This article follows the earlier discussion on the statutory eviction process and examines the loopholes, practical challenges and reforms necessary to make eviction law more effective and fair. See here- /media/insights/how-to-legally-evict-squatters-from-private-land-in-kenya-procedure-preliminary-steps-and-legal-requirements
Introduction
Kenya’s land laws recognise a proprietor’s right to recover possession from an unlawful occupier. The Land Act establishes safeguards intended to prevent arbitrary evictions, including notice requirements, court oversight and protection of persons affected by the process.
However, obtaining the legal right to evict does not necessarily mean that the proprietor can practically or affordably enforce that right. Landowners may face prolonged occupation, destruction of property, costly demolition, resistance, unidentified occupiers and difficulties recovering the expenses incurred in restoring possession.
The central concern is therefore not merely whether the law permits eviction, but whether it provides an effective and proportionate mechanism for enforcing the right to property without transferring the entire burden of unlawful occupation to the victim.
- The Cost of Lawful Eviction: A Significant Legislative Gap
Sections 152A to 152G of the Land Act establish the framework governing unlawful occupation and eviction. In relation to private land, section 152E requires the proprietor or person in charge to issue at least three months’ notice to the unlawful occupier, subject to the statutory requirements. The process may involve legal advice, preparation and service of notices, identification of the land, transport, labour, removal of structures, storage of property, security and restoration.
The difficulty is that the law does not provide a comprehensive and straightforward mechanism through which a proprietor can automatically recover the reasonable expenses of implementing a lawful eviction. Although Form LA 57 indicates that the occupier may be evicted “at your costs and peril,” the statutory framework does not clearly prescribe how the proprietor’s actual expenditure is to be assessed and recovered after the eviction.
This creates an imbalance. A proprietor may comply with the law, incur substantial expenses and successfully recover possession, yet remain responsible for costs directly caused by the unlawful occupation.
The courts have, however, demonstrated that such expenses can be shifted to an unlawful occupier. In Wafula v Angweyi & 3 others [2025] KEELC 7985 (KLR), the Environment and Land Court ordered the defendants to vacate and directed that, in default of voluntary vacation, the costs and attendant expenses of the eviction would be borne by them. The court separately addressed the costs of the proceedings. This illustrates the important distinction between litigation costs and the actual expenses of implementing an eviction.
The challenge is that a proprietor who obtains a court order may receive an express direction on eviction expenses, while one who relies on the statutory procedure without commencing litigation may lack an equally clear recovery route.
Recommendation: The Land Act should expressly provide that an unlawful occupier is liable for reasonable and proved expenses necessarily incurred in a lawful eviction. These may include:
- Notice, service and publication expenses;
- Reasonable labour and transportation costs;
- Demolition and removal of unlawful structures;
- Storage and preservation of property left behind;
- Restoration of fences and land; and
- Other necessary expenses directly attributable to the eviction.
The amount should be supported by receipts or other evidence and, where disputed, subjected to assessment by the court or another prescribed authority. Once assessed, it should be recoverable as a civil debt. This would prevent cost recovery from becoming a blank cheque while ensuring that the proprietor is not left bearing costs caused by unlawful occupation.
- The Failure to Distinguish Eviction Expenses, Damages and Mesne Profits
Another challenge is the tendency to treat all financial consequences of unlawful occupation as one category of “costs.” In law, however, different losses require different remedies and different forms of proof.
First, litigation costs are expenses incurred in prosecuting or defending a suit and are principally governed by section 27 of the Civil Procedure Act.
Second, eviction expenses are the actual costs of physically implementing the lawful removal of the occupier.
Third, mesne profits compensate the proprietor for loss of use or income during the period of wrongful occupation. They must be specifically pleaded and proved.
Fourth, damages for trespass may compensate interference with possession and vindicate proprietary rights, while special damages concern specific financial losses that must be specifically pleaded and strictly proved.
This distinction is important because a landowner may incur substantial expenses removing an occupier but fail to recover them if they are not properly pleaded or supported by evidence. Similarly, a proprietor may genuinely lose rental or agricultural income but fail to recover mesne profits for lack of proof.
In Githinji v Murage [2025] KEELC 18597 (KLR) at para 44, the court awarded general damages for trespass but rejected the claim for mesne profits because the plaintiff had not provided sufficient valuation or documentary evidence to support the amount claimed. Likewise, Tharao & another v Mwai & 3 others [2025] KEELC 18539 (KLR) and Melly v Yator [2025] KEELC 6632 (KLR) emphasise the need to establish the loss arising from deprivation of possession.
