Case Metadata |
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| Case Number: | Petition 65 of 2010 |
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| Parties: | Satrose Ayuma,Joseph Shikanga,Joseph Gitonga,Beth Waithira,Lydia Muthoni,Lameck Mwambe,Joseph Otieno,Wilson Githinji,John Ochieng,Eunice Opiyo,Yash Pal Ghai & Priscilla Nyokabi v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme Kenya Railways Corporation,Attorney General & Miloon Kothari |
| Date Delivered: | 30 Aug 2013 |
| Case Class: | Civil |
| Court: | High Court at Nairobi (Milimani Law Courts) |
| Case Action: | Judgment |
| Judge(s): | Isaac Lenaola |
| Citation: | Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others |
| Court Division: | Constitutional and Human Rights |
| County: | Nairobi |
| Case Summary: | Forced eviction is a violation to the right to housing Satrose Ayuma & 11 others v Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme & 3 others Petition No.65 of 2010 High Court of Kenya at Nairobi Constitutional and Human Rights Division I Lenaola, J August 30, 2013 Reported by Mercy Ombima Brief Facts
The 1st Respondent, (the Registered Trustees of the Kenya Railway Staff Retirement Benefit Scheme and also the Petitioners’ landlord), had in 2010 decided to terminate the tenancy of the Petitioners who were residents of Muthurwa Estate and issuing eviction notices with no reasons given. It had then proceeded to close the rent accounts of the Petitioners and stopped provisions of social amenities such as water and sanitation, and had subsequently put up advertisements to invite buyers of the said suit premises. The Petitioners had reiterated by obtaining a court injunction to stop the 1st Respondent from demolishing any of the houses, evicting them or terminating their leases or tenancies pending the hearing and determination of the petition. The Petitioners challenged the actions of the Respondents, claiming that they amounted to the following violations of their fundamental rights and freedoms: a) Their right to housing contrary to the Constitution of Kenya 2010 and the Universal Declaration of Human Rights (1948); b) Their children’s rights to education provided for by article 43 of the Constitution of Kenya, since the children in Muthurwa Estate were forced to drop out of school, given that the vacate notices were issued in the middle of a school year; c) Children’s rights to shelter and parental protection provided for under article 53 of the Constitution; d) Rights of Persons with Disabilities, since the actions of the Respondents caused loss of homes occupied by persons with disabilities, who were subsequently unable to access their places of work; e) The rights of the older members of the society who were retirees of the 1st Respondent, in violation of article 57 of the Constitution; and f) The Petitioners’ right to dignity, contrary to international instruments on human rights, such as the Universal Declaration of Human Rights, the Covenant on Civil and Political Rights; the Covenant on Economic, Social and Cultural Rights and the African Charter on Human and People's Rights.
International Law – general rules of international law - treaties and conventions – applicability of International statutes that had not been domesticated and incorporated as law - whether it was proper for the courts to rely on international conventions that had not been domesticated – Constitution of Kenya, 2010, article 2(5) & (6); Treaty Making and Ratification Act, 2012 Constitutional Law – Fundamental Rights and Freedoms – right to housing – where the First Respondent purported to evict the Petitioners without affording them reasons for the eviction – claim that the First Respondent was required by law to justify the decision leading to limitation of the Petitioners’ right to housing – whether the actions of the Respondents were justifiable - Constitution of Kenya, 2010, article 43 (1)(b); Universal Declaration of Human Rights (1948), article 25; International Covenant on Economic Social and Cultural Rights, General Comments No.s 4 & 7; UN Basic Principles and Guidelines on Development based Eviction and Displacement (2007) Constitutional Law - fundamental rights and freedoms – enforcement of the Bill of Rights in Kenya - whether the enforcement of the Bill of Rights was limited only to private persons – whether the court could require the 1st and 2nd Respondents, which were state organs, to uphold human rights obligations – Constitution of Kenya 2010 articles 2(1), 21(1) Constitutional Law – fundamental rights and freedoms – right to clean and safe water in adequate quantities – where the 1st Respondent (a landlord) stopped provision of water to its tenants (the Petitioners) in a move to evict them – claim that the Petitioners’ right to clean and safe water had been violated – whether the 1st Respondent was legally bound to provide water to the Petitioners as a fundamental obligation - Constitution of Kenya, 2010, articles 43(1)(d) and 56(e); Water Act, 2002, sections 53(2), 57(5)(d); UN General Comment No.15 Constitutional Law – fundamental rights and freedoms - rights of the child – right to shelter, parental protection and education – where the 1st Respondent decided to evict the Petitioners who had children from their tenancy premises – claim that the actions of the Respondents violated the Children’s right to shelter protected by the Constitution – claim that the evictions were commenced in the middle of a school year causing the affected children to drop out of school – whether the Respondents had violated the children’s rights – Constitution of Kenya, 2010, article 53; UN General Comment No. 7 (10)
Issues: i. What was the test for determining whether an entity was a private or public body? ii. Whether the Bill of Rights could be enforced as against a government organ or a private body. iii. Whether by a landlord evicting a tenant, without first providing alternative accommodation, would amount to a violation of the tenant’s right to housing. iv. Whether a landlord could limit the right to housing of a tenant without first justifying that limitation. v. Whether forcible evictions constituted gross violation to the right to adequate housing. vi. Whether it was proper for courts to rely on international statutes that had not been domesticated. vii. What were the conditions to be met before and during eviction of persons from their property? viii. Whether the Respondents violated the children’s rights to shelter and education by evicting the Petitioners in the middle of a school term.
