This involves tenancies or relations between a landlord and a
tenant. A leasehold interest under Kenya laws is one that is held in land under a
leasehold title. The interest in question can be the subject of an
assignment and it is capable of surviving the parties to that
arrangement. The RLA defines a lease as a Grant with or without
consideration by the proprietor of land of the right to exclusive
possession of his land and includes the rights granted, the instrument
granting it, a sub-lease but does not include an agreement for a lease.
This is found in Section 3 of the RLA. The RLA gives an encompassing
wide definition and we shall examine the significance to be attached to
this definition
Section 105 of the ITPA a simple definition
approach defines a lease as the grant of a right of exclusive possession
of a defined piece of land for an uncertain or ascertainable period.
One can contrast between the two definitions e.g. in the first one quite
a lot is included which mentions instruments, sub-lease as part of
lease and the deliberate approach to make it clear what does not amount
to a lease in this case an agreement to have a lease arrangement does
not amount to a lease. Consideration can be necessary or unnecessary
under the RLA but under the ITPA it is a pertinent component of the
definition. Both of them of course revert to exclusive possession and
the ITPA further spells the essential requirements that the exclusive
possession must relate to a defined premises and that the period in
question should be certain or capable of being ascertained so that in
terms of the essential elements of a lease, one can easily come up with
the following i.e. a leasehold arrangement must confer the right of
exclusive possession, that the arrangement must be an intention to
create a lease and nothing else; that the subject matter of such a
leasehold must be some defined premises and not of one that is not
identified and that the period for which that arrangement is to last
must be that there must be a commencement date and the termination of
such an arrangement. It must be easy to ascertain when the arrangement
commences and when it ends.
On the requirement that it must
confer exclusive possession, this translates to the fact that a tenant
must acquire the right of possession to the exclusion of the landlord
and all other persons claiming under him. That includes relatives,
spouses who have no business interfering or sharing possession with the
tenant if a leasehold arrangement is what is in issue. In the case of
London Northwestern Railway Co. V Buckmaster (1874) 10 L.R. the
importance attached to exclusive possession precludes interference from
the landlords gives new meaning to the arrangements.
Exclusive
possession under Kenya laws does not necessarily mean that where one falls into
possession he becomes a tenant. It is quite possible that one may be
placed in exclusive possession without being a tenant as explained in
RUNDA COFFEE ESTATE V. UDDGAR (
In this case the purported lease was
ambiguous and it had very funny clauses. The actual parties to the
arrangement were not clearly spelt out and described tenants as paying
guests so that the court was at pains to point out whether a grant
amounts to a lease or only a licence. The general circumstances
surrounding the entire transaction would come into play. Between a
lease and a licence there is a world of difference the most significant
being that a licence is much more inferior in terms of rights and
interests that it can confer. A licensee would suffer from setbacks
that would not necessarily affect one holding a lease. A licence under Kenya law is
granted by the proprietor to occupy and gain something for some
consideration but for a limited period and cannot be assigned and that
is the principle difference between a lease and a licence in that
whereas a lease confers much more in terms of rights and interests a
licence offers far much less, it cannot be assigned and does not confer
rights and interest. What may be proclaimed as a lease need not be what
it is purported to be if it fails to meet the essential requirements as
it might turn out to be just mere privilege to occupy. There is also
simplicity to terminate a licence and one can revoke it easily.