[2022] KEELC 568 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

IN GARISSA

ELC CASE NO. 67 OF 2017

AHMED BASHIR ABDI...............................................................................................PLAINTIFF

VERSUS

B.M. MULE, GARISSA COUNTY DIRECTOROF HOUSING THE

MINISTRY OF TRANSPORT,INFRASTRUCTURE HOUSING AND

URBAN DEVELOPMENT.................................................................................1ST DEFENDANT

GARISSA COUNTY COMMISSIONER........................................................2ND DEFENDANT

THE COUNTY GOVERNMENT OF GARISSA..........................................3RD DEFENDANT

ATTORNEY GENERAL..................................................................................4TH DEFENDANT

JUDGMENT

1. Ahmed Bashir Abdi (the plaintiff herein) instituted this suit vide plaint dated 22nd December 2017 and amended on 5th February 2018. He sought judgment against the 1st and 2nd Defendant jointly and severally for;

a. A declaration that public housing is a devolved function and that the 1st and 2nd Defendant have no authority in law to allocate or evict public servant from government housing.

b. An injunction restraining the defendants, their servants, workmen, and agents from entering on and/or from in any way interfering with the plaintiff’s use and quiet enjoyment of government house number MWD/GSA/7.

c. Special damages.

d. Damages for trespass and damage of property.

e. Interest thereon from the date of filing the suit until payment in full.

f. Cost of the suit.

g. Any other relief that the court may deem fit and just to grant.

2. The Plaintiff averred that he is the former County Director Human Resource Garissa County. He was granted possession of government House Number MWD/GSA/7 (herein also referred to as the suit property) in the year 2015 by the County Executive Committee in charge of lands and Housing, Garissa County (CEC lands and Housing) where he lived together with his family.

3. That on 16/11/2017, the 1st Defendant wrote to him notifying him to give vacant possession of the suit property within two (2) months from the said date failing to which he would be forcefully evicted. It was his averment that the actions of the 1st Defendant were illegal as they purported to make a demand without the sanction of the 3rd Defendant and without affording the plaintiff an opportunity to defend himself.

4. That even before the lapse of the notice, the 1st Defendant with assistance of the 2nd Defendant forcefully broke into the suit property and jettisoned his furniture and personal belongings.

5. That this is not the first time the 1st Defendant has attempted to evict the plaintiff from the said house. The first attempt was in the year 2015. The 1st Defendant was stopped by the 3rd Defendants County Executive Committee in charge of Housing.

6. The 1st and 2nd Defendant filed their statements of Defence on 21st February 2018 denying the averments made in the plaint. The 3RD Defendant similarly filed its defence on 21st May 2021 denying the averments made in the plaint and sought to have her name struck out from these proceedings contending that she was not a necessary party to the suit.

7. The matter was fixed for hearing on 25/10/2021. Pw1 Ahmed Bashir Abdi testified that he worked with the 3rd Defendant until on or about March 2017. During this time, he was allocated a house by the 3rd Defendant. On 16/11/2017 he received a notice to vacate the house within 2 Months. On 20/12/2017, he was with his family in Mombasa when he was informed that the 3rd Defendant had broken into his house and threw out his household goods. That at the time, he had not been served with any eviction Order. He sent his wife to try and salvage the loss.

8. In cross-examination, he told the court that the rent was deducted through the check-off system as shown in his pay-slips. That he only received one notice in 2016; the eviction was done in 2017. That in the year 2015, the 1st defendant had asked him for an authority of occupation which he gave in the same year. At the time he was working with the County Government. The attempt to evict him was forestalled by the County Government. He conceded that the County Government did not take part in his subsequent eviction in the year 2017.

9. Dw1 Boniface Muluku Mule the County Director for Housing, Garissa County under the State Department of Housing and Urban Development testified that the plaintiff was not allocated the house in question. That the house was allocated to Abdi Abdille who was working in the Ministry of Water. That the person who pays the rent is Abdille who has not surrendered the house.