Held:
1. In determining whether an entity was a public body or not, the Court was obliged to consider, inter alia, whether any share capital of the corporation was held by the government; whether the financial assistance of the state was so much as to meet almost the entire expenditure of the corporation; whether the corporation enjoyed monopoly status conferred by the state; whether a body had deep and pervasive state control or whether the functions of the corporation were of public importance. 2. The 1st and 2nd Respondents fit the description laid out above since they performed functions of a public nature and enjoyed monopoly with regard to the services they provided. The 1st Respondent was set up for the benefit of the Kenya Railways Corporation pensioners who constituted the Petitioners, while the 2nd Respondent was a Railway corporation, and its management was regulated by the government. Further, section 3(1) of the Interpretation and General Provisions Act defined a public body as any authority, board, commission, committee or other body, whether paid or unpaid, which was invested with or was performing, whether permanently or temporarily, functions of a public nature. 3. The Bill of Rights could be enforced as against a private citizen, a public or a government entity such as the 1st and 2nd Respondents. Previous decisions of the court on the subject had been completely misunderstood and misread by more persons than misguided journalists masquerading as scholars of constitutional interpretation. The Bill of Rights was not necessarily limited to state organs. Provisions of article 2(1) of the Constitution provided that, the Constitution was the Supreme Law of the Republic, and bound all persons and all state organs at both levels of the Government. Article 21(1) of the Constitution also provided that it was a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights. 4. The obligations of the State and its organs were clear cut, to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. The very raison d'etre (meaning: reason or purpose for being in existence) of the State was the welfare of the people and the protection of the people's rights. It was its obligation, under international and national laws, to ensure that human rights were observed, respected and fulfilled; not only by itself but also by other actors in the country. It therefore could and was obliged to regulate the conduct of non-state actors to ensure that they fulfilled their obligations as was the case with the 1st and 2nd Respondents. 5. Under article 20(3) as read with article 259 of the Constitution, the court was obligated to develop the law to the extent that it gave effect to a right or fundamental freedom. It was to adopt an interpretation that favoured the enforcement of a right or fundamental freedom, in order to promote the spirit and objects of the Bill of Rights. To interpret the Constitution in a manner to even suggested that the 1st and 2nd Respondents did not have an obligation to promote and protect the Petitioners' rights and freedoms, did not only fly right out of the window, but would also defeat the very essence and spirit of article 20(3) of the Constitution. It was neither the intention of the drafters of the Constitution nor the people of Kenya who overwhelmingly passed the Constitution that the Bill of Rights would only bind State organs. The Bill of Rights bound all state organs and all persons, whether they were public bodies or juristic persons. 6. Since the adoption of the Universal Declaration of Human Rights (1948), the right to adequate housing had been recognized as a fundamental human right. Article 25 of the Universal Declaration of Human Rights provided that everyone had the right to a standard of living adequate for the health and well-being of himself and of his family, which included the right to housing. 7. The right to adequate housing had also been recognised by a number of international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of all Forms of Racial Discrimination (CERD), Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child. It had also been recognised by the African regional treaty, the African Charter on Human and People's Rights and Kenya was a State party to all those treaties and conventions. 8. The Constitution of Kenya, at article 43(1)(b) also formally recognized the right to housing by providing that every person had the right to accessible and adequate housing to reasonable standards of sanitation. The right to housing had finally come of age in Kenya. The criteria to be adopted in developing the interpreting of the right to housing did not however, demand mathematical precision or scientific exactitude. It neither demanded talismanic formalism in recognising the specific requirements that the right demanded. It required a sober, liberal, dynamic and broad approach that would require an examination of the normative components of the right to housing generally as well as the nature of the right to adequate housing specifically. 9. The UN Committee on Economic, Social and Cultural Rights (CESCR) adopted two General Comments which clarified the interpretation of the right to adequate housing and the nature of the State Parties' obligations. These were General Comment 4 on the right to adequate housing and General Comment 7 on forced evictions. General Comment 4 established that the right to adequate housing should not be interpreted narrowly, as a right to basic shelter or roof over one's head; but rather as the right to live somewhere in security, peace and dignity. General Comment 4 had also clarified that the right to adequate housing was internally linked to other human rights including the inherent dignity of the human person. The right to dignity had become an interpretive principle to assist the further explication of the catalogue of rights and that all rights were best interpreted throughout the lens of the right to dignity. 10. The CESCR General Comment 4 also revealed that the right to housing should be ensured to all persons irrespective of their income or access to economic resources. The CESCR outlined seven key features to be considered when assessing whether housing was adequate or not as follows; a) Legal security of tenure; b) Availability of services, materials, facilities and infrastructure; c) Affordability; d) Habitability; e) Accessibility; f) Location; and g) Cultural adequacy. 11. In order to realize the full realization of the right to adequate housing, it was proper to ensure that the persons being evicted had participated fully in the decision-making process. The affected people and communities were to be consulted and would be able to contribute substantively to the process that would affect their right to adequate housing. That would even be more crucial in instances where resettlement, compensation and restitution were being considered. At all times, the privacy and security of each affected person was to be paramount. 12. The CESCR, in adopting General Comment 7, noted that forced evictions frequently violated other human rights such as the right to life, the right to security of the person, the right to non- interference with privacy, family and home and the right to the peaceful enjoyment of possessions. The CESCR’s authoritative comments made the right to adequate housing and security fundamental preconditions to exercising and enjoying other civil, political, social, economic and cultural rights. Without housing and security, other fundamental rights could not be enjoyed. Sadly, the current economic and fiscal policies of the Government of Kenya were not designed to secure that right for the overwhelming majority of the population; given the notorious and widespread practices of forced evictions without consultation, compensation or adequate resettlement, particularly in Nairobi. 13. The term “forced eviction” could best be understood in the context of the definition accorded to it by the Committee on Economic, Social and Cultural Rights. The Committee defined the term as the permanent removal against their will, of individuals, families and or communities from the homes which they occupied, without the provisions of, and access to appropriate forms of legal or other protection. The term was later adopted by the African Commission on Human Rights, which stated that although the right to housing or shelter was not explicitly provided for under the African Charter, housing rights were protected through the combination of provisions protecting the right to property, the right to enjoy the best attainable standard of mental and physical health and the protection accorded to the family. 