Evictions should follow certain procedures as prescribed in the law. The first procedure is issuing the unlawful occupiers an eviction notice beforehand. Eviction notices with regards to public, private and community land are provided by The Land Act of Kenya. In all three, the notice should be served 3 months before the intended eviction.
Procedures for issuing notices
Where the land encroached upon is public land, the National land commission ought to notify all affected persons in writing. They can do this by gazette notice, in one newspaper with nationwide circulation. They can also announce by radio in a local language where appropriate.
The same applies to situations that include unregistered community land. However, the notice is to be issued by the decision of The County Executive Committee Member responsible for land matters.
Where the land encroached upon is private land or registered community land, the notice should be issued by the owner of the land to the affected persons. The notice should be in writing, by radio, newspaper and through display in strategic locations within the occupied land. It should also spell out the terms and conditions as to the removal of buildings, and the reaping of growing crops. It should also be served to the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area.
What next after issuing eviction notices?
After issuing the notices, the aggrieved party is to move to court to obtain an eviction order against the unlawful occupants. This is seen in in the case of Margaret Karwirwa Mwongera v Francis Kofi [2019] eKLR . Where the petitioner after buying the piece of land has not been able to enjoy it. This is because the respondent has refused to vacate the land despite being summoned by the chief to resolve the matter.
The applicant went ahead and served the respondent with an eviction notice to the Deputy County Commissioner where the land is situated. The respondent failed to move out and did not file any pleadings to oppose the eviction notice. The applicant also served him with the notice of motion but he did not respond to it either. On this account the court allowed the application and granted to her the orders sought to evict the respondent with the help of a bailiff or auctioneer.
After obtaining the eviction court order, The Land Act further provides for how the evictions should be carried out under section 152 G.
Procedures for eviction
- precede by the proper identification of those taking part in the eviction or demolitions;
- precede by the presentation of the formal authorizations for the action;
- where groups of people are involved, government officials or their representatives to be present during an eviction;
- be carried out in a manner that respects the dignity, right to life and security of those affected;
- include special measures to ensure effective protection to groups and people who are vulnerable such as women, children, the elderly, and persons with disabilities;
- include special measures to ensure that there is no arbitrary deprivation of property or possessions as a result of the eviction;
- include mechanisms to protect property and possessions left behind involuntarily from destruction;
- respect the principles of necessity and proportionality during the use of force; and
- give the affected persons the first priority to demolish and salvage their property.
Remember: The above is not specific legal advice for you. Always consult a lawyer to determine the best option for your specific situation
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