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Ghosts of airport land evictions haunt state

By Kamau Muthoni | January 12th 2021 at 00:00:00 GMT +0300

The Supreme Court has ruled that where persons illegally occupy public land, they also acquire protectable rights to housing. [File]

The Government could face a hefty fine over the eviction of more than 15,000 residents, who had erected informal houses on a 404-acre land near Wilson Airport.

Its defiance of court orders, in which it demolished 3,065 shanties in 2011, and failure to provide a comprehensive plan of how it ought to resettle the squatters, might become a costly affair and open doors for other evictees to claim compensation over eviction. 

In a historic judgement that will guide how landowners kick out squatters from either Government or private land, the Supreme Court yesterday declared that where persons illegally occupy public land, they also acquire protectable rights to housing.

A five-judge bench led by former Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and justices Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u set aside a judgement by the Appeals Court in favour of Kenya Airports Authority (KAA).

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The bench referred the case back to the High Court for final orders after finding that the eviction was done in defiance of its orders.

According to the highest court in the land, the right to housing is attached to one of owning land but with a majority of Kenyans languishing in abject poverty, the dream to own land and have a title is a pipe dream.

The judges ruled that while people who occupy ‘empty’ spaces do not have a right to the land, the same cannot be said to be illegal occupation. And if they have lived in those spaces for a long time and raised their families, they have a right to be protected by the court.

“An illegal occupation of private land cannot create prescriptive rights over that land in favour of the occupants. We don’t think the same can be said of an ‘illegal occupation’ of public land. To the contrary, we are of the considered opinion that where the landless occupy public land and establish homes thereon, they acquire no title to the land but a protectable right to housing over the same.”

The case arose after KAA published a notice giving the squatters seven days to leave its land. The settlers moved to court and on September 22, 2011, Justice Jeanne Gacheche barred the authority from evicting them. But KAA went ahead and demolished Mitu-Bell and Mitumba villages on November 19.

In 2013, Justice Mumbi Ngugi directed KAA to engage the petitioners through their lobby, Pamoja Trust, and submit a report within 90 days. The judge ruled that she would make her final orders after seeing the report.

The agency and the Attorney General appealed. According to KAA, the appeal was also meant to address the tension between the right to housing as a socio-economic right and the right to private property.

Justices Erastus Githinji, Wanjiru Karanja and Otieno Odek ruled in the agency’s favour and set aside the judgement.

“The trial court erred in law and fact when it failed to properly evaluate the pleadings and evidence on record, and to take into account critical aspects of evidence relating to the flight path to Wilson Airport.

“The court failed to evaluate the security and safety of the flight path as compared to the structures in Mitumba village. The court also failed to evaluate the issue of unregulated garbage attracting birds along Wilson Airport’s flight path,” the judges ruled.

The bench was of the view that the court had no powers to supervise the Government because it’s mandate had expired after the judgement was issued.

Aggrieved, the squatters moved to the Supreme Court and argued that the eviction violated their rights and fundamental freedoms.

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