14. Paragraph 9 of General Comment No.7 of the CESCR underlined the fact that state parties were obliged to use all appropriate means to protect the rights recognised in the CESCR and it also recognized that forced evictions were prima facie violations of the right to adequate housing. States were strictly prohibited in all cases, from intentionally making a person or community homeless following an eviction, whether forced or lawful. Paragraph 15 of the CESCR General Comment No.7 also elaborated on appropriate procedural protection and due process to be put in place to ensure that human rights were not violated in connection with forced evictions. 15. The position that international law only applied in cases where it has been domesticated and incorporated was not good law. The Treaty Making and Ratification Act, 2012 was enacted to give effect to article 2(6) of the Constitution. However, article 2(5) of the Constitution providing for application of international law principles applied squarely to the case before court. It was therefore proper and good practice for the court to seek guidance from international law, where local laws were silent or inadequate on an issue. 16. The UN Basic Principles and Guidelines on Development based Eviction and Displacement (2007) provided some guidance to states on measures to adopt in order to ensure that development-based evictions were not undertaken in contravention of existing international human rights standards and violation of human rights. Those guidelines provided measures to ensure that forced evictions did not generally take place and in the event that they did, then they would be undertaken with the need to protect the right to adequate housing for all those threatened with eviction, at all times. The protection accorded by those procedural requirements applied to all vulnerable persons and affected groups, irrespective of whether they held title to the home and property under domestic law. 17. UN Basic Principles and Guidelines on Development based Eviction and Displacement articulated the steps that states should undertake prior to taking any decision initiating an eviction; i. that the relevant authority should demonstrate that the eviction was unavoidable and was consistent with international human rights commitments; ii. that any decision relating to evictions should be announced in writing in the local language to all individuals concerned sufficiently in advance stating the justification for the decision; iii. that alternatives and where no alternatives exist, all measures taken and foreseen to minimize the adverse effect of evictions; iv. that due eviction notice should allow and enable those subject to the eviction to take an inventory so as to assess the value of their properties that may be damaged during evictions; v. that evictions should not result in individuals being rendered homeless or vulnerable to other human rights violations; and vi. that there must be resettlement measures in place before evictions can be undertaken. 18. The Guidelines on Evictions further articulated the conditions to be undertaken during evictions as follows; i. that there would be mandatory presence of Governmental officials or their representatives on site during eviction; ii. that neutral observers would be allowed access to ensure compliance with international human rights principles; iii. that evictions would not be carried out in a manner that violated the dignity and human rights to life and security of those affected; iv. that evictions would not take place at night, in bad weather, during festivals or religious holidays, prior to elections, during or just prior to school exams; and v. that at all times, the state was to take measures to ensure that no one was subjected to indiscriminate attacks. 19. Persons responsible for the evictions were required to provide just compensation for any damage incurred during eviction, and sufficient alternative accommodation immediately upon the evictions. At the very minimum, the state was required to ensure that the evicted persons had access to essential food, water and sanitation, basic shelter, appropriate clothing, education for children and childcare facilitates. Those important guidelines had been adopted by the African Commission on Human and Peoples Rights. 20. The notion of the right to adequate housing was therefore simply not a right to four walls and a roof. It had other elements to it including those that had been articulated under General Comment No.4 of the CESCR, all which constituted a fundamental shift in the realization of the right to adequate housing. The court had a duty and an obligation to protect that right at all times. It was important to safeguard the Petitioners right to adequate housing due to their long history on the suit premises, which for some of them span for decades. They had formed an attachment with the suit premises and it mattered not whether those homes were informal settlements, dilapidated houses or shanties, they were to be protected. 21. The 1st Respondent violated the Petitioners' rights to adequate housing from the manner in which it intended to carry out the eviction of the Petitioners from the suit premises. The evictions were to be carried out without a proper plan at time and the Petitioners in the end were to be left homeless and vulnerable. Additionally, they were not involved in the decision-making process because the notices they were issued with did not detail the justification for the eviction and if anything, those notices were not issued to the Petitioners in person but were pinned on trees in the Estate. Further, the 1st Respondent purported to carry out the demolitions in the wee hours of the morning and in total contravention of the CESCR UN Guidelines; and the demolitions were also carried out in the middle of the school term. 22. It did not matter that the Petitioners did not hold title to the suit premises. Even if they had been occupying shanties, the 1st Respondent was duty bound to respect their right to adequate housing as well as their right to dignity. Wherever and whenever evictions occurred, they are extremely traumatic. They caused physical, psychological and emotional distress and they entailed losses of means of economic sustenance and increased impoverishment. Therefore, the eviction of the Petitioners from the suit premises without a plan for their resettlement would increase levels of homelessness. The Court was required to strive to uphold the rights of the Petitioners, especially the right to be treated with dignity. Therefore, there was a clear violation of the Petitioners’ rights to adequate housing by the Respondents, as forced evictions were carried out in a reckless manner and without following the UN Guidelines on forced evictions at the very minimum. 23. Article 43(1)(d) of the Constitution provided that every person had the right to clean and safe water in adequate quantities. Additionally, article 56(e) obliged the State to put in place affirmative action programmes designed to ensure that minorities and marginalised groups had reasonable access to water, among other social services. The mere recognition of a human right to water in the Constitution was not enough to ameliorate the plight of those without access to water. The Court had a special responsibility to develop, and comprehensively so, the meaning of all the rights in the Bill of Rights, especially social-economic rights such as the right of access to clean and safe water. Therefore, it was important to elaborate on the normative content of the right to water so as to help the State realize its constitutional obligations. 24. The normative content of the right to water was set out in the CESCR UN General Comment 15; that the substantive contents of the right to water included availability, accessibility and quality. The Comment also stipulated that the right to water entitled everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. Supply of water in Kenya was governed by the provisions of the Water Act of 2002. Section 53(2) of that Act stipulated that water services should only be provided by a water service provider. A water service provider had been defined as a company, a non-governmental organization or other person providing water services under and in accordance with an agreement with a licensee (the Water Services Board). 