KABARAK UNIVERSITY

SCHOOL OF LAW

GROUP 6
PROPERTY LAW

1. OUMA LEONARD LAW/MG/1573/09/19

OCHIENG
2. MERCY CHERONO LAW/MG/1988/09/19
3. CHELSEA ODHIAMBO LAW/MG/2616/09/19
4. GLORIA CHEPKEMBOI LAW/MG/1479/09/19
5. PASCALINE JEPKOECH LAW/MG/1661/09/19
6. OMANGA EZRA LAW/MG/2588/09/19
7. LUCY NDEGWA LAW/MG/2643/09/19
8. EGLA CHEPKEMOI LAW/MG/1469/09/19
9. CLAIRE KIMWENY LAW/MG/2115/09/19
10.WHITNEY OMARIBA LAW/MG/2347/09/19
11. CHEPCHIRCHIR LAW/M/1131/09/16
LAVENDA
Art 40 (4) of the Constitution was certainly a recognition that the State has contributed to the
problem of landlessness and squatters and that it has not done enough to remedy this dire
situation. In what ways did the Supreme Court through the Mitu-Bell case give real meaning
and purpose to this provision of the Constitution.

Article 260 of the Constitution defines property to include land. Article 40 of the Constitution
provides for the right to acquire and own property; protecting against arbitrary deprivation. The
origin of this case is the High Court from where it was appealed to the Court of Appeal and later
on to the Supreme Court. Mitu-Bell Welfare represented the people of Mitumba village, who
were considered squatters in the Land belonging to Kenya Airports Authority. The appellants
herein were given short notice of 7 days to evacuate the land in question, which was considered a
public land and therefore according to the Court of Appeal they had no right to compensation.
On appealing to The Supreme Court, one of the issues in question was as to when the right to
housing under article 43(1) (b) of the Constitution would accrue.

Forced evictions have been described as a gross violation of human rights. It has been defined by
the UN committee on Economic, Social and cultural rights as the permanent or temporary
removal, against their will, of individuals families and/ or communities from their homes. Under
International and African human rights law, everyone has the right to be protected against forced
eviction and eviction can only take place as a last resort after it is determined that all other
possible alternatives have been exhausted. International law further provides that, in cases where
an eviction is unavoidable the process must be done in a way that complies with UN Basic
Principles and Guidelines on Development-Based Eviction and Displacement 2007 since
forced eviction undermines the right to food, life, health, education and work.1

Prior to an eviction, the state should ensure that;

1. The relevant authority should demonstrate that the eviction is unavoidable and
consistent with International Human Rights commitments.

2. Any decision relating to evictions should be announced in writing, in local language to

all individuals concerned, sufficiently, in advance and giving justifications for the decision.

1
Briefing Paper, April 2007
 3. Alternatives are given and where none exist, all measures are taken to minimize the
effect of such evictions.

4. Due eviction notice should enable the subjects to take an inventory to assess the value
of their property that may be damaged during eviction.

5. Evictions should not result in individuals being rendered homeless or vulnerable to

other Human Rights violations.

6. There must be resettlement measures in place before evictions can be undertaken.

Use of excessive force has been associated with Kenya a number of times. The Mau Mau
eviction drew the concern of the international community following unlawful procedure. Houses
were torched, there was looting and people were maimed. There was no adequate notice as was
in the Mitu-bell case and there was no compensation.

The Mombasa-Mariakani Road project also resulted to the eviction of squatters along the
highway on the night of 17th May 2015. The squatters' efforts to salvage property was a futile
exercise. One of the squatters’ cries was that they were not opposed to road construction but they
were only asking for compensation, dignified eviction and adequate notice.

During an Eviction the State must ensure that;

1. There must be mandatory presence of government officials or their representatives on

site during the eviction.

2. Neutral observers should be allowed access to the site during eviction to ensure
compliance with International Human Rights principles.

3. Evictions should not be carried out in a way that violates the human dignity and
security of the affected.

4. The evictions must not take place at night, in bad weather or just prior to school
exams.

5. At all times the persons being evicted are protected from indiscriminate attacks.
After the eviction, the person responsible must provide just compensation for any damage
incurred during eviction, and sufficient alternative accommodation must be provided
immediately after eviction. Additionally, at the very minimum, the State must ensure that evicted
persons have access to essential food, water and sanitation, basic shelter, appropriate clothing
and education for the children. In the case of Satrose Ayuma v Registered Trustees of the Kenya
Railways Staff Retirement Benefits Scheme, the Petitioners were forcefully evicted from land in
which they were rent-paying tenants. In the eviction, the Respondent gravely violated the
procedural requirements of the UN Guidelines, and in so doing, violated a number of the
Petitioners’ constitutional rights including the right to human dignity, adequate housing, water
and sanitation and adequate food. The court found that the conduct of the Respondent in evicting
the Petitioners amounted to forceful eviction, which violated the said rights, and it therefore
granted the orders for due compensation as prayed for by the Petitioners

Realization of the right to housing in Kenya

The right to accessible and adequate housing, just like any other right under Article 43, requires
the State to take legislative, policy and other measures; including the setting of standards to
achieve the progressive realization of the rights as stipulated under Article 21(2).2

Article 21 (1) of the Constitution 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.

Progressive realization as was opined in the Matter of the Principle of Gender Representation in
the National Assembly and Senate refers to the gradual or phased-out attainment of a goal-a
human rights goal which by its very nature, cannot be achieved on its own, unless first, a certain
set of supportive measures are taken by the State. The exact shape of such measures will vary,
depending on the nature of the right in question, as well as the prevailing social, economic,
cultural and political environment. Such supportive measures may involve legislative, policy or
program initiatives including affirmative action.3

2
Article 21(2) of the Constitution of Kenya, 2010

3
In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR
Under Article 20, the Constitution empowers the Courts and tribunals to apply the provisions of
the Bill of Rights effectively by developing the law and adopting the interpretation that most
favors the enforcement of the right. Regarding the rights under Article 43 of the Constitution,
Article 20 (5) provides that:

“In applying any right under Article 43, if the State Claims that it does not have the resources to
implement the right, a Court, tribunal or other authority shall be guided by the following
principles?

(a) It is the responsibility of the State to show that the resources are not available

(b) In allocating resources, the State shall give priority to ensuring the widest possible enjoyment
of the right or fundamental freedom having regard to prevailing circumstances, including the
vulnerability of particular groups or individuals and

(c) The Court, tribunal or other authority may not interfere with a decision by a state organ
concerning the allocation of available resources, solely, on the basis that it would have reached a
different conclusion.4

The Mitu-bell Welfare Society decision in the Supreme Court was that the people were entitled
to the right of accessible and adequate housing and to reasonable standards of sanitation pursuant
to article 43(1) (b) of the Constitution of Kenya 2010 5. They also have a right to dignity. The
Supreme Court in its judgement stated that whereas an illegal occupation of private land cannot
create prescriptive rights over that land in favor of the occupants, the same could not have been
said of an ‘illegal occupation’ of public land. They were of the opinion that where the landless
occupy public land and establish homes thereon, they acquire not title to the land but a
protectable right to housing over the same. The 2010 Constitution declares that all land in Kenya
belongs to the people of Kenya collectively as a nation, communities and individuals. Therefore,
every individual as part of the collectivity of the Kenyan nation has interest however
indescribable, however unrecognizable, or however transient, in public land.6
4
Article 20 of the Constitution of Kenya, 2010

5
Article 43 Constitution of Kenya, 2010

6
Constitution of Kenya Article 61(1).
The Supreme Court further held that the right to housing over public land crystallizes by virtue
of a long period of occupation by people who have established homes and raised families on the
land. This right derives from the principle of equitable access to land under Article 60 (1) (a) of
the Constitution. Where there is a justifiable reason for eviction over public interest, such
evictees have a right to petition the Court for protection. The protection, need not necessarily be
in the form of an order restraining the State agency from evicting the occupants. Under Article
23 (3) of the Constitution, the Court may craft orders aimed at protecting that right, such as
compensation, the requirement of adequate notice before eviction, the observance of humane
conditions during eviction (U.N Guidelines), the provision of alternative land for settlement. 7

The Supreme Court was also of the opinion that;

The right to housing in its base form (shelter) need not be predicated upon “title to
land”. Indeed, it is the inability of many citizens to acquire private title to land, that
condemns them to the indignity of “informal settlement”. Where the Government fails to
provide accessible and adequate housing to all the people, the very least it must do, is to
protect the rights and dignity of those in the informal settlements. The Courts are there to
ensure that such protection is realized, otherwise these citizens, must forever, wander the
corners of their country, in the grim reality of “the wretched of the earth”.8

Having pointed out the Supreme Court’s analysis and provisions on the issue of landlessness and
squatters in Kenya, we conclude that the state has indeed not done enough to remedy the
situation. Many Kenyans actually settle on unoccupied land from where they establish their
livelihoods. Where these settlements sprout upon private land, the owners raise the reason of title
to evict those people, and where upon public land, the state is quick to raise the defence of public
interest to evict them without compensation and no alternative settlement.

7
Mitu -Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)
[2021] eKLR , para 152

8
Ibid, para 153