1. What are the key things that employers have to consider in relation to social distancing in the workplace, e.g. open plan or spacing of desks, use of shared equipment, limited access to communal facilities, canteen / restaurant, etc.?
The Public Health (COVID-19 Restrictions of Movement of Persons and Related Measures) Rules define a workplace as a public place. The rules provide that:
- every employer should have a contact-free thermometer to measure employees’ temperature before admission to the workplace;
- the employer should also ensure employees maintain a physical distance of 1.5 m from the next employee and use a proper face mask that must cover the person’s mouth and nose;
- shared equipment is sanitised and employees use it on a rotational basis;
- communal facilities can be used as long as they are regularly sanitised and employees maintain a 1.5 m distance during usage;
- canteens and restaurants should ensure social distancing among employees; and
- dining tables must be placed 1.5 m apart, and self-service is not allowed.
Restaurants should have contact-free thermometers to check customers’ temperature, and people handling food in the canteen and restaurant should wear masks and have a COVID-19 clearance certificate.
On 28 September 2020, the president issued a directive extending the working hours for restaurants to 10pm.
2. What key hygiene and/or infection prevention measures will employers have to take to ensure a safe workplace e.g. provision of adequate handwashing facilities, regular deep cleaning of offices, etc.?
The Public Health (COVID-19 Restrictions of Movement of Persons and Related Measures) Rules provide that:
- employers should ensure that, at their business location or entrance to their premises, a handwashing station with soap and water or an alcohol-based sanitiser approved for use by the Kenya Bureau of Standards is provided;
- employers should also put in place measures to ensure that physical distance of no less than 1 m is maintained between persons accessing or within their premises or business location; and
- the premises or business location should be regularly sanitised.
3. Are there any specific obligations, liabilities or duties of conduct imposed on landlords, tenants or visitors with respect to the use or re-use and decontamination of premises; care, cleaning and maintenance of the exclusive and common areas; reporting requirements and/or measures in case of identified infections; health and safety issues - e.g. recommissioning water systems to avoid virus, installation of plexiglass screens, moving desks to comply with distancing, remodulation of fire prevention strategies (entrance/exit routes)? Is any distinction made between asset classes?
There are specific obligations and duties imposed on landlords, tenants or visitors with respect to the use or reuse of premises.
Section 6(1) of the Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 (the Public Health Rules) provides that every person who is in a public place during a restriction period shall:
- maintain a physical distance of no less than 1 m from the next person; and
- use a proper face mask coverings the person’s mouth and nose.
Section 6 (2) of the Public Health Rules further provides that every organisation, business entity, trader or vendor, whether in a market or enclosed premises, shall:
- provide at its business location or entrance to their premises a handwashing station with soap and water or an alcohol-based sanitiser approved for use by the Kenya Bureau of Standards;
- put in place measures to ensure that physical distance of no less than 1 m is maintained between people accessing or within their premises or business location; and
- regularly sanitise their premises or business location.
With respect to decontamination of premises, section 6 of the Public Health (Prevention, Control And Suppression of COVID-19) Regulations, 2020 (the Public Health Regulations) provides that where a building, premises or conveyance has signs of COVID-19 contamination or where a medical officer of health has information of contamination of a building, premises or conveyance, the medical officer of health may decontaminate or order the decontamination of the affected building, premises or conveyance.
Under Section 7 of the Public Health regulations, the medical officer of health or public health officer may:
- order the evacuation of the building, premises or conveyance; or
- prohibit entry into the building, premises or conveyance for a duration necessary to decontaminate or cause its decontamination.
The Ministry of Industrialization Trade and Enterprise Development issued guidelines for business operations during COVID-19 dated 2 June 2020 (the Guidelines). These provide the following measures to help businesses operate safely during the COVID-19 pandemic and reduce the risk of COVID-19 spreading:
- designation of staff or teams responsible for in-facility enforcement of compliance with the Guidelines (committee or single staff, depending on the establishment);
- social distancing for members of staff and customers/clients, with a distance of at least 2 m;
- regular handwashing using running water and soap to minimise many other communicable diseases besides COVID-19; in the absence of handwashing facilities, workplaces are urged to use alcohol-based hand sanitisers;
- disinfection of surfaces such as tables, chairs, counters, tools and other equipment regularly;
- wearing masks whenever in public places, including workplaces;
- no handshaking/hugging as greetings; and
- proper waste management for personal protective equipment (PPE), such as used masks and gloves.
The Guidelines urge all Kenyans to call 719 to report any cases of COVID-19 and text *719# to receive up-to-date information.
The president of Kenya also urged all Kenyans to adhere to the protocols set out by the Ministry of Health for protection. The president emphasised regular washing of hands with soap, wearing of masks and social distancing as some of the key protocols that Kenyans must strictly follow to limit the spread of COVID-19 – see the official communication here.
