Where the buck stops in public land demolitions
The ongoing demolitions at Mavoko in Machakos County were triggered by the dismissal of a court case Aimi Ma Lukenya Society filed against the East African Portland Cement Company (EAPCC).
The society lost the battle for the land estimated to measure 1,740 acres after the Environment and Land Court judge Annet Nyukuri struck out its petition on a technicality. This was after members failed to comply with directives issued by the court on March 1 on an amended petition.
After the dismissal of the case, bulldozers descended on houses, churches and schools, bringing them down in an exercise that entered the fifth day on Tuesday.
The demolitions bring to focus what land-buyers go through and what the government ought to do.
Is there a law to guide evictions?
In a decision in 2013, Justice Isaac Lenaola (now Supreme Court judge) urged the government to come up with a legislation to guide evictions, based on international acceptable guidelines.
The judge said the guidelines should tell those carrying out evictions what they must do so as to observe the law and follow international best practice.
Justice Lenaola faulted the widespread forcible evictions coupled with a lack of adequate warning and compensation.
“To that end, I strongly urge Parliament to consider enacting a legislation that would permit the extent to which evictions may be carried out. The legislation would also entail a comprehensive approach that would address the issue of forced evictions, security of tenure, legalisation of informal settlements and slum upgrading,” the judge said.
The judge said the right to adequate housing cannot be aspirational and merely speculative. “It is a right which has crystallised and which the State must endeavour to realise,” he said. The directive has never been complied with a decade later.
What had the judge suggested for evictions to be carried out?
According to Justice Lenaola, there must be a presence of government officials, including county officials and security officers, during the evictions and they must comply with the right to human dignity, life and security of the evictees.
The judge said the evictions must not take place at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and preferably at the end of the school term or during school holidays.
Why has the law never been enacted?
Lawyer John Njomo says before the enactment of the Constitution in 2010, buyers used to rely on a principle known as innocent purchaser for value. With this, one could have argued that they were just an innocent buyer and win a case.
However, this changed recently when the Supreme Court ruled that it is not enough for a party to wave a lease or title document, it must be a product of due process.
According to the top court, if the due process was not followed a title cannot stand. The lawyer explained that when buying a property, one should not just look at the title but conduct due diligence and get the history of the land. If the property is tainted, then the title is a mere piece of paper, he said.
Who is to blame for the mess?
According to Mr Njomo, the government cannot escape blame because as the keeper of records, whatever emanates from government offices is assumed to be the official position.
The lawyer said sellers are also to blame and should be pursued for damages because they benefited.
A parliamentary committee on land chaired by former Gachoka MP Mutava Musyimi, following the demolition of houses in Syokimau in 2011, blamed a former commissioner of lands, land officials and physical planning department at Machakos and Nairobi counties and the department of survey for the mess.
The committee recommended that victims whose houses were knocked down because they were built on a flight corridor should claim restitution on the basis of contracts with sellers.
In that case, the victims had been sold land that belonged to the Kenya Airports Authority.
How many groups claim the EAPCC land?
A part of the EAPCC land holds a group of squatters comprising Syokimau Mavoko Community Association, Kathama Welfare Association, Mavoko Slums Upgrading Self-help Group, Mathi Association and Masua Self-help Group, who started erecting structures there in 2010.
A part of it was invaded by squatters after it emerged that mining, the main purpose for which the land was allocated, had been exhausted. These groups have been given 14 days to regularise their documents with the company.
Is the government also eyeing the land?
In 2021, the government sought to acquire 4,272 acres of land from the cement company for the construction of affordable housing under its Big 4 Agenda. The plan, however, came a cropper when the process was stopped by the High Court.
The government had brought in Chinese and Qatari investors to build the houses at Sh350 billion, but it was stopped because the State failed to follow the procedure for getting the land for the project. BY BUSINESS DAILY
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