[2022] KEELC 584 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT GARISSA

PETITION NO. 6 OF 2021

IN THE MATTER OF: THE VIOLATION AND/OR THREATENED

VIOLATION OF ARTICLES 1,2,3,10,11,19,20,21,24,25,27,38,29,40,43,

47,48,53,73 AND 174 OF THE CONSTITUTION OF KENYA, 2010.

AND

IN THE MATTER OF THE VIOLATION OF THE COMMUNITY LAND ACT NO. 27 OF 2016

AND

IN THE MATTER OF THE VIOLATION OF THE FAIR ADMINISTRATIVE ACTION NO. 4 OF 2015

AND

IN THE MATTER OF INTENDED UNLAWFUL EVICTION OF THE RESIDENTS

OFNEBOI AND GARBAQOLEY AREAS IN MANDERA EAST SUB COUNTY

BETWEEN

ABDULLAHI MOHAMMUD FARAH...................................................................1ST PETITIONER

OSUBA OMAR FARAH............................................................................................2ND PETITIONER

MOHAMED DUBAWE ABDILE.............................................................................3RD PETITIONER

ABDULLAHI SHEIKH HUSSEIN...........................................................................4TH PETITIONER

(Suing on their own behalf and on behalf of all the Residents of Neboi

and Garbaqoley Areas in Mandera East Sub County)

VERSUS

THE COUNTY GOVERNMENT OF MANDERA.................................................1st RESPONDENT

THE INSPECTOR-GENERAL OF THE NATIONAL POLICE SERVICE......2ND RESPONDENT

JUDGMENT

1. The petitioners filed a petition dated 23rd July 2021 seeking the following Orders;

a. A declaration that the petitioner’s forced eviction by the 1st Respondent under the superintendence of the armed forces commanded by the 2nd Respondent is unlawful and illegal.

b. A declaration that the demolition of the petitioner’s houses and structures and their forced eviction by the 1st Respondent without provision of alternative land or accommodation is a violation of the fundamental rights to property, human dignity, security of persons, right of life, accessible and adequate housing, prohibition of forced evictions, reasonable standards of sanitation, healthcare services, to clean and safe water and freedom from hunger under Articles 20, 21,26,28,29,40 and 43 of the Constitution.

c. A declaration that the demolition of houses and structures and forced eviction without service of notice, hearing or information, and/or reasons regarding the threatened eviction is a violation of the fundamental right to information and fair administrative action under Article 35 and 47 of the Constitution Respectively.

d. A declaration that the demolition of the houses and forcefully evicting the petitioners and residents of Neboi and Garbaqoley areas without according the children and elderly persons alternative shelter is a violation of their fundamental rights under Article 21,53, and 57 of the Constitution.

e. A declaration that the action by the Respondent amounts to unlawful, illegal, and irregular compulsory acquisition of the Petitioner’s property in violation of Article 40 of the Constitution.

f. An Order of prohibition to prohibit the Respondents, their agents, employees, and/or any other person acting on the Respondent’s instructions from issuing illegal directives, demolishing the petitioners’ houses and structures, and/or forcefully and illegally evicting the petitioners from the suit land and/or unlawfully interfering or in any other way whatsoever meddling with the petitioners’ ownership, occupation and/or quiet enjoyment of the suit land.

g. Compensation for violation of fundamental rights and loss and/or damage of property.

h. Cost of the suit,

2. The petition was supported by the sworn affidavit of Abdullahi Mohamud Farah, the 1st Petitioner herein who averred that they are members of the Neboi and Garbaqoley communities comprising 338 families who have been inhabiting on an unregistered communal land in Central Division, Mandera East Sub County comprising about 2000 hectares (herein called suit land).

3. That sometime in September 2020 the 1st Respondents enforcement officers descended on the suit land with crude weapons, demolished structures, and informed residents that they ought to shift from the suit land failing which they would be forcefully evicted from their land to pave way for its development by the 1st Respondents. Residents who demanded justification were roughed up and threatened with arrest.

4. That by a letter dated 28th September 2020 the 1st Petitioner sought intervention from the County Commissioner, Mandera County. However, no action was taken by the County Commissioner. By a letter dated 16th October 2020 the Area chief pleaded for assistance in vain. He averred that on 27th May 2021 he sought assistance from Mandera County Assembly but the petition is yet to elicit any response.

5. That on 16th July 2021 the County Askaris ostensibly in furtherance of the aforesaid threat descended on the suit land with indiscriminate violence to the residents scattered livestock, destroyed crops and demolished some of the structures erected on the suit land prior to setting them ablaze.