25. Under Section 57(5)(d) of the Water Act, all Kenyan municipalities were obliged to manage and operate water services on business and corporate lines and were to embrace the full cost of recovery in the provision of water services. The Nairobi Water and Sewage Company fell under that category and it was supposed to operate the provisions of water as a business and to make profits. The water supply system demanded for payment of a fee to access water. The Petitioners could not fail to pay for that supply and be heard to complain about their denial of water, when somehow they had accepted for the years that they had been tenants and that it was their contractual obligation to pay for consumption of water. It was however time that water suppliers and the State adopted a rights - based approach with regard to the provision of water services. Further, the Water Act, 2002 did not expressly provide for the right to water and hence needed to be amended and bring it into conformity with the present realities, which included the devolution of services including the provision of water by the County Government. 26. Children were among the most vulnerable of the vulnerable members of the society alongside the elderly. They were harmless and they did not even know how to defend themselves in case of attack or violation, hence the State had an obligation to protect children. Articles 53 of the Constitution provided for their rights as such. In the event of an imminent forced eviction, children would be among the most affected as was the case before court. They may have to live with the trauma for many years or if violated they might never be able to overcome the said trauma. 27. The United Nations Office of the High Commissioner for Human Rights had observed at paragraph 10 of General Comment No.7 that; with regard to forced evictions, children, among other vulnerable individuals and groups, suffered disproportionately from the practice of forced eviction. Evicting the Petitioners in the middle of a school term affected the Petitioners' children's right to education as the same would be disrupted unnecessarily. Additionally, the CESCR UN General Comment 7 provided that forced evictions were not supposed to take place in the middle of school terms. The Petitioners’ children’s rights had thus been violated. [Obiter] 28. “I must lament the widespread forced evictions that are occurring in the county coupled with a lack of adequate warning and compensation which are justified mainly by public demands for infrastructural developments such as road bypasses, power lines, airport expansion and other demands. Unfortunately there is an obvious lack of appropriate legislation to provide guidelines on these notorious evictions. I believe time is now ripe for the development of eviction laws. 29. I strongly urge Parliament to consider enacting a legislation that would permit the extent to which evictions maybe carried out. The legislation would also entail a comprehensive approach that would address the issue of forced evictions, security of tenure, legalization of informal settlements and slum upgrading. This, in my view, should be done in close consultation with various interested stakeholders in recognition of the principle of public participation as envisaged in articles 9 and 10 of the Constitution. 30. As regards the realization of the right to adequate housing, the 3rd Respondent (the Attorney General) must move with speed and establish policies and guidelines to ensure that this right is progressively realized. He should spearhead the development of a comprehensive housing programme that is within the available resources. I believe this would be crucial in enabling the State to meet and fulfill its obligations to ensure that adequate housing is accessible to all regardless of their economic status in the society. Three years after the promulgation of the Constitution, the right to adequate housing cannot be aspirational and merely speculative. It is a right which has crystallized and which the State must endeavour to realize. It is time Wanjiku had a decent roof over her head.” Petition partly allowed; Government directed towards an appropriate legal framework for eviction based on internationally acceptable guidelines.
Cases: East Africa;
Sudan;
Minnesota;
South Africa;
India;
Nigeria;
United States of America;
Statutes: East Africa;
South Africa;
India;
United States of America;
International Instruments & Covenants:
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| Case Outcome: | Petition Partly Allowed |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.65 OF 2010
BETWEEN
SATROSE AYUMA.........................................................1ST PETITIONER
JOSEPH SHIKANGA.....................................................2ND PETITIONER
JOSEPH GITONGA........................................................3RD PETITIONER
BETH WAITHIRA............................................................4TH PETITIONER
LYDIA MUTHONI............................................................5TH PETITIONER
LAMECK MWAMBE......................................................6TH PETITIONER
JOSEPH OTIENO...........................................................7TH PETITIONER
WILSON GITHINJI.........................................................8TH PETITIONER
JOHN OCHIENG.............................................................9TH PETITIONER
EUNICE OPIYO.............................................................10TH PETITIONER
YASH PAL GHAI..........................................................11TH PETITIONER
PRISCILLA NYOKABI.................................................12TH PETITIONER
(Suing on their own behalf and on behalf of Muthurwa Residents)
AND
THE REGISTERED TRUSTEES OF THE KENYA RAILWAYS STAFF
RETIREMENT BENEFITS SCHEME...........................1ST RESPONDENT
THE KENYA RAILWAYS CORPORATION...............2ND RESPONDENT
HON. ATTORNEY GENERAL.....................................3RD RESPONDENT
AND
MILOON KOTHARI..................................................INTERESTED PARTY
JUDGMENT
Introduction
The Petition
“a) A Declaration that the 1st to 10th Petitioners, the persons they represent and their families are entitled to the rights set out at paragraph 12 of this Petition.
b) A Declaration that the actions and omissions of the Respondents violate the fundamental rights and freedoms of the 1st to 10th Petitioners, the persons they represent and their families set out in paragraph 12.
c) An Injunction restraining the Respondents, their servants,agents or others acting on their behalf or instructions from demolishing houses, terminating leases or tenancies, transferring or alienating the suit premises or in any other manner evicting the Petitioners and the persons they represent from the suit premises.
d) An Order compelling the Respondents jointly and severally to reconnect sewage systems, water supply and toilet facilities to the suit premises.
e) An Order compelling the Respondents to avail all information relating to the suit premises including but not limited to the following; resolutions of all the organs of the 1st Respondent that authorised the demolition, alienation of the suit premises, sale and eviction of the Petitioners.
f) Without Prejudice to the foregoing, and in the alternative, a declaration that in the event of an eviction and prior to such eviction the Respondent shall ensure and provide that:
The Petitioners' Case
11th Petitioner's Submissions
1st Respondent's Submissions
2nd Respondent's Submissions
3rd Respondent's Submissions
Interested Party's Submissions
Determination
Whether the 1st Respondent owes the Petitioners any guarantee of fundamental human rights and freedoms
“any authority, board, commission, committee or other body, whether paid or unpaid, which is invested with or is performing, whether permanently or temporarily, functions of a public nature”.
“the rights and fundamental freedoms in the Bill of Rights;
(a) belong to each individual and are not granted by the state;
(b) …
(c) are subject to the limitations contemplated in this Constitution”
Further, Article 20(1) provides that “the Bill of Rights applies to all law and binds all state organs and all persons”. The definition of a State Organ is found at Article 260 which states that, a State Organ is; “a commission, office, agency or other body established under this Constitution” and “person” includes “a company, association or other body of persons whether incorporated or unincorporated”. Article 21(1) of the Constitution also provides that;
“It is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.”
56. In this regard, the obligations of the State and its Organs are clear cut it must “observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights” The very raison d'etre of the State is the welfare of the people and the protection of the people's rights and it is its obligation, under international and national laws, to ensure that human rights are observed, respected, and fulfilled, not only by itself but also by other actors in the country. For this purpose, it can and should regulate the conduct of non-state actors to ensure that they fulfill their obligations; as is the case herein with the 1st and 2nd Respondents.
