EXPLAINER: What law says abought night evictions, demolitions

On Wednesday morning, Kenyans woke up to pictures and video clips of a demolition of structures near Nyayo Stadium, of a business associated with Kiambu Governor Kimani Wamatangi.

The night demolitions were carried out with the supervision of heavily armed police officers on grounds that the land was required by the Kenya Railways, the registered title owner.

Wamatangi, accompanied by his lawyers, supporters and a section of clergy, visited the place and lamented that the exercise was done in violation of an existing lease and a valid court order.

Other than the carwash, structures and kiosks, several vehicles were destroyed in what the Kiambu County boss claimed as ‘political persecution’ by his detractors.

Wamatangi has since vowed to move to court to seek damages and other reliefs.  His case will be premised on similar occurrences in the past.

But what does the law state concerning demolitions and evictions of persons and entities occupying disputed parcels of land? How have the courts handled similar disputes in the past?

Kenya Railways has blamed the governor for allegedly ignoring a lawful notice to vacate public land issued six years ago, leaving authorities with no option but to reclaim the property through enforcement.

The law specifies that evictions should only be carried out during the daytime, never at night, unless the affected persons consent otherwise.

According to legal experts and several court decisions, a demolition or eviction can only be lawful if it’s done after a sufficient notice is issued to the affected parties or a court order is obtained.

Landlords or authorities are prohibited from carrying out evictions in the early hours of the morning, at midnight, or on weekends/public holidays.

The law also requires that the exercise can only be done between 6 am and 6 pm on a working day and not over the weekends, at night or in harsh conditions like the rainy season.

The courts have held that a mandatory 30-day notice, even for illegal structures on riparian land, must be issued before any demolition.

This is meant to give affected persons sufficient time either to comply and move or go to court to seek protection.

Section 152 (F) of the Land Act provides that ‘Any person or persons served with a notice to move may apply to Court for relief against the notice.’

The Land Laws (Amendment) Act 2016, which came into operation by virtue of the Presidential Assent on August 31 2016, brought forth radical changes to the eviction regime in this country.

One of the novel features of the Act was the introduction of an elaborate procedure that governs evictions of persons deemed to be unlawfully occupying either public, community or private land.

Section 152 (E) & (G) of the Land Laws (Amendment) Act No. 28 of 2016 provides that the notice to vacate must be issued not less than three months before the intended date of eviction.

Section 152 (G) of the Land Act stipulates the procedures that have to be followed in carrying out an eviction from a disputed land.

The Act states that, notwithstanding any provisions to the contrary in this Act or in any other written law, all evictions shall be carried out in strict accordance with the procedures.

They include proper identification of those taking part in the eviction or demolitions, presentation of the formal authorisations for the action, and must be carried out in a manner that respects the dignity, right to life and security of those affected.

The same section says special measures should ensure that there is no arbitrary deprivation of property or possessions as a result of the eviction, and there should be mechanisms to protect property and possessions left behind involuntarily from destruction.

The court in the case of Atik Mohamed Omar Atik & 3 Others -vs- Joseph Katana & Another (2019) eKLR, stated as follows on the procedure for eviction of persons unlawfully occupying public, community or public land:

“In this regard, the first step in an eviction is for the lawful owner to serve a notice of eviction in accordance with the law. The essence of serving an adequate and reasonable eviction notice lies in the need to give the persons affected an opportunity to seek relief in court. Under Section 152E of the Land Act, any person or persons served with such notice may apply to court for relief against the notice.”

Even in a case where there is a dispute on rent arrears or cancellation of an existing lease, the law requires that the procedures be adhered to before ejecting a tenant.

In one case, the high court awarded Sh300,000 in general damages for unlawful termination of tenancy relationship, unlawful distress and eviction and for trespass upon the appellant’s goods and property to Paul Muthemba Wambugu.

This is after a landlord impounded his property over a Sh21,000 rent arrears dispute.

The courts have stated that even in the case that there are no clear regulations and laws governing demolitions and evictions, the exercise must be conducted in a humane way and in line with international law.

However, even when a forceful eviction is justified, it must be carried out in strict compliance with the law and in a humane manner.

The courts have reaffirmed that evictions are not supposed to take place in particularly bad weather or at night unless the affected persons consent otherwise.

Treaties and conventions ratified in Kenya form part of Kenyan law and are therefore binding to Kenya and can be interpreted as such by Kenya Courts.

In the now famous Mitubell society vs Kenya Airports Authority case, the Supreme Court affirmed that international law that guarantees the right to dignity is part of the Kenyan law before ordering the state to compensate over 3,000 members of the Mitumba village who were evicted violently without being given an alternative housing and in violation of a court order.