Introduction
A registered proprietor has the right to possess, use and enjoy private land. However, where persons occupy private land without the owner’s consent or other lawful authority, the proprietor cannot resort to self-help, force or unilateral eviction. Kenyan law provides a structured procedure for removing unlawful occupants.
The principal framework is found in sections 152A–152H of the Land Act, 2012, introduced through the Land Laws (Amendment) Act, 2016, together with the Land Regulations, 2017. Section 152A prohibits unlawful occupation of private, community and public land, while section 152B requires eviction of unlawful occupants to be undertaken in accordance with the Act. For private land, section 152E sets out the principal notice procedure.
The critical distinction is therefore between the proprietor’s right to land and the lawful procedure for recovering possession.
- Preliminary Steps Before Eviction
- Confirm ownership and the status of the title
The proprietor should first obtain an official search, certificate of title or lease, land register and relevant survey or cadastral records. The title should also be checked for restrictions, cautions, charges, leases or other interests.
Under section 24 of the Land Registration Act, 2012, registration vests the proprietor with the rights and privileges belonging or appurtenant to the land. However, under section 26, the validity of the title may be challenged on the grounds specified by law. Where ownership itself is disputed, the matter may require determination by the Environment and Land Court (ELC) before possession is recovered.
- Establish that the occupants are unlawfully on the land
Being a person other than the registered proprietor does not automatically make an occupant a squatter. The proprietor should establish how the occupants entered and whether they claim a tenancy, licence, sale agreement, inheritance, customary right, trust, allotment, adverse possession or another legal interest.
Where there is a genuine competing claim to ownership or possession, the proprietor should consider commencing proceedings before the ELC rather than undertaking physical eviction.
- Confirm the boundaries
Where occupation relates to only part of the land, the proprietor should establish the precise boundaries and extent of occupation. Section 18 of the Land Registration Act requires boundary disputes to be addressed through the statutory boundary determination process.
The proprietor should therefore involve the Land Registrar and survey authorities, and where necessary engage a licensed surveyor. The resulting survey report, Registry Index Map, measurements and photographs can establish precisely whether the occupants are within the proprietor’s parcel.
- Document the occupation
Before commencing eviction, the proprietor should preserve evidence including:
- title and official search;
- surveyor’s report and boundary records;
- photographs of the occupation and structures;
- names or descriptions of occupants;
- correspondence and previous demands;
- evidence of how the occupation commenced; and
- relevant reports from government authorities.
This evidence becomes particularly important if the occupants challenge the eviction.
- The Statutory Eviction Notice
- Issue the Three-Month Eviction Notice
Once unlawful occupation has been established, section 152E of the Land Act provides the principal procedure for eviction from private land.
The proprietor may serve the unlawful occupants with a written eviction notice of not less than three months before the intended eviction.
The notice should comply with section 152E and the Land Regulations, 2017, including the prescribed Form LA 57.
- Contents and Service of the Notice
The notice should:
- be in writing and in a national and official language;
- specify the terms and conditions of the intended eviction, including matters relating to buildings and crops;
- where a large group is involved, be published in at least two daily newspapers of nationwide circulation;
- where a large group is involved, be displayed in at least five strategic locations on the occupied land; and
- be served upon the Deputy County Commissioner (DCC) and the Officer Commanding the Police Division (OCPD) in the relevant area.
The proprietor should retain proof of service, including affidavits of service, acknowledgments, newspaper publications and photographs of displayed notices where applicable.
In Kenafric Properties Limited v Denyo & 34 Others [2023] KEELC 17995 (KLR), the court considered compliance with the statutory three-month notice and service requirements before eviction.
- Allow at Least Three Months
The statutory notice period must be allowed to expire before the physical eviction is undertaken. The three-month period gives occupants an opportunity to vacate voluntarily or challenge the notice.
- If the Occupants Challenge the Notice
Under section 152F of the Land Act, a person served with a notice under section 152E may apply to court for relief. The court may, among other things:
- confirm the notice and order the person to vacate;
- cancel, vary or suspend the notice;
- make additions to the notice; or
- make an order for compensation.
The proprietor should therefore not proceed with physical eviction merely because the three-month period has expired if there is a pending court challenge or order restraining the eviction.
- The court route: when Substantive Proceedings Before the ELC May Be Necessary
The section 152E notice procedure does not prevent a proprietor from instituting substantive proceedings before the Environment and Land Court where the circumstances require judicial determination.
This may be appropriate where there is a dispute concerning:
- ownership or title;
- adverse possession;
- boundaries;
- succession;
- customary rights;
- validity of a transaction; or
- another competing proprietary interest.
In Solome Naliaka Wabwile v Alfred Okumu Musinaka [2022] KEELC 1200 (KLR), the ELC recognised that eviction from private land may be pursued through the statutory notice procedure or through substantive proceedings in which the court determines the parties’ rights and grants appropriate relief.
