KITUO CHA SHERIA BLOG

Kituo Cha Sheria from 7th to 11th July trained about 60 participants from Kogony and Kanyakwar in Kisumu County. The training was geared towards enlightening the residents on their land rights to enable them understand their land rights in regards to the upcoming Northern By-Pass road construction in Kisumu County that will affect some residents.
The participants were taken through the process of acquiring title deeds, doing land transfers and successions.

Some of the Questions Encountered included:-

Question 1: What is unlawful eviction?

• Unlawful eviction means the permanent or temporary removal of persons from their home or land which they occupy against their will without the alternative of suitable forms of legal solutions.

Question 2: Who can be evicted?

• Any person who takes control of land or structures without the express consent of the owner or without any right in law to take possession of such land or structure.

Question 3: What are the procedures that should be followed prior to evictions in respect to public land?

• The National Land Commission is the one mandated with the task of conducting adequate consultations on the proposed evictions with the representative of the affected persons and families.
• Consultation shall include holding of public hearings that may provide the affected persons an opportunity to;
• Challenge the eviction decision
• Present an alternative proposal
• Articulate their demands and development priorities
• Where an agreement cannot be reached on a proposed alternative among concerned parties, the National Land Commission may constitute a mediation committee comprising representatives of the National Land Commission and the affected families or communities with a view to finding an amicable solution.

Question 4: What are the procedures that should be followed before evictions are carried out in respect to private land?

• If the owner is of the opinion that a person is in occupation of their land without consent, the owner may serve on that person a notice, of not less than three months before the date of the intended eviction.
• The notice shall be in writing and in a language that is generally understood by the person being evicted.
• In the case of a large group of persons, it should be published in at least two daily newspapers of nationwide circulation, and be displayed in not less than five strategic locations within the occupied land.

Question 5: What next after a person is served with an eviction notice?

• A person may apply to court for relief against the notice. The court may, at its own discretion:
• Confirm the notice and order the person to vacate
• Cancel or make additions to the notice on such terms as it deems equitable and just
• Suspend the operation of the notice for any period which the court shall determine
• Order for compensation

Question 6: My parcel of land has a 99 year government lease with effect from 1st January 1920 and therefore the term will expire in 4 years’ time. How do I go about to renew or extend the lease?

• A lease is an interest in land for a specific period of time and subject to payment of rent. Likewise there are also restrictions or conditions imposed by the lessor (land lord) to the lessee (tenant) on what he/she can do with the land. For example in the question above the person holding the 99 year lease is the lessee while the government is the lessor/land lord.
• In Kenya the government grants leases for land especially in urban areas so as to safeguard community interests and have direct control of the use and development of land.
• Examples of government lease terms are 33 year and 66 year leases for the former trust land areas – now Community Lands (native reserves in the colonial period). Such towns included Kapsabet, Kakamega, Mariakani, Embu and Kisii among others.
• In this case one could be given a 33 year term and on expiry of the same they would be added 66 years to make a total of 99 years. However this was on condition that they fulfilled the conditions in the lease in terms of developments and payment of statutory fees like annual rent and rates.
• The 99 year leases were granted on the former government land (crown land) and examples included towns like Nairobi, Mombasa, Eldoret, Kericho, Nyahururu and Nyeri among others. For such land the government grants a 50 year term on expiry of the 99 year term.However a 99 year extension can be granted if the lessee proves that they will completely re-develop the land by putting up a new approved structure on the land.

• The 999 year leases were granted by the former colonial government for agricultural farms in government land areas (crown land). Such farms are found in Nairobi and Rift Valley in what was famously known as the White Highlands. The 999 year leases being held by the former colonial farmers were transferred to the Africans who bought or were allocated the farms.
• However, the National Land Policy recommends leases of not more than 99 years and consequently all such leases are converted by the government to 99 years with effect from 1st September 2010 after the promulgation of the constitution, 2010.

Faith Ochieng’ & Ong’uti Mang’are

Kituo Cha Sheria