What the law says about demolitions

The ongoing demolition of structures in Kibera, which started on Monday, has triggered a major outcry, with Amnesty International (AI) calling on the government to immediately stop the exercise and first complete the listing and resettlement of all affected people, estimated to be around 30,000.

"The goal of adequate and dignified housing cannot be met by stripping the 30,000 inhabitants of the only housing, shops, clinics and schools they have. Demolition prior to the completion of the Resettlement Action Plan betrays the public trust and violates our laws. They must be halted," said the group's executive director Houghton Irungu, in a statement.

Mr Irungu said the demolitions breached an agreement reached by Kenya Urban Roads Authority, Kenya National Human Rights Commission and National Lands Commission to resettle the affected residents.

Among the flattened structures were Makina Self-help Primary School and Adventure Pride Centre were flattened down.

The construction of the Ngong Road-Kibera-Kiungu Karumba-Langata link road has been in limbo over concern that the residents would not move out of the road reserve.

The link road is part of national government plan to ease traffic congestion in the city, in a bid to save the economy man-hours lost because of jams. The exercise had been extended by a week to allow affected residents to vacate.

But what does the law say about demolitions, and who should be blamed whenever properties are lost in the process?

Property developers and landlords have often lost a fortune when commercial and residential development projects are flattened to pave way for the construction of roads or other government structures.

UNFORGIVING BULLDOZERS

Scenes of unforgiving bulldozers bringing down buildings that have taken years to build have become common in the country with hardly a month passing before a developer, or a lobby group moves to court to block the demolition.

In most instances, the government and property investors have been blamed over such demolitions.

In the wake of protests, an outstanding factor agreed by property experts is that an agreement that the government must adequately compensate registered property owners whose investments are acquired or demolished for development must be struck.

Registered property owners whose investments would be affected by public developments, are protected by the Constitution.

Mr Humphrey Obach, a property lawyer at Obach and Partners Advocates, says while the government has a duty to fully compensate property owners of damaged investments, they have to prove that they are the rightful owners of the said properties.

"In Kenya, the land is either held under freehold which means it has a title deed, or on leasehold meaning the holder has a lease. Those are the two instances under which a land owner can seek to be compensated," says Mr Obach.

REGISTERED VALUERS

He advises developers to seek the help of registered valuers who would rate the property in accordance with the existing market rates, and have a valuation report ready after receiving the demolition notice.

While property owners can seek legal redress, the law does not require the State or its agencies to engage the public in the decision to acquire land; it only does so to establish who is eligible for compensation and for the Environmental Impact Assessment (EIA) process.

On whether the State should consult and dutifully compensate land owners or property holders before demolitions, the case of Runda property owners and the government is a pointer.

In the case, 296 families became homeless after the High Court ordered part of the gated community to create room for construction of the 21-kilometre Northern By-pass corridor.

The protracted court battle that pitted the posh Runda residents, lands and roads ministries, Kenya National Highways Authority, Kenya Urban Roads Authority and the Attorney-General, involved the width of the road reserve adjacent to the palatial houses.

The residents maintained that the road's width was 60 metres as per the Lands Ministry records, while the State argued that it was 80 metres as delineated on November 20, 1970.

The petitioners had urged the court to declare that their rights, individually or in association with others to acquire and own property, were being violated as guaranteed by Article 40 of the Constitution.

While issuing her verdict, Lady Justice Mumbi Ngugi declared that public interest supersedes individual's right to property.

Does the Government issue notices before demolitions and also compensate legal owners of affected property? What should an investor do upon receiving a notice from the State to demolish his or her building for development purposes?

Mr Obach says the government should issue notices to property owners or tenants to move out before embarking on demolitions.

And developers who feel the compensation is below their expectations can move to court to seek adequate and just compensation according to the calculation of their valuers.

The issue of demolitions has drawn the attention of county governments who have raised concern over how it affects property developments in counties.

Nairobi County Government has had its Members of the County Assembly debating over the issue of demolitions in the city's estates.

County governments through county regularisation of developments units, seek to see private buildings built on public land, river banks, railway and road reserves demolished.

According to Anna Ayieko, a private developer in Homa Bay County, most upcountry residents do not have titles and have a difficult time having their building plans approved. "Counties should accept ownership certificates and letters of allotment as valid ownership documents to process approvals," she says.

The National Construction Authority (NCA) has been continuously campaigning against cowboy contractors, ordering several to stop construction.

NCA is targeting contractors who are not registered with them and those who flout rules.

The authority is also against contractors who fail to set up signboards at the construction sites, and those who do not list all the professionals undertaking the works.

Buildings brought down recently in Nairobi and other cities

July 12, 2018: Demolition in Fedha, Tassia

City askaris led the demolition of more than 100 structures erected in the two estates a few months ago.

The askaris were accompanied by armed police as they descended on the stalls in the morning. Traders said they were not issued with a warning.

The structures were put up by area MCA Patrick Karani as part of his Youth Empowerment Programme.

March 24, 2018: Kangundo Road
The Nairobi county government demolished illegal structures along Kangundo Road to pave way for the construction of Kangundo Road market.

The Sh800 million project in Embakasi West will accommodate over 4,000 trader. It’s aimed at decongesting county markets.

July 19, 2018: Buruburu and Mutindwa market

Structures at Buruburu shopping centre and Mutindwa market were demolished as part of ongoing operations by the Nairobi County government.

Those at the shopping centre included hotels, pubs, stalls and a car wash.

March 2 2018: Simmers bar and restaurant

A contingent of police officers stormed the restaurant, bringing to an end the sprawling life of the popular joint. The officers removed furniture and everything stocked at the popular restaurant in Nairobi CBD.

July 18, 2018: Mombasa demolitions

Some 117 families in Mudhabaha were left homeless after Mombasa County government flattened their shanties to pave way for the expansion of the Coast General Hospital.

December 16, 2017: Structures belonging to Kisumu traders demolished.

Property worth Sh6 million was destroyed during demolitions by Kisumu County officials. Traders and residents in Dunga area said the officials brought down around 24 stalls and dozens of homes. The Impala-Dunga road is set for construction under the Kisumu Urban Project, funded by the French government.