57. Even if an argument could be sustained that the 1st and 2nd Respondents are not established under the Constitution, as stated elsewhere above, they are established under statute and as I have already found them to be public bodies established to provide services of a public nature, they are bound as much as State Organs are to the same Constitutional obligations. The 1st Respondent which is a fully owned state body, which in turn is subject to the direction of the Minister of Transport, a State Officer, is certainly a Government agency.
58. I am also aware that under the provisions of Article 20(3) as read with Article 259 of the Constitution, this Court is obligated to develop the law to the extent that it gives effect to a right or fundamental freedom; and it must adopt an interpretation that favours the enforcement of a right or fundamental freedom, in order to promote the spirit and objects of the Bill of Rights.Clearly, to interpret the Constitution in a manner to even suggest that the 1st and 2nd Respondents do not have an obligation to promote and protect the Petitioners' rights and freedoms does not only fly right out of the window, but would also defeat the very essence and spirit of Article 20(3). It is thus clear to my mind that it would not have been the intention of the drafters of the Constitution and the Kenyan people who overwhelmingly passed the Constitution that the Bill of Rights would only bind State Organs. A purposive interpretation as can be seen above would imply that the Bill of Rights binds all State Organs and all persons, whether they are public bodies or juristic persons.
59. It also seems clear to me therefore that from a wide definition of the term “person” as contained in Article 260, the intention of the framers of the Constitution was to have both a vertical and a horizontal application of the Bill of Rights. I therefore find that the Petitioners are entitled to file a claim under Article 22 before this Court alleging a violation of the Petitioners rights by any of the Respondents, and the Court can properly grant an appropriate relief as envisaged by Article 23 of the Constitution. I hope this settles the issue once and for all in as far as the views of this Court are concerned.
60. However, before getting to the remedies available I am called upon to balance the competing interests between the Petitioners and the 1st Respondent over the suit premises. It is only after this has been done that I may proceed to examine any alleged violation of Constitutional rights.
Balancing the interests of the 1st Respondent and the Petitioners over the suit premises.
61. The 1st Respondent has claimed that it has the right to property over the suit premises as provided by Article 40 of the Constitution. I will revert to this argument shortly but at this point, I must deal with the issue raised by the Petitioners that the intended developments on the suit premises are illegal as the 1st Respondent has not obtained the Consent of the Commissioner of Lands in changing the conditions contained in the certificate of title comprised in Grant No.I.R. 20869, which stipulates that the land may be used for residential purposes only, and that it shall not be subdivided or transferred in any part. I have seen the Certificate of Title produced in evidence in this matter and it is indeed true that the certificate of title in respect of the suit premises contains those special conditions as stated by the Petitioners.
62. The 1st Respondent has however indicated that it has applied for the relevant consent from the Commissioner of Lands to enable it comply with the special conditions contained in the Grant. It has also claimed that the said consent ought not to be refused as part of the suit premises has already been sold and transferred to the City Council of Nairobi which constructed the now famous Muthurwa Hawkers market and matatu terminus. With these facts in mind, I am reluctant to get into the issue of the consent of the Commissioner of Lands for obvious reasons.This Court cannot direct, supervise or control other bodies or persons, on the manner or mode in which they perform their functions. The Commissioner of Lands was an independent office, charged with the performance of peculiar duties with powers being derived from the enabling statute. At the very least, he is answerable to the authorities established under the relevant Statutes. This Court is definitely not one of those authorities and this Court only intervene if he had acted arbitrarily, in gross violation of he Constitution or in a blatant violation of the Bill of Rights. That is not the case here because indeed he had power to change the user of land at his discretion. I will say no more.
63. Turning to the issue of the right to own the suit premises as claimed by the 1st Respondent, Article 40 of the Constitution provides as follows;
“Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-
(a) of any description; and
(b) in any part of Kenya”
It is undisputed that the Petitioners do not hold any title over the suit premises and they are but tenants of the 1st Respondent. That being the case, I do not see how the Petitioners may violate the 1st Respondents rights to the suit premises. They were and are tenants and with or without formal tenancy agreements they have lived on the suit premises for many years, while paying rent for the houses each of them occupies. It is on this understanding that the 1st Respondent chose to give them the eviction notices so as to enable them move out of its property and get alternativeaccommodation elsewhere. Accordingly, it is also clear to the Petitioners that the 1st Respondent owns the suit premises and that issue has not been contested by anyone.The issue therefore in my view and as framed above, should be whether the 1st Respondent is entitled to evict the Petitioners from the suit premises given their history on the suit premises as well as the relationship they have had with the 1st Respondent over the years. To answer that question, I must start by determining whether the facts as pleaded above have made out a case for violation of Constitutional rights.
Whether the Petitioners Constitutional rights and freedoms have been violated
Right to adequate housing
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood circumstances beyond his control”.
“(1) Every person has the right-
(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(b) to accessible and adequate housing and to reasonable standards of sanitation;
(c) to be free form hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.
(2) A person shall not be denied emergency medical treatment.
(3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants”
68. Having been so anchored in our Constitution, it follows that the right to housing has finally come of age in Kenya.The issue however, is how that right should be interpreted given the various competing interest whenever its violation is alleged but even then, I do not think the criteria to be adopted demands mathematical precision or scientific exactitude, in developing the interpretation to be accorded to the right to housing. Neither does it demand talismanic formalism in recognising the specific requirements that the right demands. In my view, it requires a sober, liberal, dynamic and broad approach that would require an examination of the normative components of the right to housing generally as well as the nature of the right to adequate housing specifically.
69. Having said so, I believe that the starting point would be a reference to the UN Committee on Economic, Social and Cultural Rights (CESCR) which has adopted two general Comments. I am convinced that these Comments are crucial in clarifying the interpretation of the right to adequate housing and the nature of the State Parties' obligations and I shall specifically focus on General Comment 4 on the right to adequate housing and General Comment 7 on forced evictions.
70. General Comment 4 has established that the right to adequate housing should not be interpreted narrowly, as a right to basic shelter or roof over one's head, but rather “as the right to live somewhere in security, peace and dignity”. This comment has also clarified that the right to adequate housing is internally linked to other human rights and I must therefore agree with Prof. Yash Pal Ghai's Submission that this right is linked to the inherent dignity of the human person and indeed, the right to dignity has become an interpretive principle to assist the further explication of the catalogue of rights and that all rights have come to be seen as best interpreted throughout the lens of right to dignity – See Dawood vs Minister for Home Affairs (2000) (supra).