6. That the armed forces commandeered the conquered area and remain in site to date. The county askaris have also been seen undertaking measurements to erect a perimeter wall enclosing the area previously occupied by the evictees.

7. That in Order to sanitize its nefarious actions, the 1st Respondent on 25th May 2021 moved Mandera Senior Resident Magistrate Court inMisc Application No. E001 of 2021, Exparte Mandera County Government obtained an Order for the securing and clearing land reserved for Mandera Bypass road and for providing security during construction of chain link fencing in parcels of land reserved for livestock market, Islamic University, Secular University and Kemri Centre.

8. That the 1st Respondent must have concealed to the subordinate court the fact that the land sought to be cleared and/or secured was in fact unregistered communal land which the community has inhabited for the last twenty (20) years.

9. That following the violent demolitions and forced evictions the evictees some of whom are senior citizens, women and children have been forced to erect temporary flimsy dwelling structures in random small empty spaces where they are living as squatters completely exposed to the elements of the weather and health risks.

10. The Respondent did not file any response to the petition. The petition was set down for hearing. The petitioner called one witness Abdullahi Maalim Farah. He restated the averments made in the supporting affidavit. He further testified that during the eviction they were arrested and taken to the Police Station. They were kept in Custody for long but thereafter released without being charged.

11. He further testified that no notice and/or eviction order was issued to them prior to the eviction, that they were also not issued with any alternative land and the evictees have only resolved to live under trees. He prayed that they be allowed to go back to their land.

12. At the Close of the Hearing, the Court directed the parties to file written submissions. At the time of writing this Judgement, only the petitioner has filed its written submissions. The petitioner submitted that they have locus standi bring the petition whilst the court has the requisite jurisdiction to handle the same citing the provisions Article 22 of the Constitution and Section 13 of the Environment and Land Court Act 2011respectively.

13. The petitioner further submitted that the demolition of the structures by the 1st Respondent gives the impression that the Respondent is above the law hence violating Article 10 of the Constitution as read with Article 73 (2). That the cruel manner in which the Respondents evicted the petitioners and other members of the community was in sharp contrast to their rights under Articles 25, 28 and 29 of the Constitution and equally limited the proprietary rights of the Petitioners under Article 40.

14. The petitioners opined in their submissions that the failure of the Respondent to inform them of the would-be eviction and subsequently issue them with a notice was in contrast to the provisions of Article 35 and 47 of the Constitution. That they ought to have sought a valid order of eviction prior to the aforesaid actions. In this regard, he cited the case of Moi Education Centre Co. Ltd vs William Musembi & 6 Others [2017] eklr & Teresia Irungu vs Jackton Ocharo & 2 Others [2013] eklr.

15. In their claim for prohibitory Orders the petitioners cited the case ofMituBell Welfare Society vs Kenya Ports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eklr. In their resolve for a claim for Punitive damages and general damages for unlawful eviction, the petitioners submitted a claim of general damages at Kshs. 1,500,000/= for each resident forcefully evicted and Kshs. 10,000,000/= as aggravated damages was reasonable compensation to the victims. They cited the following casesi.e. South C Fruit Shop Ltd vs Housing Finnace of Kenya [2013] eklr, Mureu vs Karuga [2004] eklr, Edward Akong’o Oyugi & 2 Others vs Attorney General [2019] eklr & Jamlick Muchangi Miano vs Attorney General [2017].

Analysis and Determination

16. I have considered the petition, the supporting affidavit, annexures, the testimony made by the 1st petitioner and the written submissions. The main issues for consideration are whether the petitioner’s rights were violated and whether they warrant the Orders sought.

17. The petitioners herein present the petition on behalf of the members of both the Neboi and Garbaqoley communities. They have attached an authority to present the petition sworn by 390 members of both communities. They, therefore, met the threshold under Article 22 of the Constitution.

18. This court’s jurisdiction is set out in Section 13 of the Environment and land court Act. The same provides as follows;

13. Jurisdiction of the Court

(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(7) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including?

(a) interim or permanent preservation orders including injunctions;

(b) prerogative orders;

(c) award of damages;

(d) compensation;

(e) specific performance;

(g) restitution;

(h) declaration; or

(i) costs

19. Looking at the petition the same particularized the grounds that have been infringed and the manner of infringement in part C and paragraphs 3. 0-3. 3. The same meets the threshold set out in Anarita Karimi Njeru v Republic [1979]eKLR which held as follows;

“….We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…..”

20. The petitioners claim to be residents of unregistered communal land in Central Division, Mandera East Sub-County comprising of about 2000 hectares. They allege to have been forcibly evicted from the aforesaid premises by the 2nd Respondent with Instructions from the 1st Respondent. the 1st Respondent is the County Government.

