Proposed law to halt illegal evictions and demolitions in Nairobi

Over the years, Nairobi residents have become used to haphazard property demolitions, many a time without any eviction notice.

Areas in Nairobi affected by a spate of demolitions and evictions include Chokaa, Njiru, Dandora, Githurai and Kariobangi, some of which have resulted in injuries and loss of properties with affected residents left to spend nights in the cold.

The biggest outcry has accompanied the evictions in Njiru and Kariobangi North in the last two years, where more than 10,000 residents have seen their property demolished on land that the government said was meant for water and sewerage works.

Markets are also a target for evictions, some by private developers who claim ownership of the land on which they are built.

It is against this backdrop that the Nairobi County Assembly is looking to pass a law that will set out appropriate procedures for eviction, demolitions and resettlement in the county.

It promises to offer protection from arbitrary evictions, protection and enforcement of fundamental freedoms and rights and the right to fair administrative action for city residents.

The Nairobi City County Evictions, Resettlement and Demolitions Control Bill 2020, sponsored by Parklands MCA Jayendra Malde, seeks to streamline the demolition of unauthorised structures in Nairobi.

The Bill is currently in the second reading. If successfully passed, it will stop the weekend demolitions that have become the norm, ostensibly to take advantage of the fact that courts do not sit on weekends and are therefore unlikely to issue emergency orders stopping such exercises.

The Bill further proposes that such evictions be carried out during good weather with no heavy equipment used except for permanent structures.

“An eviction shall be conducted during regular working hours, on Monday to Friday and during good weather,” reads the Bill in part.

In cases where people are being evicted from public land, it should have been set aside for a public utility, with the government or county demonstrating its plans to roll out an infrastructure project on the said land.

They must also have a court order authorising the eviction or demolition.

Concerned person

Further, an eviction can only be done where the premises pose danger to a person or the public such as railroad tracks, garbage dumpsites, riverbanks, shorelines, waterways and public places like sidewalks, roads, parks or playgrounds.

But even then, a demolition order from a competent court must be issued to the concerned person who must have also been served with at least seven-day notice to show cause why such order should not be made.

City Hall will then be required to provide proper identification of all persons undertaking the demolitions or evictions, as a way of preventing abuse by the officials.

“The authorised officer (must) cause a demolition notice to be affixed in a conspicuous part of the public premises or land,” reads the Bill in part.

These haphazard demolitions also come at a cost to the county, in cases where victims sue for damages.

In July 2019, City Hall was ordered to pay Sh60 million in compensation to a couple whose property was demolished without notice in March 2018 in Kariobangi South to pave the way for the construction of a fire station.

The County Assembly Planning and Land Committee, which heard petitions from victims of the Kariobangi demolitions, found that Silas and Florence Njeru had been allocated their plots regularly, put up a four-storey building with the approval of the City Hall and duly paid rates up to 2017.

As a deterrent, the Bill now vests the county Land executive with the responsibility of sanctioning any eviction, after ascertaining whether it meets all the requirements set out in law.

The executive will then publish a notice of eviction in the gazette and at least two newspapers of nationwide circulation, at least three months before the eviction.

One of the common defences for those being evicted is that they have settled on the land in question for years, sometimes decades, and know no other home.

Families stranded

This aspect has normally been the most emotive among activists and human rights defenders, concerned about images of families stranded with nowhere to go.

To address this, the Bill will mandate the county to resettle evictees from public land as well as those displaced due to internal strife or acts of war.

The county must, therefore, prepare a resettlement plan before carrying out the evictions, which will include negotiations and agreements with representatives of the affected families and the communities where they are to be resettled.

“Where the return of the displaced persons is possible, the CEC shall establish conditions and provide means, including financial measures for voluntary return in safety, security and dignity to homes or place of habitual residence while ensuring the resettlement occurs in a just and equitable manner and accordance with the resettlement plan,” reads the bill.

Unauthorised occupant

For those on private land, a court order must be obtained by the landowner against any unauthorised occupant.

The private owner shall, before filing a suit for eviction, give written notice of at least three months before the date of the intended eviction to the unauthorised occupant with the notice posted in a conspicuous place within the land or premises or delivered to the unauthorised occupant.

The notice shall state the reason for the eviction and shall give the unauthorised occupant at least 14 days to vacate the land or premises.

“Where a notice is given and the unauthorised occupant does not vacate the premises or land, the owner may file a case in the High Court, seeking eviction orders,” the Bill reads.

However, the owner can apply for temporary removal of an unauthorised occupant of the premises or land pending the hearing and determination of the case, but only if there is real and imminent danger of substantial injury or damage to any person or property.

The Bill also allows the rightful owner of the land the right to auction any unclaimed property or material left behind after an eviction once they occupy the land.

But if the property is sold, the net proceeds of the sale after deducting expenses and dues to the government or the owner are paid to the evicted person.