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How judge brokered truce in Muthurwa Estate row

COUNTIES
By - WAHOME THUKU | Sep 16th 2013 | 4 min read
A section of Muthurwa estate in Nairobi.  [PHOTO: FILE/STANDARD]

BY WAHOME THUKU

KENYA: Muthurwa Estate, on the outskirts of Nairobi’s Central Business District, has been the subject of dispute between close to 400 tenants and premises owners, the Kenya Railways Staff Retirement Benefit Scheme (KRSRBS) trustees. 

The land, now a prime part of the CBD, originally belonged to the East African Railways and Harbours Corporation and then its successor, the Kenya Railways Corporation (KRC). It hosts KRC staff houses and many other social amenities.

The property is managed by the trustees of the scheme set up in 2005/2006 for hundreds of the corporation’s pensioners.

On July 1, 2010, the trustees published notices requiring the residents to vacate the houses within 90-days. They then advertised the plots in the media for development of business premises and high-class apartments.

On July 12 the same year, demolition of toilets, houses, fences and other structures began in order to forcefully evict the residents out of the estate. Sanitary facilities including water supply were terminated.

On October 28, 2010, 12 people filed at the High Court in Nairobi claiming a violation of the right to accessible and adequate housing, right to access information held by the State, right not to be treated in a cruel, inhuman or degrading manner, right of every child to be protected from inhuman treatment, right of older members of the society to live in dignity and right of persons with disabilities to be treated with dignity and respect.

Socio-economic rights

One of those who filed the petition included prominent constitutional scholar Yash Pal Ghai. The other was an advocate Ms Priscilla Nyokabi, who is now the Nyeri County Women Representative. She was at that time the executive director of Kituo cha Sheria, an NGO.

The others were all residents of the estate who filed on behalf of 359 others. They sought various declarations to stop the scheme from evicting them and orders compelling them to restore sanitary services including water.

The petitioner’s case was that the respondents should provide them with socio-economic rights under Article 43 of the Constitution.

The scheme, through its Chief Executive Officer Caroline Nyororo, who was the Muthurwa Estate Manager, claimed its right to the land as a registered proprietor.

The scheme claimed it was not a public body and the orders sought by the petitioners were not appropriate as the issues revolved around private and not public law.

In a 75-page judgment, High Court judge Isaac Lenaola analysed in great details the Kenyan constitutional provisions on the issues, the international human rights principles and the UN Basic Principles and Guidelines on Development based Eviction and Displacement (2007) among a wide range of legal principles.

He analysed the relationship between the petitioner and the scheme and the history of such evictions in Kenya.

Eventually, Lenaola concluded that the trustees had to a certain limit violated the petitioners’ rights to accessible and adequate housing contrary to Article 43 of the Constitution. But, he argued that the violation was only limited to the manner in which the forced evictions from the estate were conducted on July 12, 2010.

“It does not matter that the petitioners do not hold title to the suit premises and 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 occur, they are extremely traumatic. They cause physical, psychological and emotional distress and they entail losses of means of economic sustenance and increase impoverishment.”

He added: “I find a clear violation of the petitioners’ rights to adequate housing by the respondents; as the forced evictions were carried out in a reckless manner and without following the UN guidelines on forced evictions.”

The judge, however, considered that Muthurwa Estate and its income was the lifeline of hundreds of KRC pensioners some still residing there.

“To grant all the orders sought in the petition would therefore be counter-productive and may not achieve the ends of justice,” he said.

90 days

He ordered the AG to file an affidavit in court within 90 days detailing the existing or planned State policies and legal framework on forced evictions and demolitions and whether they are in line with acceptable International standards.

Lenaola ordered that within 21- days of his judgment, a meeting be convened by the managing trustee of the scheme together with the petitioners where a programme of their eviction would be designed taking into account all the factors clearly outlined in the judgment.

And during the eviction, neutral observers should be allowed access to the suit premises to ensure compliance with international human rights principles.

He ordered that there must be a mandatory presence of Governmental officials or representatives including Nairobi County officials and security officers.

“The eviction has to be in compliance with the right to human dignity, life and security of the evictees, must not take place at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and preferably at the end of the school term or during school holidays. None must be subjected to indiscriminate attacks,” said the judge.

He also ruled that the agreed programme discussed at the meeting shall be filed in court within 60-days of the judgment.

All other prayers by the petitioners were rejected.

This means that the Muthurwa residents will eventually leave the land but only in accordance with the agreements and conditions set out by the court.

 

The writer is a court reporter with the Standard Group

Email: [email protected]

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