Recommendation: The law and legal practice should provide clearer guidance on the evidential basis for mesne profits. Depending on the nature of the property, proprietors should preserve rental agreements, comparable rental evidence, valuation reports, agricultural records, historical income and other material demonstrating the actual use value of the land.
The objective should not be automatic compensation based on an unsupported figure, but a predictable and accessible framework for proving genuine economic loss.
- Outdated Criminal Sanctions and Weak Deterrence
The civil process may restore possession, but it does not always adequately address deliberate, violent or organised land invasion. The Trespass Act and Penal Code provide criminal sanctions for certain forms of unlawful entry, occupation and possession.
Section 3 of the Trespass Act criminalises certain conduct on private land without consent, including entering, remaining upon, erecting structures, cultivating or grazing stock. Section 91 of the Penal Code addresses forcible detainer, where a person is in actual possession without colour of right, holds possession against a person legally entitled to it, and does so in circumstances likely to cause a breach of the peace or reasonable apprehension of such a breach.
However, unlawful occupation is not automatically synonymous with forcible detainer. The prosecution must prove the ingredients of the particular offence. Further, genuine ownership disputes should not be converted into criminal proceedings merely to obtain an advantage in a civil land dispute. In Veronica Nyambura Wahome v Republic [2019] KEHC 4486 (KLR), the High Court cautioned against using forcible detainer to resolve a genuinely disputed ownership claim.
The more significant concern is whether existing penalties adequately deter deliberate and organised invasion. Section 91 classifies forcible detainer as a misdemeanour, while section 36 of the Penal Code supplies the general penalty where no specific punishment is prescribed. Recent decisions cited in the draft, including Sepepiari v Republic [2024] KEHC 15596 (KLR) and Barisa v Republic [2025] KEHC 5271 (KLR), illustrate that convictions may result in relatively modest fines.
The concern becomes more serious where individuals organise groups to invade land, collect money from prospective occupants, fraudulently allocate plots, destroy property or repeatedly re-enter after removal. In such cases, the economic benefit derived from the occupation may far exceed the penalty imposed.
The Trespass Act also contains monetary penalties that are significantly outdated. The draft highlights provisions prescribing fines as low as KSh 500, KSh 2,000 and a contribution of up to KSh 600 towards removal expenses. Such figures do not reflect contemporary land values, construction costs or the practical expenses of eviction.
Recommendation: Parliament should review and modernise the Trespass Act and the relevant Penal Code provisions. The law should distinguish between Ordinary unlawful occupation; Aggravated occupation involving violence, threats, destruction or commercial exploitation; Habitual unlawful occupation; and Organised land invasion involving recruitment, financing, fraudulent allocation or profiteering.
Penalties should be graduated according to the seriousness of the conduct. The law should particularly target organisers and persons who profit from unlawful occupation, rather than focusing exclusively on individual occupants. Existing offences such as fraud, forgery, obtaining by false pretences, malicious damage and conspiracy should also be invoked where their ingredients are established.
- The Civil–Criminal Boundary and Delayed Police Intervention
A further challenge is uncertainty over when the police should intervene in land-related disputes. The three-month notice under section 152E is an eviction procedure; it should not be interpreted as preventing the investigation of an independent criminal offence.
Where an occupation involves violence, threats, destruction, fraud, forgery or other criminal conduct, the police should be able to investigate promptly without waiting for the conclusion of civil eviction proceedings. Otherwise, the owner may be forced to endure escalating criminal conduct while pursuing a separate civil process.
At the same time, the police should not become land adjudicators. Where one party claims ownership and another asserts a genuine legal claim, the question of entitlement to land ordinarily belongs to the appropriate civil forum. The criminal process should address independently established offences, not determine ownership by arrest.
Recommendation: The law should expressly clarify that:
- Civil eviction proceedings and criminal investigations may proceed concurrently where the facts disclose an independent criminal offence.
- Police intervention should not depend on completion of a civil eviction where there is credible evidence of criminal conduct.
- Criminal proceedings should not be used merely to resolve a genuine ownership, boundary, succession, trust or title dispute.
- Complaints against unknown occupiers should be capable of investigation where supported by evidence such as photographs, videos, title documents, survey reports, witness statements, vehicle registration details and information identifying organisers.
