Right to Housing Vs. Right to Land

The Supreme Court of Kenya.
Image: FILE

The Right to Housing is guaranteed under Article 43 of the Constitution and its base need not be predicted upon the title to land. That was one of the issues the Supreme Court identified, in its ruling on the Mitubell Welfare Society appeal case, delivered as the celebrated former Chief Justice David Maraga exited office.

The Mitubell Welfare Society had filed a petition on behalf of its members and other residents of Mitumba village against Kenya Airports Authority and Commissioner of Lands.

At the time of filing the petition, which was prompted by a seven-day notice to vacate published in the newspapers sometime in 2011, the appellants were all residents of Mitumba village, situated on a plot near Wilson Airport, while their children attended Mitumba Primary School on the same location.

In the ruling, landless people who occupy public land to establish homes acquire a protectable right to housing but not right to the land occupied. This pronouncement is a win towards the realisation of the right to housing and to the Mitubell Welfare Society’s case.

Previously, Kenya had no legal framework governing eviction of people from public land. The Constitution is heralded as a great step towards protecting socioeconomic rights, including the right to adequate housing and access to land. The phenomenon of access rights precedented in this case ie, right to housing and so on, is one that has in practice appeared invisible hence the inhumane evictions witnessed over the years.

The Supreme Court ruled further that the right to housing over public land is crystallised by virtue of a period of occupation by people who have established homes and raised families on the land. Such evictees have right to petition court for protection, which may not necessarily be in the form of a restraining order, given that the eviction may be entirely justifiable in the public interest.

The Supreme Court ruled further that the right to housing over public land is crystallised by virtue of a period of occupation by people who have established homes and raised families on the land. Such evictees have right to petition court for protection, which may not necessarily be in the form of a restraining order, given that the eviction may be entirely justifiable in the public interest.

But under Article 23(3), it may give orders such as compensation, the requirement of adequate notice before eviction, humane conditions during eviction and provision of alternative land for settlement

In this particular case, the trial court had found that the eviction was unlawful and granted post-judgment supervisory orders on the procedures that could have been followed in evicting members of Mitubell Welfare Society. Parties were required to report to the court on the implementation of this court order.

The respondents were aggrieved by this ruling and appealed at the Court of Appeal who set it aside, asserting that a court does not have supervisory powers over its orders after delivery of judgment. The Mitubell Society termed the argument as failing to recognise supervisory orders an appropriate relief under the Constitution for strategic litigation cases.

It lodged a second appeal at the Supreme Court who withheld the Court of Appeal decision convinced that, where a court of law issues an order whose objective is to enforce a right or to redress the violation of such a right, the orders have to be carefully and judicially crafted.

It ruled interim reliefs, structural interdicts and supervisory orders issued by the courts have to be specific, appropriate, clear, effective, and directed at the parties to the suit or a state agency vested with a statutory mandate to enforce the order, and not non-state actors who are not parties to the suit.

A decision that raises the question of the place of stakeholder engagement in the manifestation of both power asymmetries between the governed and the governors as well as systemic exclusion of a majority of the urban Poor in delivery of state obligations bearing in mind that the manner in which decisions on various urban matters are made influences greatly the quality of lives of the urban poor.