Under a leasehold arrangement enforcement can be looked at the standpoint of tenant or landlord. From the landlords point the enforcement is through
- By way of distress for rent;
- Action for recovery for rent arrears;
- Forfeiture of leasehold or grant
- Action for injunction of damages.
Distress is carried pursuant to the provisions of Cap 293 Distress for Rent Act and the right avails to the landlord and empowers him to go to the premises leased out for purposes of removing therefrom all the times in the possession of the tenant to compel payment of rent. There are goods not capable of seizure and those capable of seizure. Properties that cannot be taken include tools of trade, perishable goods, goods belonging to third parties, items in actual goods, clothes and beddings and pets. Other than those other types of property may be seized and if not sufficient to meet the required sums there is a 2nd level. Sheep, beasts of plough or donkeys instruments used in trade or profession.
In levying distress a certified bailiff must be engaged and no more than 6 years of rent can be distrained. Cap 22 bars claims if there are more than 6 years old.
Action for recovery of rent arrears is another way to distress for rent, you file a suit in court and the requirements for limitation of actions act applies no more than rent of 6 years is recoverable.
The 1st and 2nd options are not exercisable simultaneously and it would be illegitimate to proceed for distress when you have already filed in court for rent arrears. Once you file a suit you wait for it to be dealt with.
Forfeiture – the lease on the ground is effectively terminated under Section 56, 57 and 58 of RLA. Forfeiture is draconian and should only be resulted to where one is faced with a breach of a fundamental requirement on the lease. Where conditions of Se
Actions of damages mean that one does not want to terminate the relationship and there is an ongoing breach that one intends to stop and in the process has suffered injury that one needs to be compensated for then one can file for an action for damages.
Enforcement from the tenant – the tenant can institute a suit for damages where there is an invasion on the right to quiet enjoyment, if it is interference, disturbance or interruption by the landlord the tenant can seek an injunction. If there is loss suffered due to the landlord derogation from grant and business has suffered, a tenant can claim special or general damages. In case of such breaches, the tenant has options to seek redress. In extreme cases the tenant would have the option to walk away from the relationship altogether. Where fundamental breaches are in issue and all efforts have been made to bring to the attention of the landlord it would be in order for the tenant to repudiate.