TRESPASS ACT

LAWS OF KENYA

TRESPASS ACT

CHAPTER 294

Revised Edition 2012 [2010]

Published by the National Council for Law Reporting

with the Authority of the Attorney-General

www.kenyalaw.org

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CHAPTER 294

TRESPASS ACT

ARRANGEMENT OF SECTIONS

Section

1. Short title.

2. Interpretation.

3. Trespass upon private land.

4. Passing through or tampering with fences.

5. Trespass with intent to commit an offence or to intimidate, insult or annoy.

6. Trespass with intent to steal stock or agricultural produce.

7. Being found in proclaimed district on suspicion of stealing stock, etc.

8. Trespass in stock enclosure.

9. Occupier or police officer may arrest without warrant.

10. Occupier or police officer may take proceedings.

11. General penalty.

12. Court may order removal from land of person, family, stock and property.

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CHAPTER 294

TRESPASS ACT

[Date of assent:27th December, 1962.]

[Date of commencement:28th January, 1963.]

An Act of Parliament to make provision with regard to trespass on land

[Act No. 48 of 1962, L.N. 44/1963, L.N. 2/1964.]

1. Short title

This Act may be cited as the Trespass Act.

2. Interpretation

In this Act—

“agricultural produce” includes anything (whether alive or dead) produced

in the course of agriculture within the meaning of that term as defined in

subsection (1) of section 2 of the Agriculture Act (Cap. 318);

“cattle” means any bull, cow, steer, heifer, calf or any other animal which

the Minister may, by notice in the Gazette, declare to be cattle for the purposes

of this Act;

“cultivated land” includes ploughed or tilled land, land under crops and

plantations;

“enclosed land” means any land enclosed or surrounded, or substantially

enclosed or surrounded, by a fence, or partly so enclosed or surrounded

and partly by a river, so that the whole boundaries thereof may be known or

recognized;

“fence” includes any clearly defined ditch, hedge, wall or other erection by

which the boundaries of any land may be known or recognized;

“forest area” means any area declared under section 4 of the Forests Act

(Cap. 385) to be a forest area;

“occupier” means the owner or the person lawfully in occupation of private

land, any manager or agent of such person and, in respect of forest areas and

railway land, the Chief Conservator of Forests and the Managing Director of

Kenya Railways respectively;

“private land” means—

(a) land which is owned or occupied by any person by virtue of a

freehold title, a certificate of ownership or a lease; or

(b) land in respect of which a claim to an estate in fee, or to a lease,

has been made under the Land Titles Act (Cap. 282) and has not

been disallowed or refused; or

(d) any forest area; or

(e) railway land;

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“railway land” means land used or reserved for the purpose of, or in

connection with, a railway operated or to be operated by East African Railways

and Harbours Administration;

“stock” includes cattle, sheep, goats, pigs, horses and donkeys and such

other animals or birds as the Minister may, by notice in the Gazette, declare to

be stock for the purposes of this Act;

“stock enclosure” means any enclosed land in or upon which stock is

present or is habitually kept.

3. Trespass upon private land

(1) Any person who without reasonable excuse enters, is or remains upon, or

erects any structure on, or cultivates or tills, or grazes stock or permits stock to

be on, private land without the consent of the occupier thereof shall be guilty of

an offence.

(2) Where any person is charged with an offence under subsection (1) of this

section the burden of proving that he had reasonable excuse or the consent of the

occupier shall lie upon him.

4. Passing through or tampering with fences

Any person who, without reasonable excuse, whereof the burden of proof shall

lie on him, passes through, over or under, or tampers with, a fence shall be guilty

of an offence.

5. Trespass with intent to commit an offence or to intimidate, insult or annoy

(1) Any person who—

(a) enters into or upon property in the possession or occupation of

another with intent to commit an offence or to intimidate, insult

or annoy any person lawfully in possession or occupation of such

property; or

(b) having lawfully entered into or upon such property, unlawfully remains

there with intent to commit an offence or to intimidate, insult or annoy

any such person,

shall be guilty of an offence and liable to imprisonment for a term not exceeding

six months or to a fine not exceeding two thousand shillings or to both such

imprisonment and fine.

(2) If the property in respect of or upon which the offence is committed is used as

a human dwelling or as a place of worship or as a place for the custody of property,

the offender shall be liable to imprisonment for a term not exceeding one year.

6. Trespass with intent to steal stock or agricultural produce

(1) Any person who—

(a) unlawfully enters upon private land with intent to steal any stock or

agricultural produce in or upon any such land; or

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(b) having lawfully entered upon private land, unlawfully remains there

with intent to steal any stock or agricultural produce in or upon such

land,

shall be guilty of an offence and liable to imprisonment for a term not exceeding one

year or to a fine not exceeding five thousand shillings, or to both such imprisonment

and fine.