4. Are there any rent suspension measures and/or stay of recourses and actions (including eviction) or any government support initiatives such as a furloughed building grant scheme (if so, maybe only a part of the building should be re-occupied)? When rent suspension measures are available, what is the usual payment mechanism and timing agreed to by the parties?
As at 3 September 2020, the government of Kenya had not introduced any rent suspension measures and/or stay of recourses and actions. However, the Pandemic Response and Management Bill (the Pandemic Bill) proposes certain measures to help tenants. The Bill is yet to be passed into law. It proposes the following with respect to tenants whose financial situation has been affected by the pandemic:
- The tenant shall give notice in writing to the landlord or contracting party that they are unable to meet their obligations because of the pandemic.
- On receipt of the notice, the contracting party shall enter into agreement on how the tenant shall meet their obligation at the end of the pandemic.
This allows tenants to renegotiate the terms of their tenancy, including rent suspension.
The Bill further seeks to prohibit enforcement action during a pandemic against defaulting tenants affected by the pandemic, including forbidding the levying of distress for rent and termination of leases or licenses for non-payment of rent. The Bill is still under deliberation in Parliament.
The president of Kenya has called on landlords to exercise compassion and understanding for tenants unable to meet their rent obligations during the pandemic. For more information, see the official communication.
Some landlords have reduced the rent payable. The duration of the reduced rent is not fixed and is dependent on the understanding between the landlord and the tenant.
5. Are there specific tax reliefs on payment or collection of rent instalments? Do they apply subject to actual payment or regardless? Do they apply generally or only to specific asset classes?
As at 3 September 2020, there are no specific tax reliefs on payment or collection of rent instalments.
6. Are there any measures regarding relief from the performance of real estate-related contractual obligations?
As at 3 September 2020, the government of Kenya has not introduced any such measures. However, if passed into law, the Pandemic Bill will provide relief from the performance of real estate-related contractual obligations.
Under section 28 of the Pandemic Bill, where a contract is entered into before the declaration of the pandemic and the pandemic affects performance of the contractual obligations, the following shall be prohibited:
- commencement of levying of execution;
- enforcement of security over movable and immovable property used for the purpose of trade, business or profession;
- repossession of any goods used for the purpose of a trade, business or profession; and
- termination of lease or licence of immovable property in connection with non-payment of rent or other monies.
7. Are there any credit facilities in place to mitigate loss of income for landlords?
There are none so far. Lenders have called on borrowers to apply for restructuring of their loans where there is loss of income caused by the pandemic. For more information, see the official communication.
8. Is there any relief from loan repayments / enforcement of loans secured against properties?
The Central Bank of Kenya reduced the Central Bank Rate to 7% from 8.25% in March. For more information, see the official communication.
This is intended to encourage commercial banks to reduce the interest rates for borrowers.
On 18 March 2020, Central Bank of Kenya announced a set of measures that commercial banks will undertake to alleviate the adverse economic effects of COVID-19. Borrowers affected by the pandemic can contact their banks for assessment and restructuring of their loans based on their respective circumstances arising from COVID-19.
9. Are public services necessary to complete the sale, acquisition or other operation of real estate assets or companies or to establish the right to open for business (planning authorities, notary public, Land Registry, Companies’ Registry, etc.)?
Public services are necessary to complete the sale, acquisition or other operation of real estate assets or companies (but not to establish the right to open for business). For example:
- the local county councils are required to issue the relevant rates clearance certificates;
- the relevant land registry is required to issue the rent clearance certificate, commissioner’s consents and for registration;
- various local boards are required to issue land control board consents for agricultural properties located within their jurisdiction;
- the Companies Registry is required to register securities issued by companies;
- the Collateral Registry is required to register various security rights regarding movable properties and attachments on such movable properties; and
- some authorities such as the National Construction Authority and National Environment Management Authority are required to issue approvals and licenses for construction on land.
10. Are there any specific processes or protocols available to consummate real estate operations enabling them to comply with any required social distancing (e.g. electronic signature, etc.)?
The Business Laws (Amendment) Act 2020 came into operation on 18 March 2020. It was enacted to make it easier to do business in Kenya by digitising transactions and reducing the formalities and documents required to complete transactions. Some of the most notable provisions are:
- introduction of the use of electronic signatures by amending the Law of Contract Act
- amending the Registry of Documents Act to permit use of electronic signatures and advanced electronic signatures in execution of documents, and electronic filing of documents at the Registry of Documents
- amending the Stamp Duty Act to provide for stamping documents through electronic means
- amending the Survey Act to enable use of electronic signatures and advanced electronic signatures, electronic processing of the seal of Survey of Kenya, electronic processing of documents including plans, surveyors to submit documents to the Director of Survey electronically, and electronic authentication of documents by the Director of Survey
- amending the Land Registration Act to provide for use of electronic signatures and advanced electronic signatures
- deletion of the requirement to obtain land rent and land rates clearance certificates before dealing in land – though this needs to be at again, as some of the other provisions requiring these clearances and consents were not abolished
- abolition of the requirement for companies to have a seal that previously had to be physically embossed on documents
The National Construction Authority (NCA), the body that approves all construction works in the country, has encouraged members of the public to avoid physically visiting its offices, but to contact it during working hours through its social media channels, or by calling its customer care hotline. It has also indicated that it will offer services to the members of the public through its online platforms.
