Ensuring a Lawful and Compliant Eviction Process
A commercial property eviction in Mombasa is a legal procedure that must be handled with precision to avoid severe legal and financial repercussions for the landlord. Unlike residential tenancies, commercial leases, especially for 'protected tenancies', fall under the strict jurisdiction of the Landlord and Tenant Act and often the Business Premises Rent Tribunal. Landlords cannot resort to self-help measures like changing locks, cutting off utilities, or forcefully removing a tenant's property. Such actions are illegal and can result in the tenant suing for damages. Swipe Recoveries Experts Ltd specializes in managing the entire legal eviction process, from issuing the correct termination notice to obtaining and executing a court or tribunal order, ensuring your actions as a landlord are lawful, defensible, and effective.
The Legal Framework: Business Premises Rent Tribunal & The Law
The primary legal instrument governing commercial property eviction in Mombasa for certain types of leases is the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. This Act establishes what is known as a 'protected tenancy' and creates the Business Premises Rent Tribunal (BPRT), a specialized court that handles disputes arising from these tenancies. A tenancy is generally 'protected' if it's for a shop, hotel, or catering establishment, is not for a period exceeding five years, and contains a provision for termination. For these tenancies, a landlord cannot terminate the lease or evict the tenant without first issuing a specific statutory notice and, if contested, getting an order from the BPRT.
The grounds for termination are strictly defined in the Act and include reasons such as failure to pay rent for two months after a demand notice, substantial breach of a covenant in the lease, or if the landlord requires the premises for their own business or for reconstruction. Attempting to bypass the Tribunal for a protected tenancy is a critical error. Our role is to first assess if a tenancy is protected and then navigate the correct legal channel—be it the BPRT or the regular courts—to secure a lawful eviction.
The Correct Step-by-Step Procedure for Eviction
To execute a lawful commercial property eviction in Mombasa, a landlord must follow a precise, non-negotiable procedure. Any deviation can nullify the process.
1. Issuance of a Valid Termination Notice: The process must begin with a formal 'Termination Notice' served to the tenant. This notice must be in the prescribed legal format, state the grounds for termination clearly (e.g., non-payment of rent), and provide the legally required notice period, which is typically at least two months. The notice must also inform the tenant of their right to object by notifying the landlord within 30 days that they do not agree to vacate.
2. Filing a Reference at the Tribunal or Court: If the tenant objects to the notice or simply fails to vacate after the notice period expires, the landlord must file a 'Reference' at the Business Premises Rent Tribunal or a 'Plaint' at the Magistrate's Court or High Court (depending on the nature of the tenancy and rent amount). This action formally initiates legal proceedings to obtain an eviction order.
3. Obtaining and Executing the Eviction Order: After hearing the case, if the tribunal or court rules in the landlord's favor, it will issue a formal 'Order for Eviction'. This order is then given to a licensed court bailiff or auctioneer for execution. The execution is a formal process, often conducted with police presence to prevent breaches of the peace, ensuring the tenant vacates and possession is returned to the landlord.
Debt Recovery & Auctioneering Coverage in Mombasa, Kenya
Swipe Recoveries Experts Ltd provides commercial recovery, skip tracing, and auctioneering services across Mombasa, Kenya and all 47 counties in Kenya.
Anticipated Costs for a Commercial Eviction in Mombasa (KES)
The financial investment for a commercial property eviction in Mombasa can be significant, and landlords should budget accordingly. The costs primarily fall into three categories. First, legal fees are for the advocate who will draft the legal notices, file the case with the BPRT or court, and represent you in the proceedings. Depending on the complexity and if the case is defended, these fees can range from KES 75,000 to KES 250,000 or more.
Second, there are court and tribunal fees for filing the case and other applications, which are gazetted amounts and are relatively minor, typically a few thousand shillings. The most variable cost is the third category: execution fees. These are the fees charged by the licensed auctioneer or court bailiff to execute the eviction order. These fees are regulated by the Auctioneers Rules and depend on the work involved, but can also include costs for security (police escort), labour to remove goods, and transportation/storage. These execution costs can range from KES 50,000 to over KES 150,000.