71. My reading of General Comment 4 also reveals that the right to housing should be ensured to all persons irrespective of their income or access to economic resources. Under this General Comment, the CESCR has outlined seven key features to be considered when assessing whether housing is adequate or not and they are as follows;
(a) Legal security of tenure. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.
(b) Availability of services, materials, facilities and infrastructure; An adequate house must contain facilities for health, security, comfort and nutrition; All beneficiaries should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services.
(c) Affordability; Personal or household costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Steps should be taken by State Parties to ensure that the percentage of housing-related costs is, in general commensurate with income levels.
(e) Accessibility; Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Discernible governmental obligations need to be developed aiding to substantiate the right of all to a secure place to live in peace and dignity, including access to land and entitlement.
(f) Location; Adequate housing must be in a location which allows access to employment options, health care services, schools, child care centres and other social facilities.
(g) Cultural adequacy; The way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing.
“The right delineated in Section 26(1) is a right to 'access to adequate housing' as distinct from the right to adequate housing encapsulated in the Covenant. It recognises that housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be me [and] there must be land, there must be services, there must be a dwelling. Access to land for the purposes of housing is therefore included in the right of access to adequate housing in Section 26. A right of access to adequate housing also suggests that it is not only the state who is responsible for th provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing.”
Forced evictions
“the permanent removal against their will of individuals,families and or communities from the homes which they occupy without the provisions of, and access to, appropriate forms of legal or other protection.”
This term was later adopted by the African Commission on Human Rights which stated that although the right to housing or shelter is not explicitly provided for under the African Charter, housing rights are protected through the combination of provisions protecting the right to property, the right to enjoy the best attainable standard of mental and physical health and the protection accorded to the family.
77. In 1993, the UN Commission on Human Rights issued a resolution categorising forced evictions as a gross violation of human rights, and in particular the right to adequate housing.The Commission further observed that forced evictions invariably affect the poorest and most vulnerable sectors of the society. Perhaps it was on the basis of this recognition that the UN Committee on Economic,Social and Cultural Rights adopted General Comment No.7 on forced evictions as a follow up to General Comment No.4 on the right to adequate housing.
78. Paragraph 9 of General Comment No.7 underlines the fact that State Parties are obliged to use all appropriate means to protect the rights recognised in ICSECR and it recognises that forced evictions are prima facie violations of the right to adequate housing, and that States should be strictly prohibited in all cases, from intentionally making a person or community homeless following an eviction, whether forced or lawful. Paragraph 15 of General Comment No.7 also elaborates on appropriate procedural protection and due process to be put in place to ensure that human rights are not violated in connection with forced evictions.
79. Kenya, so far as I know, does not have a law governing evictions whether forced or otherwise. Consequently, I must look to international law and the jurisprudence emerging from other countries to discern the ideal situation with regard to the subject. Having said so, I must also say something about the submission made by the 1st Respondent that this Court cannot refer to International law in the context of this case. I find that submission misguided. I am aware of the Court of Appeal decision in Rono vs Rono C.A No.66 of 2002 (ur) and I do not think that the position that international law applies only in cases where it has been domesticated and incorporated is good law. I know that the Treaty Making and Ratification Act, 2012 was enacted to give effect to Article 2(6) of the Constitution but Article 2(5) on application of international law principles applies squarely to this case. I therefore deem it proper and good practice to seek guidance from international law where our laws are silent orinadequate on an issue such as the one before me.
80. In that regard, the UN Basic Principles and Guidelines on Development based Eviction and Displacement (2007) have provided some guidance to States on measures to adopt in order to ensure that development-based evictions, like the present one,are not undertaken in contravention of existing international human rights standards and violation of human rights. These guidelines provide measures to ensure that forced evictions do not generally taken place and in the event that they do, then they are undertaken with the need to protect the right to adequate housing for all those threatened with eviction, at all times.
81. The Guidelines inter-alia place an obligation on the State to ensure that evictions only occur in exceptional circumstances and that any eviction must be authorised by law; carried out in accordance with international human rights law; are undertaken solely for purposes of promoting the general welfare and that they ensure full and fair compensation and rehabilitation of those affected. The protection accorded by these procedural requirements applies to all vulnerable persons and affected groups irrespective of whether they hold title to the home and property under domestic law.
82. The Guidelines also articulate the steps that States should take prior to taking any decision to initiate an eviction; that the relevant authority should demonstrate that the eviction is unavoidable and is consistent with international human rights commitments; that any decision relating to evictions should be announced in writing in the local language to all individuals concerned sufficiently in advance stating the justification for the decision; that alternatives and where no alternatives exist, all measures taken and foreseen to minimize the adverse effect of evictions; that due eviction notice should allow and enable those subject to the eviction to take an inventory so as to assess the value of their properties that may be damaged during evictions and most importantly that evictions should not result in individuals being rendered homeless or vulnerable to other human rights violations. Finally, that there must be resettlement measures in place before evictions can be undertaken.
83. The Guidelines go further to lay down the conditions to be undertaken during evictions as follows; that there must be mandatory presence of Governmental officials or their representatives on site during eviction; that neutral observers should be allowed access to ensure compliance with international human rights principles; that evictions should not be carried out in a manner that violates the dignity and human rights to life and security of those affected; that evictions must not take place at night, in bad weather, during festivals or religious holidays, prior to elections, during or just prior to school exams and at all times the State must take measures to ensure that no one is subjected to indiscriminate attacks.
84. The UN Guidelines in addition provide what ought to happen after the eviction; that the person responsible must provide just compensation for any damage incurred during eviction and sufficient alternative accommodation and must do so immediately upon evictions. At the very minimum, the State must ensure that the evicted persons have access to essential food, water and sanitation, basic shelter, appropriate clothing, education for children and childcare facilitates.
