The Negotiable Life of Stella Bell
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Gacheche J granted interim orders on 22 nd September The petitioners state that their household goods and building materials were all destroyed during the demolition, and they were left homeless. The petitioners allege violation of their fundamental rights and freedoms guaranteed under the constitution.
They contend that since the 2 nd respondent failed to give reasons in the notice requiring them to vacate, the demolitions were in total disregard of the law, particularly with regard to the right to adequate housing, and that it was also carried out in disregard of international prohibitions against forced evictions contained in Article 11 of the International Covenant on Economic, Social and Cultural Rights. The petitioners acknowledge that the 2 nd respondent is mandated to administer, control and manage aerodromes and any other property vested in it.
They allege, however, that the suit land does not belong to the 2 nd respondent, and if it did, its right to the land had been extinguished and the petitioners were entitled to the land by virtue of the doctrine of adverse possession as they had lived on the land for well over 19 years. They assert that contrary to claims by the 2 nd respondent, their village was not on the flight path, and that even if it was, the acts of the 2 nd respondent were discriminatory as there are other, multi-storied structures around the airport that were not demolished. The petitioners allege further that the 2 nd respondent did not consult with them before carrying out the demolition, and that it treated them in an inhumane and degrading manner.
They allege that they were subjected to brutality and physical violence by the police who evicted them, and that police dogs were released on them as they tried to re-construct their demolished structures. They therefore claim that their right to be treated with dignity guaranteed by Article 28 of the Constitution was violated; that it was unconstitutional for the respondents to evict such a large number of people from their dwellings where they have lived for many years and render them homeless, and that the government has an obligation to provide them with alternative housing, which it had failed to do.
The petitioners also allege violation of the rights of children guaranteed under the Constitution and international law. They claim that the forcible, violent and brutal eviction through demolition of their homes without according their children alternative shelter or accommodation and leaving them exposed to the vagaries of nature is a violation of the children rights to basic nutrition, shelter, health care, and education, among others, guaranteed by Article 21 3 and 53 of the Constitution.
The position taken by the 1 st and 3 rd respondents is that as the petitioners have failed to provide any evidence of their ownership of the suit land, they cannot claim violation of the right to property. Further, as the land belongs to the 2 nd respondent which is a state entity, the doctrine of adverse possession cannot apply. Consequently, they take the view that the 3 rd respondent has acted in accordance with the law by protecting the interests of property owners and not allocating to the petitioners what has already been allocated to another party.
They urged the court to dismiss the petition for non-disclosure of material facts and relied in this regard on the decision in Kenya Bus Services Limited —vs- Attorney General and Others Misc. Civil Application No. The 2 nd respondent also opposes the Amended Petition, but did not file any documents directly in answer to either the Petition or the Amended Petition. In its written submissions which appear to be erroneously dated 15 th March but were filed in court on 16 th March , the 2 nd respondent states that it relies on two affidavits.
Stephen Gichuki, on 9 th February While conceding that eviction of the petitioners and demolition of their houses did take place as alleged, the 2 nd respondent takes two approaches in its defence.
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It contends, however, and this is the gist of the affidavit by Eng. Stephen Gichuki, that it did not carry out the demolitions which it claims were carried out by state and security agents as the settlement posed a security threat due to the war in Somalia. Mr Mutua for the 2 nd respondent questioned the justiciability of social economic rights. He submitted that such rights are second and third generation rights which impose a duty on the state to do certain things to guarantee the protection of these rights. Therefore, even if these rights are justiciable, a balance has to be struck, and the court must strive to address the question of availability of funds from the executive for their enforcement.
The 2 nd respondent relied on the decision of the Supreme Court of India in Olga Tellis —vs- Bombay Municipal Corporation Supp SCR 51 where it was held that the respondent was justified in directing the removal of the petitioners who had encroached on pavements and footpaths.
It also relied on the case of Thiagray Soobramoney —vs- Minister of Health Kwa-Zulu Natal 1 SA and submitted that in that decision, the Constitutional Court of South Africa stated that one of the limiting factors to the attainment of the constitutional guarantee to social economic rights is that of limited resources. Mutua also referred the court to the decision of the Constitutional Court of South Africa in Irene Grootboom and Others v The Government of the Republic of South Africa and Others 1 SA 46 in which the court held that section 26 and 28 of the Constitution of South Africa do not entitle the petitioners to claim shelter or housing immediately upon demand.
Similarly, the petitioners were not entitled to claim social economic rights two years after the promulgation of the Constitution. The basic facts that gave rise to this petition are undisputed. The petitioner s were all resident in the informal settlement known as Mitumba Village, which was situated near Wilson Airport, Nairobi.
On 15 th September, , the 2 nd respondent issued a notice to residents of the village, among others who had allegedly encroached on its land, to vacate within 7 days. The notice was signed by the Managing Director of the 2 nd respondent.
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About one week after the notice, the petitioners filed this petition, and on 22 nd September , the court granted an order restraining the eviction of the petitioners or demolition of their houses pending inter partes hearing of their application. However, in total disregard of the court order, the evictions and demolitions were carried out on 19 th November and on at least one other occasion thereafter. The 2 nd respondent contends that it did not carry out the demolitions, that the eviction and demolitions were carried out by the executive.