(2) Where any person has unlawfully entered, or having lawfully entered has

unlawfully remained upon private land, then in any proceedings under subsection

(1) of this section the burden of proof that he did not enter or remain as the case

may be upon the land with intent to steal stock or agricultural produce shall lie

upon him.

7. Being found in proclaimed district on suspicion of stealing stock, etc.

(1) Any person found in a proclaimed district in circumstances which may

reasonably lead to the belief that he is there for the purpose of stealing stock or

agricultural produce, or of doing or omitting to do any act for the purpose of enabling

or aiding another person to steal stock or agricultural produce, shall, unless he

shows that he was there for some lawful purpose, be guilty of an offence and liable

to imprisonment for a term not exceeding six months or to a fine not exceeding two

thousand shillings, or to both such imprisonment and fine.

(2) For the purposes of this section, “proclaimed district” has the meaning

assigned to that expression in the Stock and Produce Theft Act (Cap. 355).

8. Trespass in stock enclosure

Any person who without reasonable excuse, whereof the burden of proof shall

lie upon him, passes through, over or under, or tampers with, any fence enclosing

a stock enclosure or enclosure in or upon which agricultural produce is habitually

stored or grown shall be guilty of an offence and liable to imprisonment for a term

not exceeding six months or to a fine not exceeding two thousand shillings, or to

both such imprisonment and fine.

9. Occupier or police officer may arrest without warrant

(1) When any person is seen or found committing, or is reasonably suspected

of having committed, an offence under this Act, the occupier of the private land or

the owner of the fence, as the case may be, or any police officer, administration

police officer or administrative officer, may arrest that person without warrant, if

he has reason to believe that, except by arresting him, he may not afterwards be

found without undue delay, trouble or expense.

(2) For the purposes of ascertaining whether an offence under this Act is being

committed, it shall be lawful for a police officer, tribal police officer or administrative

officer to enter upon any private land without the prior consent of the occupier

thereof.

(3) A person apprehended under this section shall be taken with all practicable

speed before a magistrate and shall not be detained without a warrant longer than

is necessary for the purpose.

(4) A person other than a police officer making an arrest under subsection (1)

of this section may make over any person so arrested to a police officer, who shall

take the person arrested with all practicable speed before a magistrate and shall

not detain him without a warrant longer than is necessary for the purpose.

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(5) A person making over a person arrested to a police officer under subsection

(4) of this section shall give the police officer a written and signed statement setting

out the circumstances in which the arrest was made.

10. Occupier or police officer may take proceedings

Proceedings for an offence under this Act may be instituted by the occupier of

private land or the owner of a fence, as the case may be, or by a police officer with

or without the consent of the occupier or owner.

11. General penalty

Any person guilty of an offence under this Act for which no penalty is expressly

provided shall be liable to a fine not exceeding five hundred shillings or to

imprisonment for a term not exceeding two months or to both such fine and

imprisonment.

12. Court may order removal from land of person, family, stock and property

(1) On convicting any person of an offence under section 3 or section 4 of this

Act, the court shall order the person convicted to remove himself, his family, stock

and other property forthwith or within a period to be specified by the court from the

private land or premises in respect of which he was so convicted, and if he fails

to obey that order within the time limited by the court for its performance the court

shall authorize an administrative officer or a police officer to remove the person

convicted, his family, stock and other property from the land or premises.

(2) In authorising an administrative officer or a police officer to remove any

person convicted of an offence under section 3 or section 4, the court may, upon

the application of the administrative officer or police officer, order that person to

pay towards the costs of the administrative officer or police officer in effecting

his removal such sum not exceeding six hundred shillings as to the court seems

reasonable, and the sum so ordered may be recovered as if it were a fine.

(3) Any person who fails to comply with an order of the court made under

subsection (1) or subsection (2) shall be guilty of an offence and liable to a fine

not exceeding one thousand shillings or to imprisonment for a term not exceeding

three months, or to both such fine and imprisonment.

(4) Where any stock is found grazing on private land in contravention of the

provisions of this Act, the court may, in addition to imposing any other penalty, order

that the stock be confiscated and sold, and may direct that the proceeds of sale

thereof or such part of such proceeds as it may determine shall be paid to any

person appearing to be the owner of the stock:

Provided that where no such direction is given, or where the court directs that

only a part of the proceeds be paid to the person appearing to be the owner thereof,

the proceeds of sale, or such part thereof as has not been directed by the court

to be paid to the person appearing to be the owner thereof, shall be paid into the

Consolidated Fund.

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