Kenyan Jurisprudence in regards to land rights and passing on of proprietary interests has been rapidly growing. In 2023 alone, the Supreme Court of Kenya has furnished us with precedent in Dinah Management Ltd vs The County Government of Mombasa and Torino Enterprises vs The Hon. Attorney General. These precedents have served to introduce higher levels of due diligence required of purchasers and their Advocates when conducting conveyancing transactions. Consequently, the bar for passing on valid proprietary interests has continued to rise. However, conveyancing illegalities, land grabbing, and buying of parcels with fictitious titles continues to plague the Kenyan conveyancing environment. Whereas higher levels of due diligence are required of parties in the transactions, the purchasers continue to be at risk due to corruption in land registries, falsification of documents, failure to meet terms of agreements and other factors brought about by indolence, misrepresentation, fraud as well as other historical and systemic problems in Kenya’s land tenure system. This means that despite judicial intervention, we continue to see evictions happening to squatters, land grabbers and other parties who would have previously been considered bona fide purchasers for value.
In this regard, it is therefore paramount that we examine the rights of evictees and the responsibilities of evicting parties, the procedures for eviction and the existing position of jurisprudence in regards to the protection of the fundamental rights and freedoms of persons facing eviction.
Eviction is defined as the act of expelling someone who does not have the relevant proprietary interests in land from a property. Eviction is a highly regulated process and one which the Supreme Court of Kenya has painstakingly produced excellent jurisprudence on. In Satrose Ayuma & 11 others v. Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others, the principles that parties must comply with when conducting evictions were laid down. These principles were later cemented in amendments to Section 152 of the Land Act No. 6 of 2012 and include:
- Provision of Notices for Eviction.
- For eviction from public land. Section 152C outlines that the National Land Commission is responsible for notifying affected individuals at least three months in advance through written notices published in the Kenya Gazette, a newspaper of nationwide circulation, and radio announcements in a local language.
- Eviction from unregistered community land is provided in Section 152D. It states that provision of notice is the responsibility of the County Executive Committee Member for land matters. It also provides for a mandatory written notice, similar to public land. The Section also demands that the process is detailed in the Kenya Gazette, a newspaper of nationwide circulation, and radio announcements.
- Eviction from private land is provided in Section 152E. It requires that the landowner serve a written notice, at least three months before eviction, in a national language. If a large group is to be evicted, the notice should be published in newspapers of nationwide circulation and displayed in at least 5 strategic locations within the land. The notice should also be served on local authorities and police.
Section 152 F seeks to provide a buffer for evictees who feel that the eviction is unjust. It provides Individuals served with eviction notices with the right to apply to the court for relief and gives the courts the power to confirm, alter, cancel, suspend the eviction, or order compensation based on the circumstances.
- Mandatory Procedures for Evictions
The Land Act in Section 152G, provides for the mandatory procedures for all evictions. It requires proper identification of the persons conducting the eviction/demolition, presentation of formal authorizations for the eviction, the presence of government officials and/or group representatives during the eviction, and conducting the eviction in a manner that respects the dignity, right to life, and security of those affected.
This Section emphasizes that special measures must be in place to protect vulnerable groups such as women, children, the elderly and PLWD. It places emphasis on creation of measures to prevent arbitrary property deprivation, and safeguard property left behind involuntarily from destruction. It also cements the expectation that the use of force should align with principles of necessity and proportionality, and affected persons should be given the first priority to salvage their property.
- Disposal of Unclaimed Property During Evictions
After the eviction has taken place, the evictees have at least 7 days to collect their property that was left behind during the eviction. Section 152H addresses the disposal of unclaimed property left behind after an eviction. It requires that once the 7 days have lapsed, there is removal of any remaining property from the land in contention or its disposal by public auction.
- Destruction of Unauthorized Structures During Eviction
Finally, Section 152I provides for cases where construction or other activities have been initiated or concluded on a piece of land without proper authorization. The Section provides that the competent officer is empowered to issue a directive for the responsible party to dismantle the unauthorized structure or works. This directive will specify the timeframe within which this demolition must occur.
CONSTITUTIONAL ASPECTS OF EVICTIONS
Persons facing eviction also have Constitutional rights that cannot be taken away from them during this process, and violation of those rights can lead to litigation against the evicting parties. The Supreme Court of Kenya in William Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others [2021] eKLR provided that forced evictions that do not follow the due process violate the economic and social rights of evictees as per Article 43 of the Constitution. The Court insisted that the onus of ensuring that these rights and freedoms are attained and provided for falls squarely under the ambit of the State. The court highlighted that it is the obligation of the State to ensure that these rights and freedoms are not limited without reasonable justification. Such limitation would be a violation of the right to human dignity and freedom and security of the person as per Article 28 and 29 of the Constitution.
In cases where the landless occupy public land illegally and establish houses thereon, the court in Mitubell Welfare Society v. Kenya Airports Authority, SC Petition No.3 of 2018 pronounced that “they acquire not title to the land, but a protectable right to housing over the same.” These decisions by the Supreme Court show an overarching responsibility of the state and evicting bodies to protect the rights of evictees even as they secure their right to land as provided for in Article 40. The rights of the two conflicting parties must be balanced with the aim being equality and protection of fundamental rights and freedoms for all to whatever extent is possible.
Both private bodies and the state bodies effecting evictions are bound to respect the economic and social rights of evictees provided for in Article 43. They are obliged by Article 20(1) to not violate these rights as non-violation of human rights applies both vertically (between the state and the people) and horizontally (between all persons).
Conclusion
Evictions are a highly emotive subject in Kenya as land forms a large part of the economic, social, political cultural and religious aspects of Kenyan life. Reforms in the land sector have been going on for decades with many backward and forward motions in the fight for a more equitable and transparent land ownership regime. Despite the pursuit of equality, transparency and protection for land owners, corruption, poverty and shrewdness have been fighting back making the Kenyan land regime more perilous. It is therefore important that there is a balance of rights for land owners and evictors as well as evictees to ensure that the tenets of Constitutionalism and equality are protected for all people.
Date: November 3, 2023 By: Anne Gathirwa
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke