The Process of Eviction in Kenya
Does a property owner have absolute power over the process of eviction? Property law has come a long way in addressing this. The law imposes restrictions to evictions. In this article, we shall look at different scenarios in which eviction is necessitated and how to legally evict a Tenant or an unlawful settler.
There are different types of eviction in Kenya. In this piece, we shall cover evictions in the following areas: –
- Eviction of a Tenant at a residential unit;
- Eviction of a Tenant from business premises protected under Cap 301; and
- Eviction of unlawful/illegal settlers.
- Eviction of a Tenant at a residential unit: –
The law has placed a few safeguards in respect of situations where a landlord in a residential unit intends to evict his tenant. These are those units where rent is paid periodically, for instance, monthly or quarterly in advance. The procedure to be followed majorly depends on how parties agreed in the first place. There is, however, a bare minimum, you cannot rightfully evict anyone without a Court order.
The requirement of a termination notice
There are landlord and tenant relationships whose agreements are not provided for in writing, oral agreements. They, therefore, do not provide for a notice period for termination of the Landlord-Tenant relationship. Also, there are agreement for the same in wring, but they do not have a termination clause.
Such relationships are governed by Section 57 of the Land Act, No. 6 of 2012 (hereinafter, “the Act”). The said provisions refer to such agreements as periodic tenancies. Section 57(3) of the Act provides that the notice period should be equivalent to the period between which the Tenant pays rent.
For a tenant who’s on a long-term registered lease, the lease terms will operate. A lease provides the lessee security of tenure for the entire period until the lease period is expired. For instance, if you were paying rent on a monthly basis, the Landlord should give a one month’s termination notice.
Upon the lapse of the termination notice, the Tenant becomes a trespasser. The Landlord can apply to the Environment and Land Court for an eviction order. The Court of Appeal in Gusii Mwalimu Investment Co. Ltd & 2 others vs. Mwalimu Hotel Kisii Ltd, Civil Appeal No. 160 of 1995 applied by the High Court in Teresia Irungu vs. Jackton Ocharo & 2 others  eKLR, held that:
“It is trite law that unless the tenant consents or agrees to give up possession the landlord has to obtain an order of a competent court or a statutory tribunal (as appropriate) to obtain an order for possession.”
- Eviction of a Tenant from business premises protected under Cap 301: –
The Landlord and Tenant, (Shops Hotels and Catering Establishments) Act (Cap 301 Laws of Kenya) (hereinafter, “the said Act), is an Act that creates and is meant to protect ‘protected Tenants’ from eviction and exploitation. Under the said Act, a landlord cannot evict the tenant without issuing a two (2) months’ termination notice. Parties may agree to a lesser period than two (2) months.
The termination notice has to specify grounds (provided for under Section 7 of the said Act) for the termination. Once the termination notice is served upon the Tenant, he/she may protest the notice by writing back to the Landlord indicating why he/she will not comply with the notice and file a reference, opposing the notice, to the Business Premises Rent Tribunal established under the said Act. The termination notice shall only continue being effective after the reference has been heard and dismissed by the Tribunal.
At the point when the Tribunal has dismissed the Tenant’s reference the notice shall run to its expiry and at the end of the notice period the Tenant becomes a trespasser. At this point the Environment and Land Court has jurisdiction over the matter. Eviction can only go ahead upon filing a suit at the Land and Environment Court contemporaneously with an application for eviction of the Tenant.
The Court of Appeal in Reuben Muli Musyoki t/a Konza Merchants vs Wayua Mutisya Kinothya & Another stated that;
“The Act upon which the appellants places much reliance protects the tenant, such as the appellant, against violation of that basic tenant of the rule of law namely; that no one shall be forcefully evicted from his property except under a due process of law. But unfortunately, the appellant himself has abused and ignore the provisions of the law and was not deserving of any protection from either the tribunal or the Superior Court he disregarded he notice and sat back on a flimsy excuse.”
- Eviction of unlawful/illegal settlers: –
This is one of the areas that are extremely thorny and emotive. For a long time, there was no express statutory procedure to evict squatters either on public or private property.
The case of Mitubell Welfare Society vs Attorney General and 2 Others Petition No.164 of 2011 went all the way from the Hight Court to the Supreme Court of Kenya. The main issue in question being whether the eviction of the squatters on public property was lawful. All the Courts agreed that there was no express procedure for eviction of squatters. All the Courts that heard the matter agreed that the problem could be cured by statutory provisions.
The said case and the varied decisions rendered prompted amendment of the laws relating to eviction of squatters on public property. The said procedures are contained in Sections 152 (B-I) of the Act.
The import of Sections 152 (B-I) of the Land Act inform the processes outline herein below.
a. Eviction of unlawful settlers on public property
The process begins with the National Land Commission making a decision to evict the occupant(s) of that property. Having made that decision, all parties affected should be served with an eviction notice of not less than 3 months. The said notices should be in writing published on the Kenya Gazette and in a newspaper of nationwide circulation as well as on radio announcement. It is preferred that the radio announcement be in a local language where the context so requires. The unlawful occupants may be evicted upon expiry of the 3 months’ notice.
b. Eviction of unlawful settlers on private property
The process begins with the property owner or his agent issuing to the unlawful settler(s) an eviction notice of not less than 3 months. All other persons affected should also be served with the eviction notice. Where the settlers are large groups of people, the notices should be placed conspicuously on at least 5 different points on the property, in at least two (2) newspapers of nationwide circulation and be shared by radio announcement. The notices should be in a national language and shared with the Deputy County Commissioner as well as the Officer Commanding the Police Division of the area.
c. Eviction of unlawful settlers on community property
The County Executive Member responsible for land matters makes the decision to evict to be notified in writing to the affected persons. The notice is shared in the Kenya Gazette, in one newspaper of nationwide circulation and by radio announcement. Where the community land is registered, it should be treated, for purposes of eviction, as private property.
It is a priority of the legal system to ensure that if an individual has to be evicted, the process has to be fair. Fairness is the backbone of virtually every legal process and evictions are no exception.
(Source: Derek Mwoma, Advocate at MJD Associates Advocates)