In Kenya, landlords have the right to perform due diligence on potential tenants to ensure that they are suitable and can meet their rental obligations. This involves requesting tenants for their identification documents and performing background checks on them by inquiring about their credit history, sources of income, employment status and references from former landlords. On the other hand, tenants have the right to privacy which involves them issuing consent before their personal information is accessed or processed by a landlord.
A landlord’s right to perform due diligence on prospective tenants
Article 35 of the Constitution of Kenya, 2010 provides a landlord with the right to access information held by a tenant if it is for purposes of protecting a landlord’s right to rental income. Further, Section 30(1)(b) of the Data Protection Act, 2019 provides a landlord with the legal basis for obtaining personal data relating to a tenant as it is necessary in the performance of a lease or tenancy agreement between the landlord and tenant.
A tenant’s right to privacy
The right to privacy is underpinned under Article 31 of the Constitution of Kenya, 2010. In specificity, Article 31(c) and (d) guarantees protection of a tenant’s personal information.
The Data Protection Act, 2019 which gives effect to Article 31 (above), places strict obligations on any person handling or processing personal data, in this case, a landlord to:
- protect the tenant’s right to privacy,
- respect the right of the data subject (the tenant) and
- ensure that personal data is processed in line with the Act.
Failure by a landlord to comply with the above obligations, exposes him/her to a claim of compensation by a tenant and criminal offenses under the Act in cases of infringement of the tenant’s right to privacy.
What are the guiding principles to be followed by a landlord during vetting of potential tenants?
Section 25 of the Data Protection Act, 2019 places an obligation on the landlord to adhere to the following guiding principles while performing due diligence checks on a tenant:
A landlord should obtain written consent from prospective tenants before conducting any background checks on them. Section 32 of the Data Protection Act, 2019 provides that the consent obtained should be express, unequivocal, free, specific and informed. The best way for a landlord to comply with this requirement is to provide a tenant with a form outlining they type of background checks to be performed, the type of information to be obtained, the purpose and requiring the tenant to consent to the background checks being undertaken.
Landlords should only request and review the information that is relevant to the tenancy/lease agreement. The information obtained should be specific and for purposes of only ensuring that the tenant will be able to meet his/her rental obligation. As such, background checks verifying the tenant’s employment status and sources of income are necessary but information relating to their medical history or family is not.
Legitimate and Valid purposes
A landlord is required under the law to adequately inform the tenant, the reasons for performing background checks. Thereafter, a landlord should only use the information obtained for permitted and lawful purposes.
Security of the Information
Landlords should keep any personal information obtained during the due diligence process secure and confidential. This means storing physical documents in a locked cabinet or using password-protected digital files that are tamper-proof and not susceptible to theft. Further, once the tenant’s personal information is no longer in use, the landlord should securely destroy or dispose it off.
Landlords should use reputable sources of information when conducting due diligence checks to ensure that the tenant’s personal information obtained is accurate and not misleading. For example, if a landlord seeks to verify the employment and income information of a tenant, they should do so by contacting the tenant’s employer directly in writing.
Information not be transferred without consent
A landlord in possession of a tenant’s personal information, cannot transfer it to a third party without the tenant’s consent. However, there are instances of necessity permitted in Section 48 (c) of the Act that allow a landlord to transfer information without consent. For example, it is in the interest of the public for a landlord to share a tenant’s personal information for purposes of COVID 19 contact tracing by the Government.
How can we help?
At Property Boutique, we have a team of specialized professionals who are trained to perform comprehensive due diligence checks on prospective tenants on behalf of landlords without infringing on the tenant’s right to privacy. This ensures that as a landlord you are in compliance with the law and not exposed to claims of compensation by a tenant or criminal offences.
Written by Cynthia Kitolo
Legal Officer & Advocate of the High Court of Kenya