21. Section 6 of the Community Land Actprovides that the County Government is the trustee of all Community land within their respective counties. The same provides as follows;

(1) County governments shall hold in trust all unregistered community land on behalf of the communities for which it is held……………..

(8) A county government shall not sell, dispose, transfer, convert for private purposes or in any other way dispose of any unregistered community land that it is holding in trust on behalf of the communities for which it is held.

22. Section 6 (8) is very clear. The Respondent being granted the trusteeship of all Community Land does not grant it the authority to deal with the land. There is also an elaborate procedure under the Act to set apart the land; this includes an intricate procedure that involves public participation. In this case, there is no rebuttal from the Respondent to confirm whether public participation was done prior to the eviction.

23. I have also taken due consideration of the alleged Order that ostensibly gave the Respondents the authority to evict the petitioners. The Order only shows the 1st Respondent herein was the only party and the case was not directed against the Petitioners herein or any other party as Respondent(s). That in itself shows that the Order is defective. The petitioners herein were necessary parties to the said suit.

24. The petitioners have made averment regarding their eviction; the same is not opposed and/or controverted. The photos attached show that they live in a desolate place. The manner in which they were evicted was clearly in total disregard of the provisions of Article 10 (national values) as read with Article 27( freedom from discrimination), Article 40 (right to property), Article 43 (Economic and Social Rights) and Article 48 (Administrative action) of the Constitution; these rights were clearly infringed by the Respondents.

25. As to whether they are entitled to damages. The eviction, wanton destruction of their premises, detention of community members and the members of the community being left to live in a desolate place needs no further elaboration that they have suffered from the actions of the Respondents. The 1st petitioner attested to this and presented documents to that effect.

26. Whereas I do acknowledge that the members of both communities could not singularly present their claim for general damages it is in the same light that this court cannot singularly estimate the extent to damage occasioned to each individual. This is a proper case to issue a global award. In this case and taking into consideration all the factors related to the case and the number of members in each community, I hereby award a sum of Kenya Shillings Twenty (20) Million to the Neboi Community and a Sum of Kenya Shillings Twenty (20) Million to the Garbaqoley Community.

27. All said and done, I hereby enter final Judgment in the following terms;

a. A declaration be and is hereby issued that the petitioner’s forced eviction by the 1st Respondent under the superintendence of the armed forces commanded by the 2nd Respondent is unlawful and illegal.

b. A declaration is hereby issued that the demolition of the petitioner’s houses and structures and their forced eviction by the 1st Respondent without provision of alternative land or accommodation is a violation of the fundamental rights to property, human dignity, security of persons, right of life, accessible and adequate housing, prohibition of forced evictions, reasonable standards of sanitation, healthcare services, to clean and safe water and freedom from hunger under Articles 20, 21,26,28,29,40 and 43 of the Constitution.

c. A declaration be and is hereby issued that the demolition of houses and structures and forced eviction without service of notice, hearing or information, and/or reasons regarding the threatened eviction is a violation of the fundamental right to information and fair administrative action under Article 35 and 47 of the Constitution Respectively.

d. A declaration is hereby issued that the demolition of the houses and forcefully evicting the petitioners and residents of Neboi and Garbaqoley areas without according the children and elderly persons alternative shelter is a violation of their fundamental rights under Article 21,53, and 57 of the Constitution.

e. A declaration is hereby issued that the actions by the Respondent amounts to unlawful, illegal, and irregular compulsory acquisition of the Petitioner’s property in violation of Article 40 of the Constitution.

f. An Order of prohibition is hereby issued against the Respondents, their agents, employees, and/or any other person acting on the Respondent’s instructions from issuing illegal directives, demolishing the petitioners’ houses and structures, and/or forcefully and illegally evicting the petitioners from the suit land and/or unlawfully interfering or in any other way whatsoever meddling with the petitioners’ ownership, occupation and/or quiet enjoyment of the suit land.

g. Compensation for violation of fundamental rights and loss and/or damage of property assessed at a sum of Kenya Shillings Twenty (20) Million to the Neboi Community and a Sum of Kenya Shillings Twenty (20) Million to the Garbaqoley Community.

h. Cost of the suit.

READ, DELIVERED and SIGNED in the open court at Garissa this 25th March, 2022

.......................................

HON. E.C.CHERONO

ELC JUDGE

In the presence of:

1. Petitioners/Advocate: Absent

2. Respondents/Advocate: Absent

3. Ijabo: Court Assistant