Apart from the mention by the petitioners that police dogs were unleashed on them during the demolitions, thus suggesting police presence, there is no evidence that supports the involvement of any other state agency in the demolition. At any rate, the notice to vacate was issued by the 2 nd respondent, which claims ownership of the land. The 2 nd respondent is a state corporation. The 1 st and 2 nd respondents are therefore, in my view, responsible for the evictions and demolition of Mitumba village.
This court did find on 13 th June that the 2 nd respondent, as the party which had issued the notice to vacate and which alleged ownership of the land, was in contempt of the order of the court, a finding that is now the subject of an appeal. Nonetheless, it is worth observing that the Constitution vests, at Article , judicial authority in the judiciary.
It also vests in the High Court, under Article 3 b , the jurisdiction to determine whether a right or fundamental freedom has been denied, infringed, violated or threatened with violation. At Article 22, the Constitution grants to every person the right to approach the court claiming that a fundamental right or freedom in the Bill of Rights has been violated or is threatened with violation. Upon such an application, the court has jurisdiction, under Article 23 3 c , to grant a conservatory order.
This is what the court Gacheche J did when the petitioners first appeared before her on 21 st September Article 2 and 20 of the Constitution impose an obligation on all persons and all state organs to respect and abide by all the provisions of the Constitution. That the demolition took place at all in the face of a clear court order restraining the respondents is, even without more, a clear manifestation of disrespect not only for the constitutional authority of the court but also for the fundamental rights of the petitioners and the Constitution itself.
If the state and its organs can so blatantly disrespect and disregard the sovereign will of the people as contained in the Constitution, then one fears for the establishment and maintenance of the rule of law in this country. The state and its agencies have an obligation to abide by the provisions of the Constitution, which include respect for human rights and the judicial authority of the courts. There are no two ways about it.
The respondents have all contended that there has been no violation of the fundamental rights of the petitioners, and have made four main arguments in support of their position. The first is that the land in question does not belong to the petitioners but to the 2 nd respondent; that the 2 nd respondent was under an obligation, in performing its statutory duty under the Civil Aviation Act, to ensure air safety by removing the informal settlement which was on a flight path; that the demolitions was not carried out by the 2 nd respondent but by the state in order to remove the threat posed by the village given the ongoing war in Somalia; and that the petitioners are claiming social economic rights which are progressive and cannot be granted at once.
In determining this matter, and taking into account the respective arguments of the parties set out above, I believe I am called upon to address my mind to three main issues:. The petitioners allege violation of their right under Article 40, which provides as follows:. They maintain that the land belongs to the 2 nd respondent and could therefore not be allocated to the petitioners.
On their part, the petitioners claim that they were allocated the land, but in the alternative, since they have lived on the land for over 19 years, it vested in them by virtue of the doctrine of adverse possession.
This latter claim is easily disposed of in light of statutory provisions with regard to acquisition of title to land by way of adverse possession. Section 41 a i of the Limitation of Actions Act Cap 22 provides that:.
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The law that one cannot maintain a claim to government or public land by way of adverse possession is also well articulated in our jurisdiction. The 2 nd respondent is a state corporation established under section 3 1 of the Kenya Airports Authority Act, Chapter of the Laws of Kenya. It is not possible therefore for the petitioners to maintain a claim in adverse possession over its land in light of the above statutory provisions.
The petitioners have also laid a claim on the land on the basis that it was allocated to them in by the then Provincial Commissioner of Nairobi, Mr Fred Waiganjo. There is no document in support of the alleged allocation in but the petitioners have adduced in evidence letters which they wrote to the 3 rd respondent seeking allocation of the land to them.
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These include a letter dated 2 nd June , 18 th June , 28 th January , and 10 th February There is no response from the 3 rd respondent to these letters, and there is also no evidence that the land was ever allocated to the petitioners. In any event, under the law then in force as provided in the Government Lands Act, Cap of the Laws of Kenya now repealed , the Provincial Commissioner had no authority in law to allocate land. Title in the land, therefore, appears to be vested in the 2 nd respondent, although the petitioners aver, and documents before the court suggest, that there may have been allocation of this land to private individuals.
This issue is not, however, falling for determination in this matter nor is this the appropriate forum for dealing with any such alleged allocation.
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Consequently, I find that the petitioners have no legitimate claim to the land, and cannot therefore maintain a claim for violation of their right to property under Article 40 in respect of the land. The question, however, is whether, even if the land belongs to the 2 nd respondent and the petitioners had unlawfully encroached on it, the 2 nd respondent, or indeed any person or organ of state, was entitled to remove the petitioners in the manner in which they were removed.
The assumption therefore is that the only notice that the petitioners received was the one requiring them to vacate the land within 7 days from 15 th September Two questions arise in this regard.
Was it reasonable to give the petitioners only 7 days to vacate land on which they had been living for many years, which they knew as home? Upon their failure to vacate, was it permissible for the 2 nd respondent or any organ of state to violently evict them from the land and demolish their homes? I believe the answer to both these questions is in the negative. This country has yet to develop legislation and guidelines for eviction of persons occupying land which they are not legally entitled to occupy.