85. These important guidelines have been adopted by the African Commission on Human and Peoples Rights and in its 48th Ordinary Session it adopted the Principles and guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and People's Rights. Accordingly, the African position on the right to housing can be understood from the African Commission on Human and Peoples' Rights case of The Social Economic Rights Centre & Centre for Economic and Social Rights vs Nigeria, Com. No.155/96 (2001). In the judgment, the Commission stated that;
“Individuals should not be evicted form their homes nor have their homes demolished by public or private parties without judicial oversight. Such protection should include providing for adequate procedural safeguards as well as a proper consideration by the Courts of whether the eviction or demolition is just and equitable in the light of all relevant circumstances. Among the factors a Court should consider before authorising forced evictions or demolitions is the impact on vulnerable and disadvantaged groups. A Court should be reluctant to grant an eviction or demolition order against relatively settled occupiers without proper consideration or the possibility of alternative accommodation being provided. Forced evictions and demolitions of people's homes should always be measures of last resort with all other reasonable alternatives being explored, including mediation between the affected community, the landowners and the relevant housing authorities”
I am wholly guided and with that in mind I must now return to the issue whether the Petitioners' right to adequate housing was violated.
“The longer the unlawful occupiers have been on the lands, the more established they are on their sites and in he neighbourhood, the more well settled their homes and the more integrated they are in terms of employment, schooling and enjoyment of social amenities. And as such the greater theirclaim to the protection of the Courts.”
It is also clear to my mind that taking all facts together, the right of the Petitioners to adequate housing were violated and it matters not that the 1st Respondent issued notices to all the tenants in the Estate and offered them an opportunity not to pay rent for two months and also carry iron sheets and bricks for their use. Where were the Petitioners supposed to get alternative accommodation in two months given the difficulties associated with getting accommodation in Nairobi? In the end, I think what matters is whether the initial eviction was carried out in accordance with the set UN guidelines and I think not. I have deliberately linked adequate housing and evictions because this judgment will focus on the latter.
“Depriving a tenant of water services amounts to constructive eviction, which under Section 83, 54 of the Florida Statutes, a tenant would be entitled to half in a suit to enjoin the landlord from taking possession by means other than the eviction proceedings required by Section 89.59(3)(a).”
I am in agreement and I am clear in my mind that the 1st Respondents' actions of demolishing the sanitary facilities, roofs, doors and fence were part of the eviction strategy. If forced evictions must not take place, surely, demolition of crucial facilities such as sanitation and security apparatus must also not take place.
“It became evident during the argument that the City had made no effort at all to engage with the occupiers at any time before proceedings for their eviction were brought.Yet the city must have been aware of the possibility, even the probability, that people would become homeless as a direct result of their eviction at its instance. In these circumstances, those involved in the management of the municipality ought at the very least to have engaged meaningfully with the occupiers both individually and collectively. Engagement is a two-way process in which the city and those about to become homeless would talk to each other meaningfully in order to achieve certain objectives.There is not a closed list of the objectives of engagement. Some of the objectives of engagement in the context of a city wishing to evict people who might be rendered homeless consequent upon the eviction would be to determine; (a) what the consequences of the eviction might be, (b) whether the city would help in alleviating those dire consequence, (c) whether it was possible to render the buildings concerned relatively safe and conducive to health for an interim period, (d) whether the city had any obligations to the occupiers in the prevailing circumstances and (e) when and how the city could or would fulfill these obligations. Engagement has the potential to contribute towards the resolution of disputes and to increased understanding and sympathetic care if both sides are willing to participate in the process ...”
I wholly agree with the learned judge.
Right to Water
“Article 11, paragraph 1, of the Convention specifies a number of rights emanating from, and indispensable for, the realisation of the right to an adequate standard of living, including adequate food, clothing and housing … The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival”
“We have no hesitation to hold that failure of the State to provide safe drinking water to citizens in adequate quantities would amount to a violation of the fundamental right to life enshrined in Article 21 of the Constitution of India and would be a violation of human rights. Therefore, every government, which has it priorities right, should give foremost importance to providing safe drinking water even at the cost of other development programmes. Nothing shall stand in its way whether it is lack of funds or other infrastructure. Ways and means have to be found out at all costs with utmost expediency.”
Violation of the Rights of Children's
“(1) If at anytime during the period of a child’s stay at a rehabilitation school the Director is satisfied that such child should not remain subject to the applicable committal order, he may refer the matter to the Children’s Court for revocation of the committal order.
(2) A Children’s Court may at any time, on its own motion or on the application of any person, revoke an order committing a child to a rehabilitation school, but before doing so it shall call for all the relevant records of the court which made the order,and all relevant records of any court which may previously have considered an application under this section.
(3) Notwithstanding anything in this Act, an order committing
a child to a rehabilitation school shall not remain in force beyond the date on which the child attains the age of eighteen years, nor shall any such order remain in force for longer than three years at a time except by order of the court.
(4) On an application for an order under subsection (2) or
subsection (3) the manager of the rehabilitation school where the child is, shall cause the child to be brought before the court,unless the court otherwise orders."
“women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction.”
The Petitioners aver that the eviction in this case took place in the middle of a school term. That would obviously affect the Petitioners' children's' right to education as the same would be disrupted unnecessarily. In fact under General Comment 7 above,forced evictions are not supposed to take place in the middle of school terms. I am satisfied that the Petitioners have also made out a case of violation of this right in the circumstances of their case.
Right to information, Protection from discrimination and rights of persons with disability and older members of the society
106. Turning to the violation of other rights as alleged by the Petitioners, that is; right to information, protection form discriminations, the right of persons with disability and rights of older members of the society, I do not think that the Petitioners have demonstrated the violations of these rights. There is no material before me that would lead to such a categorical finding. This being a Constitutional Petition, it is now a well settled principle that the Petitioners ought to demonstrate with some degree of precision, the right they allege has been violated, the manner it has been violated and the relief they seek for that violation – See Anarita Karimi Njeru vs Republic (1976- 80) 1 KLR 1272 AND Trusted Society of Human Rights Alliance vs Attorney General and Others Petition No.229 of 2012. This is important not just to allow the Respondents to know the case that they have to answer, but also to enable the court make a clear determination on the alleged violations. I shall say no more.
Appropriate Remedies
107. The Petitioner having made out a case for violation of their right to adequate housing and sanitation as well as right to human dignity and violation of the right to protection of the law for children, I must design the appropriate remedies to address those violations. I recall that the Petitioners urged me to take a broader view in determining the appropriate reliefs applicable in the case and I agree.
