Four landmark court rulings in Kenya’s battle over forced eviction

Two groups of residents of Nairobi’s Kibera slum have gone to court to block the government from building a road through their homes, schools, churches, clinics and graveyards.

Evictions are common in Kenya, where millions of poor people squat on public land amid a shortage of legally sanctioned affordable housing.

Here are four landmark rulings from Kenyan courts, which are on the frontline of the battle over forced evictions.

$2 MILLION COMPENSATION AWARD

In 2011, the High Court ordered the government to restore more 1,100 residents living near Garissa in northern Kenya to their land, rebuild their homes and pay $2.2 million in compensation after the police and unidentified youth evicted them and destroyed 149 homes.

The community had been occupying public land since the 1940s but government officials said they needed it for a road and gave residents a verbal notice that they had 21 days to leave or be evicted with no alternative settlement.

“The eviction threw them into an open, hostile and shelter-less environment where there was no single basic necessity of life,” the judge ruled, adding that their rights to housing and to be treated with dignity and respect had been violated.

It is not clear whether the compensation was ever paid.

JUDGE’S LAMENT
In 2013, Kenya’s High Court ruled that the railway pension board had violated the rights of tenants renting its houses in Nairobi to adequate housing and sanitation, and human dignity and violated children’s rights to protection after it sent bulldozers to demolish hundreds of homes at dawn.

The board gave the tenants of Muthurwa Estate 90 days to vacate their homes so that it could build modern apartments and offices on the site.

“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,” judge Isaac Lenaola ruled.

“The right to adequate housing cannot be aspirational and merely speculative. It is a right which has crystallised and which the State must endeavour to realise,” he said, giving the Attorney-General 90 days to explain the government’s policies on forced evictions and demolitions and whether they are in line with international standards.

The court also gave the Attorney-General 90 days to explain what the steps the government was taking to realise the right to accessible and adequate housing in Kenya’s 2010 constitution.

In the absence of domestic law, it ordered the railway to follow international guidelines on evictions, such as respecting the evictees’ right to dignity and security and not carrying out evictions during the night or during school exam periods.  

FLIGHT PATH RISK
In 2013 the High Court directed the government to resettle 15,000 residents whose shanties near Nairobi’s Wilson Airport were demolished in 2011 because they were in the flight path, despite a court order restraining them.

Kenya Airports Authority put a notice in a newspaper giving them seven days to vacate the land before the police moved in with dogs to evict them.

“Any forceful eviction or demolition without a relocation option is illegal,” judge Mumbi Ngugi said, adding that those who carried out the demolition had disrespected both the court order and the squatters.

In its submission, Kenya Airports Authority said it would be wrong to violate the rights of property owners to realise squatters’ rights to housing, which could only be met when the government had sufficient funds to build more affordable homes.

The judge rejected this, saying the state had shown a “callous disregard” for the squatters as it was obliged to protect their homes while doing what it could to realise their right to housing.

“It robs them of their dignity, jeopardises their right to health, and threatens their right to life,” she said.

Ngugi gave the Attorney-General 60 days to file an affidavit on state policies on provision of housing to slum dwellers.

OVERTURNED

In 2016, the Court of Appeal overturned the ruling regarding shantytown residents living near Wilson Airport following an appeal by Kenya Airports Authority.

It found that Ngugi erred in issuing orders to the Attorney-General to present to court the state’s housing policies, which was not one of the petitioner’s pleas.

“Courts have no role to play in policy formulation,” the judgment said. “It is not the role or function of courts to re-engineer and redistribute private property rights.”

It also rejected her reference to comments by the United Nations Office of the High Commissioner for Human Rights on the U.N.’s eviction guidelines.

While Kenya’s constitution makes the general rules of international law part of Kenyan law, the court found that these comments did not qualify as such.

“Neither the U.N. nor any international organisation legislates for Kenya,” it said.

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