Thus, the choice of route depends on the circumstances: where unlawful occupation is clear, the statutory notice procedure may be used; where a substantive dispute exists, court proceedings may be necessary.
- Mandatory procedures during the Actual Eviction
Section 152G provides on How the Physical Eviction Must Be Conducted
The expiry of the three-month notice does not give the proprietor an unrestricted right to use force or personally demolish structures. Section 152G (1) of the Land Act requires all evictions to be conducted in strict accordance with specified safeguards.
The eviction or demolition must:
- be preceded by the proper identification of those taking part in the eviction or demolition;
- be preceded by the presentation of formal authorisations for the action;
- where groups of people are involved, take place in the presence of government officials or their representatives;
- respect the dignity, right to life and security of affected persons;
- include special measures protecting women, children, elderly persons and persons with disabilities;
- ensure there is no arbitrary deprivation of property or possessions;
- provide mechanisms to protect property left behind involuntarily from destruction;
- comply with the principles of necessity and proportionality in the use of force; and
- give affected persons priority to demolish and salvage their property.
The Land Regulations, 2017 give practical effect to these requirements.
- Regulation 66 requires persons participating in an eviction to identify themselves through specified identification or authorisation documents.
- Regulation 67 requires evictions on private land to be formally authorised in writing by the owner, with the authorisation copied to the relevant national government administrators and OCPD.
- Regulation 68 requires evictions to be conducted between 6:00 a.m. and 6:00 p.m.
- Regulation 69 further requires evictees to be allowed to carry away their personal property and prohibits destruction of property left behind involuntarily.
Accordingly, the physical eviction should be properly authorised, planned and documented. The involvement of government or police officers does not replace the proprietor’s obligation to comply with the statutory procedure.
- Property Left Behind
Section 152H of Land Act 2012 on Disposal and Protection of Property provides that where occupants leave property behind after eviction, section 152H of the Land Act governs the disposal of such property.
The proprietor should therefore not immediately destroy, appropriate or dispose of property left behind. The applicable statutory procedure and safeguards concerning property must be followed.
This is reinforced by Regulation 69, which requires persons conducting the eviction to allow evictees to carry away their personal property and prohibits destruction of property and possessions left behind involuntarily.
- Constitutional Safeguards
Eviction must balance the proprietor’s Article 40 right to property with the rights of affected occupants.
Relevant constitutional protections include:
- Article 28 – right to dignity;
- Article 29 – freedom and security of the person;
- Article 40 – protection of the right to property; and
- Article 47 – fair administrative action.
The human-rights dimension of evictions was considered in Mitu-Bell Welfare Society v Attorney General & 2 Others [2013] eKLR, which highlighted the need for lawful and humane eviction procedures. The statutory framework in sections 152A–152G was subsequently introduced through the Land Laws (Amendment) Act, 2016.
- Documents to Have in the Eviction File
A properly prepared eviction file should contain, where applicable:
- Certificate of Title/Lease;
- Official Search;
- Registry Index Map and survey records;
- Surveyor’s report and boundary determination;
- Photographs and evidence of occupation;
- Identification or description of occupants;
- Demand letter and correspondence;
- Form LA 57 / section 152E eviction notice;
- Proof of service upon occupants;
- Proof of service upon the DCC and OCPD;
- Newspaper publications and photographs of notices, where required;
- Court pleadings and orders, where litigation is commenced;
- Extracted eviction order, where applicable;
- Formal authorisation for the physical eviction;
- Inventory of property left behind; and
- Photographic or video evidence of the execution.
Practical Procedure
Verify title and official search
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Establish whether occupation is unlawful
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Verify boundaries and extent of occupation
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Obtain survey/boundary evidence where necessary
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Document occupation and identify occupants
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Issue Form LA 57 under section 152E
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Serve occupants, DCC and OCPD
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Publish/display notice where required
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Allow at least three months
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If challenged, respond through the ELC/section 152F process
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If occupants remain, undertake eviction in accordance with section 152G
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Protect persons and property and allow salvage
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Deal with abandoned property under section 152H
Conclusion
A landowner’s title does not authorise immediate physical removal of persons occupying the land. The lawful recovery of possession requires proof of ownership, verification of boundaries, establishment that the occupation is unlawful, compliance with the section 152E notice procedure and, where necessary, recourse to the Environment and Land Court.
The physical eviction must thereafter comply with section 152G of the Land Act, including safeguards concerning dignity, vulnerable persons, property, proportionality and the opportunity to salvage belongings. Where occupants have a genuine competing claim to the land, or challenge the eviction, the matter should be resolved through the appropriate court process.
The key principle is simple: a landowner may have the right to recover possession, but that right must be exercised through the procedure prescribed by law, not through self-help or forcible eviction.
