Subletting is one of the most common breaches of a residential tenancy in Kenya, and a large proportion of the people doing it do not know they are.
The mechanism matters. When a tenant sublets, they do not hand their tenancy to somebody else. They create a second tenancy underneath their own, and they become a landlord in relation to the subtenant while remaining a tenant in relation to their own landlord.
The consequence people miss: the original tenant stays fully liable. If the subtenant does not pay, the head tenant still owes the rent. If the subtenant damages the unit, the head tenant's deposit is what gets applied.
Subletting, assignment, and sharing
Three different things, routinely used interchangeably:
Subletting. A new tenancy is created beneath the existing one. The original tenant stays in the chain.
Assignment. The tenancy itself is transferred to somebody else, who steps into the original tenant's position. The original tenant may or may not be released, depending on the terms.
Sharing or lodging. Somebody else lives there without being granted exclusive possession of any part. Often not a subtenancy at all, though many agreements restrict occupancy by anybody not named regardless.
Most agreements treat all three differently, and most people treat them as one thing.
What the agreement usually says
Residential tenancies in Kenya commonly prohibit subletting outright, or permit it only with the landlord's prior written consent. Some clauses add that consent will not be unreasonably withheld, which is a meaningfully different clause from a flat prohibition.
Read the actual wording. There is a large difference between:
- "The tenant shall not sublet." A prohibition.
- "The tenant shall not sublet without the landlord's prior written consent." A permission mechanism.
- "...such consent not to be unreasonably withheld." A permission mechanism with a standard attached to it.
Why landlords care
It is not arbitrary. Subletting changes several things the landlord underwrote:
- Who is in occupation, and whether they were referenced or vetted at all.
- Occupancy density, which affects wear, water consumption and shared services.
- Who to deal with on repairs, notices and access.
- The insurance position, in some cases.
- Recovery, because a landlord dealing with an occupier they have no contract with is in a materially worse position.
Doing it properly
Where the agreement allows it with consent:
- Ask in writing, naming who, for how long, and which part of the property.
- Get the consent in writing before anybody moves in. A verbal "that's fine" from a caretaker is not consent from a landlord.
- Put the subtenancy in writing with the subtenant, on terms no wider than your own head tenancy. You cannot grant more than you have.
- Do your own schedule of condition with the subtenant, because you will be answering for the condition at the end.
- Hold their deposit properly, as their money, for the same reasons your landlord should be holding yours.
- Keep paying your own rent regardless of whether theirs arrives.
What goes wrong
Airbnb-style short letting. Short-stay letting of a residential unit is subletting, is frequently prohibited outright, and often breaches the block's rules as well as the tenancy. The fact that it is arranged through an app does not change what it is.
"Just a friend staying." Where money changes hands for exclusive occupation of a room, it looks like a subtenancy whatever it is called.
Consent given verbally. The landlord changes, the agent changes, and nobody can produce the permission.
The head tenant leaves. They stop paying, the subtenant is in occupation with no relationship to the landlord, and the position of everybody in the chain is worse than it needed to be.
Where subletting is discovered and not permitted, what follows depends on the agreement and the applicable law, including whether the tenancy is a controlled tenancy. That is a point for advice rather than assumption on either side.