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Mitu-Bell case has restored much needed faith in the Judiciary

By Pauline Vata | January 26th 2021 at 12:48:19 GMT +0300

Hardly one month since the start of the New Year, approximately 2,000 families have been forcefully evicted from their homes in Kenya. 

About 1,000 families have suffered this in Blue Jay Diani, another hundreds in Kisumu and Nairobi. The pattern is similar; forced eviction in the middle of the night, an unmasked “private developer”, ignoring of court orders, total destruction of homes, schools, hospitals and places of worship.

Forced evictions are a human rights violation. Evictions not only disenfranchise people, but also take away their dignity. All this is happening in the middle of a global pandemic, with the government silently and “hopelessly” watching.

On January 11, as former Chief Justice David Maraga retired, an interesting development happened at the Supreme Court of Kenya. A judgment was delivered protecting the housing rights of the urban poor in the Mitu-Bell case.

The case was first filed in the High Court on September 21, 2011, by Mitu-Bell Welfare Society comprised of 3,065 households or approximately 15,325 men, women and children living in Mitumba village near Wilson Airport.

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The residents filed the case after they were forcefully evicted by Kenya Airports Authority, leaving them homeless. Due to Historical Land Injustices, the urban poor own no title to land, and therefore most court cases contesting their right to live in informal settlements are usually not in their favour.

The Supreme Court, in its judgment, acknowledged that as much as the urban poor living in informal settlements do not have title to the land, they have a protectable right to housing over the same.

The court also affirmed that the 2010 Constitution had radically transformed land tenure in this country by declaring 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 an interest, however indescribable, unrecognisable or transient, in public land. This affirms the position that in as much as public land is for public interest, the rights of the people living in settlements on public land must be protected.

The right to housing over public land crystallises 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).

By dint of this, court orders should not only focus on restraining the State from evictions given that sometimes due to public interest, evictions might be inevitable. But should such an eviction be inevitable, then evictees must be protected by courts through crafting orders aimed at protecting that right.

Based on the Supreme Court Judgement, any evictions in Kenya must now attain this basic minimum threshold. No eviction should lead to homelessness and loss of property. The right to housing should not be predicated to mean one must have title to the land in which the house occupies. Many citizens are not able to own private land and thus find themselves living in “informal settlements”.

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.  

Pauline Vata, Advocate of the High Court of Kenya

Judiciary Mitu-Bell Supreme Court
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