Leaseholds

Can one lose their leasehold land even when they live on it? Then what happens to the buildings and other fixtures that they’ve erected thereon? I thought the answers to these basic questions are obvious. But not quite. I have found myself constrained to address these questions in radio engagements and routine social banter. While those who hold their land under freehold terms do so in perpetuity, those who hold leasehold land do so for a period. This period is usually stipulated in the lease agreement binding the landlord/lessor and the tenant/lessee. This agreement elaborates pertinent conditions, including what should happen to buildings that one may have constructed. Leases are renewable.

But we have a significant information gap on this matter. Unfortunately, there are many in our urban areas holding leases from either the national or county governments whose leases have expired, or soon will, for various reasons. Indeed, the 2017 task force on the extension and renewal of leases reported having come across expired leases in various counties, and made recommendations on how the government could provide appropriate remedy. What are some of the common reasons why leases expire inadvertently?

Reasons for non-renewal

In some cases, the leaseholders are unaware that they are expected to renew. Such holders, largely schooled on the freehold tenure doctrine prevalent in rural Kenya, believe that once purchased, properties will remain theirs for a lifetime. There are also those who may get unwell or travel, and totally forget about their obligations to apply for renewal. I have also witnessed elderly proprietors who live alone, and who suffer failing memory whose priorities are the mundane matters of food, security and medical support. Not tenure terms. Then there are those deceased, whose properties are left to heirs who are completely unaware of the obligation to renew.

Consequences

Unfortunately, the consequences of expiry are dire, with adverse implications to businesses and livelihoods, the surrounding reasons notwithstanding. The worst case scenario arises where unscrupulous persons, acting either alone or at the behest of insiders in the know, move to have new leases processed in their favour, then move to forcefully evict previous leaseholders, their families, residential or business tenants. We have previously been treated to such scenarios in parts of Nairobi city. Properties on River Road, Kenyatta Avenue, Loita Street and Parklands quickly come to mind. The impacts have been devastating, and lifelong.

Current renewal process

Reason why County governments, the Lands Ministry and the Land Commission must raise awareness and keep vigilant. Moreover, desk officers driving the lease renewal process should, knowing the vulnerabilities surrounding some lessees, closely observe the mechanism stipulated in the extension and renewal of lease rules of the Land Registration Act, 2012. These oblige the Land Commission to notify the lessee about the impending expiry by registered mail within five years to expiry and, if no response is received within a year, publish the notice in local newspapers. This failing, a visit to the property should be made.

Dated: 27th February, 2025