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By IBRAHIM MWATHANE
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Where land is concerned, nothing evokes greater anger than entry, for whatever reason, without permission. Doing so usually attracts quick retribution, arrest or even jail. But there are folks who find themselves on land that isn’t theirs circumstantially for various reasons. There are also those shrewd ones who invade other people’s land gradually, by slowly violating boundaries. In Coast and parts of Mavoko and Nairobi, some have turned land invasions into a business. They move in forcefully then stay put, despite protests and lawsuits by the legitimate owners. Leaders to such invasion groups will usually invoke gangs and even political connections to stay on. They will use proceeds from the commercialised invasions to undermine any official efforts to evict them. Some land owners have had to painfully stand watch while such invaders demarcate and develop their land with utmost impunity.

But there are also people, particularly in urban areas, who may have innocently settled on unallocated public land. Such people proceed to erect structures on such land and live or do business thereon. Unknown to them, such land usually gets allocated with time. Those allocated such land subsequently move in and pronounce the occupants unwelcome and, in most cases, seek to evict them. Illegal occupations will be found on community land too, where groups of people may move in unseen by the legitimate owners.

Invoking adverse possession could lead to the acquisition of ownership rights of land occupied and used peacefully and continuously for periods of 12 years or more. But beside this, what do our recently enacted laws provide for in the above cases?

Does one have a right to invade private, community or public land? Are the invaders legally protected? Can a private landowner, a community or the land commission, which manages public land on behalf of the national and county governments, evict such invaders? For a long time, there were efforts to develop a stand-alone law on evictions and resettlement. But the provisions remained contentious. Ultimately, the provisions of the subject bill were incorporated into the Land Laws (Amendment) Act, which was enacted and became operational in 2016. This Act introduced substantive provisions on the eviction of unlawful occupiers of land in the Land Act of 2012. These provisions provide the basis for action by land owners and law enforcement officers where there is violation. Uninformed land owners could easily find themselves on the other side of these provisions in the event that their land got invaded. Why? Because the law prescribes processes that seem to place the onus and costs of evicting primarily on the landowner!

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Section 98 of the Amendment Act begins by prohibiting the unlawful occupation of private, community and public land. But it proceeds to provide that such unlawful occupants can only be evicted in accordance with the Act. It then sets out the mechanism to evict persons from each of the three categories of land. If the unlawful occupation is on public land, the National Land Commission is responsible for making eviction decisions. If the land is community, the county executive member of the county responsible for land matters will make eviction decisions. In each of these cases, a notice will be issued to the unlawful occupants through the Gazette, a newspaper with national circulation and by radio in a local language, at least three months before the eviction. And in the case of occupations on private land, the owner will serve the offending occupants with a notice not less than three months before the intended eviction.

Where large groups of unlawful occupants are involved, the notice must be published in at least two daily newspapers with national circulation and displayed in at least five strategic locations within the land occupied. The notice must also specify the terms of things like removal of any buildings or reaping of any crops on the land. Besides, it must be served on the deputy county commissioner in charge of the area, as well as the officer commanding the police division.

Then the law proceeds to give the unlawful occupants on public, community and private land the discretion to apply to courts for reliefs against the eviction notices issued. On considering the matters set out in the notices, the court could confirm, cancel or vary the notices on such terms as it deems equitable and just. It could also suspend the eviction notice for any period it may determine, or even order compensation. I suspect that this must sound very complicated and annoying to landowners. But this is our new law! Furthermore, any evictions must be preceded by the identification of persons to undertake the eviction or demolitions. Where groups of people are involved, government officials or their representatives must be present during the eviction. Among other things, the evictions must be carried out in a dignified manner, protect women, children, the elderly and those with disabilities as best as possible.

With all these requirements, landowners will appreciate that keeping off unlawful occupiers is their best bet.



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