- The Need for an Expedited Mechanism in Serious Cases
The ordinary statutory process is important because it protects occupiers from arbitrary removal. Nevertheless, not every case presents the same level of risk. A routine occupation dispute is different from an organised invasion involving violence, fraudulent subdivision, permanent construction or repeated re-entry.
Where unlawful occupation continues unchecked, the situation may become more difficult and expensive to resolve. Structures may be erected, land may be subdivided informally, third-party interests may arise and evidence may become more difficult to preserve.
Recommendation: The law should retain the ordinary notice procedure but permit an expedited judicial process in cases involving credible evidence of Organised invasion; Violence or destruction; Threats; Fraudulent allocation or sale; Imminent permanent construction; Repeated re-entry after removal; or A serious risk of irreversible loss.
The Environment and Land Court should be able, where appropriate, to issue urgent orders for eviction, injunctions, police assistance, preservation of property, demolition, restoration and recovery of reasonable enforcement expenses. This would promote effective protection of property while retaining judicial supervision.
- Protecting Good-Faith Occupiers Without Rewarding Deliberate Invasion
A balanced legal framework must also recognise that not every unlawful occupier is necessarily a criminal. Some persons may occupy land under a genuine, though ultimately unsuccessful, claim arising from a boundary dispute, succession arrangement, trust, sale agreement or other alleged entitlement.
The law should therefore avoid treating every disputed occupation as deliberate criminal invasion. At the same time, an occupier should not be permitted to strengthen an unlawful claim merely by investing heavily in permanent structures after receiving notice of the proprietor’s objection.
Recommendation: The law should distinguish between good-faith occupation and deliberate bad-faith development. A person who knowingly constructs on another’s land after receiving lawful notice should generally do so at their own risk. However, courts should retain discretion where the occupier demonstrates a genuine and reasonable belief in the legality of the occupation.
This approach protects legitimate claims without creating an incentive to invade land or construct on it in the hope that the investment will make removal more difficult.
Conclusion
Kenya’s eviction framework contains important safeguards, but its effectiveness is weakened by gaps in cost recovery, uncertainty surrounding financial remedies, outdated criminal penalties and the absence of a sufficiently differentiated response to serious land invasion.
The reforms should not encourage self-help or extra-legal eviction. Rather, they should ensure that lawful enforcement does not become a second injustice to the proprietor.
A more effective framework should therefore Provide a clear mechanism for recovering reasonable and proved eviction expenses; Distinguish litigation costs, eviction expenses, damages and mesne profits; Improve guidance on proving loss of use and income; Modernise criminal sanctions for serious land-related offences; Target organised and habitual land invasion; Permit prompt police investigation of independent criminal conduct; Preserve the civil–criminal boundary in genuine land disputes; and Establish expedited judicial relief for urgent and aggravated cases.
Ultimately, the law should protect property rights, preserve due process, compensate proven loss and ensure that the financial consequences of unlawful occupation do not fall disproportionately on the person whose rights have been violated.
Sources
Land Act, No. 6 of 2012 (Laws of Kenya), particularly sections 152A–152G, on unlawful occupation and eviction.
Civil Procedure Act, Cap. 21 (Laws of Kenya), section 27, on the award of costs.
Trespass Act, Cap. 294 (Laws of Kenya), particularly sections 3, 5 and 12, on trespass and related penalties.
Penal Code, Cap. 63 (Laws of Kenya), sections 36 and 91, on misdemeanour penalties and forcible detainer.
Case laws
- Wafula v Angweyi & 3 others [2025] KEELC 7985 (KLR), on the recovery of costs and attendant expenses of eviction.
- Githinji v Murage [2025] KEELC 18597 (KLR), on trespass, general damages and the requirement to prove mesne profits.
- Tharao & another v Mwai & 3 others [2025] KEELC 18539 (KLR), on mesne profits and proof of loss
- Veronica Nyambura Wahome v Republic [2019] KEHC 4486 (KLR), on the distinction between genuine civil land disputes and forcible detainer.
- Melly v Yator [2025] KEELC 6632 (KLR), on mesne profits as compensation for loss of use or income.
- Sepepiari v Republic [2024] KEHC 15596 (KLR), on the applicable penalty for forcible detainer.
- Barisa v Republic [2025] KEHC 5271 (KLR), on sentencing for forcible detainer.
- Theuri & another v Mweni & 4 others [2026] KEELC 582 (KLR), on aggravated trespass and damages.
