Eviction Process Where a Purchaser Fails to Complete the Purchase Price After Taking Possession

1. Introduction 

In many property transactions, vendors permit purchasers to take vacant possession before fully paying the purchase price, often on the strength of good faith or against receipt of partial payment. However, where the purchaser defaults and refuses to vacate the property, the vendor cannot lawfully evict them through self-help measures such as forceful entry or demolition. 

The law now demands strict compliance with the eviction procedures under Sections 152A–152G of the Land Act, 2012, as clarified in the recent landmark decision of John Oluoch Atinga v Dalmas Adero Ogumbo & 2 Others [2025] KEELC 1274 (KLR). 

The Atinga ruling reaffirmed that even where ownership has been conclusively determined in favor of the vendor, the eviction of an occupant, regardless of whether they are a former purchaser, tenant, or trespasser, must be sanctioned by a court and executed humanely in accordance with statutory and human rights standards. 

2. Legal Framework Governing Evictions 

The governing provisions are found in Sections 152A to 152I of the Land Act, 2012, which provide a uniform procedure for evictions from public, community, and private land. 

       a) Section 152A — Prohibition of Unlawful Occupation 

This section prohibits occupation of land without the consent of the owner. Once a sale agreement is rescinded due to non-payment, the purchaser’s occupation becomes unlawful, entitling the vendor to initiate eviction proceedings. 

        b) Section 152E — Eviction Notice 

Where a vendor considers an occupant to be unlawfully in possession, the law requires the issuance of a written eviction notice of not less than three (3) months before the intended eviction date. 

The notice must:- 

• Be in writing and in a national and official language; 

• Specify terms and conditions for removal of buildings, crops, or other property; 

• Be served upon the occupier, the Deputy County Commissioner (DCC), and the Officer Commanding Police Division (OCPD) for the area; and 

• Where multiple persons are involved, be published in two national newspapers and displayed in at least five strategic locations on the property. 

It is important to note that failure to adhere to these procedural requirements invalidates the eviction process. 

        c) Section 152F — Application to Court for Relief or Confirmation 

After the notice period:- 

• The occupier may apply to the Environment and Land Court (ELC) for relief, seeking cancellation, variation, or suspension of the eviction notice, or compensation. 

• If the occupier fails to respond or vacate, the vendor must move to court to confirm the eviction notice and obtain an eviction order. 

The court then reviews the circumstances and, if satisfied, issues an eviction order confirming the lawfulness of the process. This judicial confirmation step is mandatory, even where ownership is undisputed. 

3. Judicial Clarification — Atinga v Ogumbo & 2 Others (2025) 

In Atinga v Ogumbo, the Environment and Land Court reaffirmed that no person may carry out an eviction without first obtaining a court order confirming the eviction notice. 

Facts 

The Applicant had been declared the lawful owner of land following a prior judgment, but the Respondents former claimants refused to vacate. The owner served an eviction notice under Section 152E and later applied to court for confirmation when they failed to comply. 

Holding 

Justice S. Okong’o held that: 

1. Even after ownership had been settled by judgment, the owner was still required to seek judicial confirmation under Section 152F. 

2. The Respondents’ failure to vacate or apply for relief justified the issuance of an eviction order. 

3. The Deputy Registrar was directed to issue warrants of eviction, supervised by the OCS of the relevant area. 

4. All parties executing the eviction were ordered to comply strictly with Section 152G, ensuring a humane and lawful process. 

Key Orders 

1. The Respondents were given 60 days to vacate voluntarily. 

2. Upon expiry, the court authorized forceful eviction and demolition of any remaining structures. 

3. The police were mandated to provide security during the eviction. 

4. Eviction to comply strictly with Section 152G — humane procedures and protection of vulnerable persons. 

This ruling serves as binding precedent confirming that judicial supervision is a precondition for all lawful evictions, even where ownership is not in dispute. 

4. Mandatory Procedures During Eviction - Section 152G 

Evictions must be carried out in a lawful, humane, and dignified manner. Section 152G requires that:- 

1. All personnel involved must be properly identified and carry formal authorization; 

2. Government officials or their representatives must be present during the eviction; 

3. The process must respect the dignity, life, and security of all affected persons; 

4. Vulnerable groups (women, children, elderly, persons with disabilities) must receive special protection; 

5. There must be no arbitrary deprivation of property; 

6. Occupants must be given an opportunity to salvage their property before demolition; and 

7. Any use of force must be necessary and proportionate. 

Failure to observe these safeguards renders the eviction unlawful and unconstitutional. 

5. Recommended Procedure for Vendors Facing Defaulting Purchasers 

1. Rescind the Sale Agreement 
   Formally terminate the contract in writing, citing the purchaser’s breach of payment terms and revoking their right to possession. 

2. Serve an Eviction Notice under Section 152E 

Give not less than three (3) months’ written notice, copied to the DCC and OCPD, and ensure publication if multiple occupants are affected. 

3. File an Application under Section 152F 

After the notice period lapses without compliance, move the ELC for confirmation of the notice and issuance of an eviction order. 

4. Secure a Court-Supervised Eviction 

Once the order is granted, the Deputy Registrar issues a warrant of eviction to a licensed auctioneer or court bailiff, who executes the eviction under police supervision. 

5. Ensure Compliance with Section 152G 

Maintain full documentation and photographic evidence of the eviction process, including identification of personnel, attendance of government representatives, and humane treatment of all occupants. 

Conclusion 

When a purchaser defaults on payment after taking possession, the vendor’s right to recover the property is preserved under the Land Act, 2012, but must be exercised through due process. 

The Atinga v Ogumbo decision reinforces that no eviction is lawful without a court order, even where ownership is clear. Vendors must, therefore: 

• Issue statutory notices under Section 152E; 

• Apply for confirmation under Section 152F; and 

• Execute evictions in compliance with Section 152G. 

HOW WE CAN HELP 

At CM Advocates LLP, our Conveyancing and Real Estate Department assists vendors and property owners in lawfully recovering property from defaulting purchasers. We handle the entire process, from rescinding sale agreements, issuing and serving eviction notices, applying for court confirmation, to overseeing court-supervised evictions in compliance with Sections 152E–152G of the Land Act. 

We ensure every step is legally sound, humane, and properly documented. For professional guidance on lawful evictions and property recovery, contact CM Advocates LLP today via www.cmadvocates.com or contact our contributors.

Contributors:

Jane Mugo

Brian Thuranira