Article: What the law says about evictions – Ibrahim Mwathane

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[Source: Business Daily, by Ibrahim Mwathane]

Evictions are a rather difficult subject. They are informed by two very different schools of opinion! One is the inherent need for everyone to have a place for a home. And to feel secure thereon regardless of method of entry! The other is the need for those who own land to enjoy secure rights, without intrusion from unauthorized persons. The convergence is elusive. Tweeter posts on the matter during the recent Kariobangi evictions illustrate. “It’s inhuman to evict them”, one said. “Encroaching public land was, is and will ever remain a criminal offence”, countered another.

So why do evictions occur? Some genuinely landless people will move into any vacant land they find and occupy. First they stake out to see whether the owner would intervene. But with time, feeling confident that no one bothers, they build shelter and stay.

Other groups are encouraged to move onto vacant public or private land by political investors keen to harvest their political vote at an opportune moment.

There are also commercial squatters who target vacant land, private or public, for settlement then frustrate the legitimate owners to submission. They then subdivide and process informal sales to gullible buyers who eventually get evicted. Courts may also order evictions for a variety of reasons.

Undeveloped and unprotected public land has been the most easily encroached upon. Unoccupied private land has also been targeted for encroachment particularly at the Coast and in urban areas. The Athi River zone in Mavoko has also become a hotbed of systematic encroachments that at times morph into land invasions. Due to its vast nature, incidents of encroachment on community land can be hard to detect, but the owner communities are easily able to identify unauthorised settlers.

From just observing routine evictions, one gets the impression that we haven’t familiarized with the pertinent legal provisions. And we may not always be lucky to get away with the associated ignorance. Professionals familiar with the law are dismayed by the divide between text and practice. Forwards, the law must be changed, else its spirit and provisions followed. If the current law is strictly applied, many land owners, be they public or private, will detest it. Indeed, speculative squatters can mine it. So what does it provide?

The substantive law is to be found in the 2012 Land Act, which was tweaked through amendments made in 2016. While the law prohibits any unlawful occupation of any land, it calls for a very meticulous and rigorous eviction procedure, obliging land owners to notify any unlawful occupiers of either private, public or community land of any intended eviction.

Real Estate Law Books and Gavel

In the case of public land, such notice must be served upon the Land Commission. For unregistered community land, the law provides that the notice be served on the County Executive Committee Member responsible for land matters.

Notices for private land should be served on the unlawful occupier. Each of these notices must be served not be less than three months’ before the intended eviction. Furthermore, the notices by the Land Commission and County Executive must be published in the Kenya Gazette, placed in a newspaper with national circulation and ran on radio in the applicable local language.

Where large groups of people are involved, notices by private owners must be published in at least two newspapers with nationwide circulation. In each of the cases, those targeted for eviction can move to court, which may confirm, vacate, alter or even suspend the notice. If confirmed, evictions must be done in the presence of government officials, be humane and respect rights to life and property. The regulations to the Land Act prescribe fine details of the forms and the identification required of those to undertake evictions. They further provide that evictions must be done between 6am and 6pm on the material day. Have we been complying?

[Source: Business Daily, by Ibrahim Mwathane]


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