108. Before I do that, I must lament the widespread forced evictions that are occurring in the county coupled with a lack of adequate warning and compensation which are justified mainly by public demands for infrastructural developments such as road bypasses, power lines, airport expansion and other demands, Unfortunately there is an obvious lack of appropriate legislation to provide guidelines on these notorious evictions. I believe time is now ripe for the development of eviction laws and the same sentiments were also expressed by Musinga J. (as he then was) while considering the issues in this matter at an interlocutory stage, where he sated as follows;
“The problem of informal settlements in urban areas cannot be wished away, it is here with us. There is therefore need to address the issue of forced evictions and develop clear policy and legal guidelines relating thereto”.
The need to have those guidelines was also aptly captured by Yacoob J. in the Grootboom case (supra) where he stated that;
“the issues here remind us of the intolerable conditions under which many of our people are still living. The Respondents arebut a fraction of them.It is also a reminder that unless theplight of these communities is alleviated, people may be tempted to take the law in their own hands in order to escape these conditions. The case brings home the harsh reality that the Constitution's promise of dignity and equality for all remains for many a distant dream.People should not be impelled by intolerable living conditions to result to land invasions. Self-help of this kind cannot be tolerated, for the unavailability of Land suitable for housing development is a key fact in the fight against the country's housing shortage”
109. It is on this basis that it behoves upon me to direct the Government towards an appropriate legal framework for eviction based on internationally acceptable guidelines. These guidelines would tell those who are minded to carry out evictions what they must do in carrying out the evictions so as to observe the law and to do so in line with the internationally acceptable standards.To that end, I strongly urge Parliament to consider enacting a legislation that would permit the extent to which evictions maybe carried out. The legislation would also entail a comprehensive approach that would address the issue of forced evictions, security of tenure, legalization of informal settlements and slum upgrading. This, in my view, should be done in close consultation with various interested stakeholders in recognition of the principle of public participation as envisaged in Articles 9 and 10 of the Constitution.
110. As regards the realization of the right to adequate housing, the 3rd Respondent must move with speed and establish policies and guidelines to ensure that this right is progressively realised. He should spearhead the development of a comprehensive housing programme that is within the available resources. I believe this would be crucial in enabling the State to meet and fulfill its obligations to ensure that adequate housing is accessible to all regardless of their economic status in the society. Three years after the promulgation of the Constitution, the right to adequate housing cannot be aspirational and merely speculative. It is a right which has crystallized and which the State must endeavour to realise. It is time “Wanjiku” had a decent roof over her head and so I agree with he sentiments of Mumbi Ngugi, J. in Mitubell Welfare Society vs Attorney General and 2 Others Petition No.164 of 2011, where she stated thus;
“The argument that social economic rights cannot be claimed at this point, two years after the promulgation of the Constitution, also ignores the fact that no provision of the Constitution is intended to wait until the State feels it is ready to meet its constitutional obligations. Article 21 and 43 require that there should be 'progressive realization' of social economic rights, implying that the State must begin to take steps, and I might add be, seen to take steps, towards realization of these rights”
I agree wholly and will say nothing more.
111. In light of all the information available to me, especially on the nature of the housing crisis in this county, this case has clearly assumed an enormity of purposes beyond itself. In designing whatever remedies I shall grant the Petitioners I must take into account the fact that whereas I have found violations of rights articulated above, the following other issues are pertinent;
i) Muthurwa Estate and income derived therefrom is the lifeline of hundreds of KRC pensioners some of whom still have families residing in the estate. To grant all the orders sought in the Petition would therefore be counter-productive and may not achieve the ends of justice.
ii) The 1st to 10th Petitioners are tenants and Satrose Ayuma in her evidence had no strong objection to the change of user of the suit premises but desired a more humane progamme of eviction.
This judgment was therefore deliberately focused on forced evictions specifically.
I should close by stating that I did not see any evidence of wrongdoing on the part of the 2nd Respondent and it is obvious why. Its protestations in that regard must be upheld.
In the event, and noting all that I have stated above, the ordersthat attract my mind are the following;
a) It is hereby declared that the 1st Respondent violated the Petitioners' rights to accessible and adequate housing contrary to Article 43 of the Constitution but limited to the manner in which the forced evictions from Muthurwa Estate was conducted on or about 12th July 2010.
b) The 3rd Respondent is directed to consider amendments to the Water Services Act of 2002 to bring it in line with the expectations of Article 43(1)(d) of the Constitution 2010.
c) The 3rd Respondent shall within 90 days of this Judgment file an Affidavit in this Court detailing out existing or planned State Policies and Legal Framework on Forced Evictions and Demolitions in Kenya generally and whether they are in line with acceptable International standards.
d) The 3rd Respondent shall within 90 days of this Judgment file an Affidavit in this Court detailing out the measures the Government has put in place towards the realisation of the right to accessible and adequate housing and to reasonable sanitation in Kenya as is the expectation of Article 43(1)(b) of the Constitution.
e) Within 21 days of this Judgment, a meeting shall be convened by the Managing Trustee of the 1st Respondent together with the Petitioners, where a programme of eviction of the Petitioners shall be designed taking into account all the factors clearly outlined at paragraph 83 of this judgment;
i) that at the time of eviction, neutral observers should be allowed access to the suit premises to ensure compliance with international human rights principles.
ii) that there must be a mandatory presence of Governmental officials or representatives including Nairobi County officials and security officers.
iii) that there must be compliance with the right to human dignity, life and security of the evictees.
iv) That the evictions must not take at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and in fact preferably at the end of the school term or during school holidays.
v) that no one is subjected to indiscriminate attacks.
The agreed programme shall be filed in this court, in any event within 60 days of this judgment.
f) As to costs, clearly the issues raised in the Petition and the orders made above would show that there shall be no orders as to costs.
g) All other prayers in the Petition are not granted and are consequently dismissed.
i) Each party at liberty to apply.
112. I must sincerely thank all parties and their advocates for patience, decorum, depth and wealth of research and submission which have all gone a long way in enriching this judgment.
113. Orders accordingly.
SIGNED AT NAIROBI THIS 26TH DAY OF AUGUST, 2013
ISAAC LENAOLA
JUDGE
DATED, SIGNED AND DELIVERED ON BEHALF OF LENAOLA, J. ON THIS 30TH DAY OF AUGUST, 2013
MUMBI NGUGI
JUDGE
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