In line with the directive banning all public gatherings, the NCA suspended all planned contractor training programs and the training and upskilling programs for skilled construction workers and construction site supervisors until further notice.
11. Are contractors who were carrying out works within the premises obliged to resume them? Can building sites reopen when they were closed down? Are there any specific provisions in relation to certain asset classes authorising continuation / resumption of works (e.g. healthcare structures)?
Yes, contractors are allowed to continue with their works if they follow the Ministry of Health’s directives, including:
- provision of clean water, soap and hand sanitisers to all workers and visitors on site;
- introduction of signage at visible site locations containing COVID-19 prevention guidelines; and
- ensuring that, where possible, workers maintain reasonable distance from each other, through working in shifts or rearranging the work schedule to accommodate social distancing.
Contractors have been advised to send home any workers exhibiting symptoms, especially a cough, fever or shortness of breath, and those affected should be referred to the nearest health facility. For more information, see the official communication.
The NCA has also issued guidelines for all contractors to follow during the pandemic. For more information, see the official communication.
The guidelines provide for the following with respect to social distancing at construction sites:
- maintain appropriate distances of at least 1.5 m between coworkers and clients, and between clients and other clients (though the Occupational Safety and Health Post COVID-19 Return to Work Advisory dated 29 June 2020 mandates workplaces to ensure social distancing of not less than 2 metres between employees in all directions)
- designate clear workspaces for each worker if possible
- stagger shifts and rotate staff members on leave to reduce the number of people on site at any given time
- limit external visitors and request guests to abide by all workplace safety protocols while on the premises
The guidelines further provide for general workplace protocols at construction sites, as follows:
- encouraging remote use of technology to facilitate site meetings and inspections
- employees critical to running of operations at mine sites to report in shifts
- NCA guidelines to be implemented strictly on construction sites
- registration of all visitors to buildings, ensuring wearing of face masks within common areas in buildings
- increased health and safety requirements including providing water, soaps and sanitisers, temperature checks and disinfecting premises where applicable
- ensuring constant supply of water on premises
- advocating for adoption of easy to clean building materials such as used in hospitals to avoid spread of virus
- team meetings in mining sites, construction sites to be held outdoors
12. Are there remedies or contractual arrangements available to address impossibility or delay for a party to handover premises to another which are/were to be constructed or refurbished, or for such other party to take over those premises?
In respect of contracts that have a force majeure provision, the party wishing to rely on this provision would need to prove that the COVID-19 pandemic is covered by the force majeure provision.
Force majeure provisions that are triggered by the COVID-19 pandemic may free a party from liability or obligation of performance. If a force majeure clause is triggered, it may have different effects on the obligations of the parties: it could suspend the performance of the obligation for a specific duration, or suspend the performance of an obligation indefinitely.
In the absence of a force majeure clause, parties can agree to make arrangements to address the impossibility or delay of the performance of obligations.
Some contracts allow for a time extension, which could be equivalent to the duration of the pandemic. Where the contract has such a provision, invoking it can free a party from liability for non-performance at least for the duration and up to the time the pandemic ceases to affect the parties’ obligations.
The parties can also opt to apply the common-law principle of frustration of contract due to the impossibility or delay caused by the COVID-19 pandemic. A contract is frustrated when it cannot be performed, without fault of either party, typically due to unforeseen events. A frustrated contract is automatically terminated, and all future obligations are discharged.
13. Has the duration of validity of administrative authorisations pertaining to development/construction of real estate assets (in particular planning authorisations) been extended?
Litigation & Regulation
14. Is the use of disclaimers for visitors or others coming on to the site of business useful for limiting potential future COVID-19 claims?
The use of disclaimers is useful but does not absolve the employer absolutely from liability:
- The Occupiers’ Liability Act imposes a statutory duty of care on the occupier or owner of premises to take such reasonable measures to ensure the safety of visitors or licensees occupying the premises.
- Though the Act makes provision for the employer to give disclaimers, restrictions or warnings so as to reduce the extent of liability, the Act is clear that such a warning or disclaimer is not to be treated as absolving the occupier from liability, unless if in all circumstances the warning was enough to enable the visitor to be reasonably safe (Section 3 (4)(a).
With particular regard to COVID-19, Rule (6)(2) of the Public Health (COVID-19 Restriction of Movement of Persons and Related Measures), Rules 2020 (the Rules) requires the occupier to adhere to the safety measures set out in the Rules, such as providing a handwashing station.
This material was prepared by DLA Piper Africa, Kenya (IKM Advocates)