicable tenancy regime, the contractual allocation of responsibilities, the cause and extent of the damage, the quality of the evidence and the jurisdiction of the forum approached. Careful drafting, documented inspections and a transparent handover process remain the most effective means of preventing avoidable disputes.