WHAT YOU NEED TO KNOW ABOUT EVICTION PROCESS.

THE LEGAL FRAMEWORK

Section 152 of the Land Act N0.6 of 2012;

Provision of Notices For eviction.

Eviction From Public Land, Section 152 C, 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 nation wide 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;- sec 152E

This section 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.

MANDATORY PROCEDURES FOR EVICTIONS.

Section 152G

- Proper Identification of the persons conducting the eviction/demolition

- Presentation of formal authorization for the eviction.

- 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.

- Special procedures must be in place to protect vulnerable groups, such as women, children the elderly and Persons Living with disabilities

- Emphasizes on creation of measures to prevent arbitrary property deprivation and safeguard property left behind involuntarily from destruction.

- Cements expectation that the use of force should align with principles of necessity & proportionality & affected persons should be given the first priority to salvage their property.

Section 152H- Disposal of Unclaimed Property During Evictions

    - Evictees have 7 days to collect their property left behind during eviction.

    - Any  property remaining will be removed from the land in contention or will be disposed by public 

       auction.

Destruction Of Unauthorized Structures During Eviction.

Sec 152 (1) Construction on a piece of Land without authorization.

A competent officer is empowered to issue a directive for the responsible party to dismantle the unauthorized structure or works.

The directive will specify the timeframe within which this demolition must occur.


CONSTITUTIONAL ASPECTS OF EVICTIONS

The constitutional rights of the evictees must be observed otherwise litigation against the evicting parties will ensue.

WILLIAM MUSEMBI & 13 OTHERS~VS~ MOI EDUCATIONAL CENTRE CO LTD  & 3 OTHERS (2021) eklr.- The court deposed 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 impressed that it is the onus of ensuring that these rights and freedoms are attained and provided for , falls under the ambit of the state. These rights are not to be limited without reasonable justification as such limitation would be a violation of the right to human dignity and freedom & security of the person as per Article 28 and 29 of the constitution.

Where landless people occupy Public Land illegally and establish houses thereon. The court in Mitubell Welfare Society vs Kenya Airports Authority SC Petition N0.3 of 2018- pronounced that,`` They acquire not title to Land but a protectable right to housing over the same.''

There is 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 all parties must be balanced with the aim being equality and protection of fundamental rights and freedoms for all to whatever extent is possible.

Private bodies and state bodies effecting evictions are bound to respect the economic and social rights of evictees provided for in Article 43. Obligation is placed upon them by Article 20(1) to not violate these rights as n0n-violation of human rights applies both vertically (between the state and the people) and horizontally (between all persons).


DISCLAIMER:- This article is not meant to be construed as a legal opinion or advise, but for information purpose only. For any legal advice or consultation kindly contact; Wakili Wangu Kimure 

0716912966; kellenkimure@gmail.com

    

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