10. In cross-examination, he told the court that he is not aware when Mr. Abdille vacated the house as he had not sought a clearance. That the procedure of occupation by the plaintiff was wrong. He further told the court that the plaintiff was not paying the rent. He however conceded to have issued a two-month notice to the plaintiff dated 16/11/2017 but moved to evict him prior to the lapse of the notice. It was his testimony that the plaintiff being an illegal occupant, it was not necessary to issue him the notice. He was not present during the eviction and could not ascertain whether the plaintiff’s goods were damaged.

11. In re-examination, he testified that the rent payable in the suit premises was Kshs. 4,000/=. That Abdille did not do the rent clearance of the house. That the purpose of the clearance is to inspect the house before the former occupant vacates and to stop deductions from the pay-slip. That it was Abdille who gave access to the plaintiff. That the plaintiff has never paid rent for the suit premise and that the house has rental arrears.

12. At the end of the hearing, parties were directed to file their written submissions in support of their positions. Both parties have filed their respective submissions. the plaintiff urged the court to look at the period of the plaintiff’s stay in the house i.e. 4 Years and the fact that the defendant served him with a notice. That the 1st Defendant by his own admission had confirmed to have evicted the plaintiff. The plaintiff further submitted that he suffered irreparable harm from the eviction leading to the loss of money, gold chains, and the kid’s toys. He urged the court to also issue costs of the suit and referred to the case of Jabir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 others [2014] eklr.

13. The Defence submitted that it was well within the mandate of the 1st Defendant to allocate the houses to whoever she considers suitable and meets the terms and conditions set out in the housing regulations. That in this case, the house was not allocated to the plaintiff procedurally as can be attested from the constant deduction of the rental income of the house from Abdille as opposed to the plaintiff. That the plaintiff was illegally in the house and that there was no need to issue an eviction notice. In this regard, he cited the case of Olga Tellis vs Bombay Municipal Corporation (1985) Supp SCR 51. He argued that the court ought to look at the conduct of the plaintiff and the fact that the defendant acted within the confines of the law. He urged the court to deny the Orders of injunction citing the case of Kenleb Cows Ltd vs New Gatitu Service Station Ltd & Anor (1990) eklr & Ochola Kamili Holding Limited v Guardian Bank Limited (2018) eklr.

Analysis and Determination

14. I have considered the evidence of the parties and the submissions filed therein. The issues that comment for determination are as follows;(i) Whether Housing is a devolved function? (ii) Whether due procedure was followed in the allocation of House No. MWD/GSA/7? (iii) Whether the plaintiff was validly evicted from House No. MWD/GSA/7? (iv) If the answer to (iii) is in the negative, whether the plaintiff is entitled to the prayers sought? (iv) Who shall bear the costs of the suit?

(i) Whether Housing is a devolved function

15. Article 43 of the Constitution provides for Economic and social rights

(1) Every person has the right—

(b) To accessible and adequate housing, and to reasonable standards of sanitation;

16. The Constitution at Article 174 provides for the Objects of Devolution. Article 174 (f) particularly provides;

(f) To promote social and economic development and the provision of proximate, easily accessible services throughout Kenya;

17. The fourth schedule provides for the distribution of functions between the national government and the county governments Part 1 Rule 20 grants the National government authority to implement the Housing policy. The Fourth Schedule provides for county planning and development including Housing. My understanding of these provisions is that the National Government is the policy framer while the County Government implements those policies.

18. Section 35 of the Transition to Devolved Government Act provided a moratorium on the transfer of public assets and liabilities during the transition period. Section 37 of the Transition to Devolved Government Act also provides that the Authority shall stand dissolved three years after the first general elections under the Constitution or upon the full transition to county governments, whichever is the earlier. Upon Dissolution, the Act lapsed.Legal Notice No, 45 of 2013 called for maintenance of the status quo until the mechanism of transfer and sharing of liabilities has been finalized through public participation. The transition authority did not amicably resolve the distinction between the national government and the county government with regard to housing.

19. Article 186 the Constitution sets out the respective functions and powers between the national and county governments. The said Article is tailored as follows:-

“186

(1) Except as otherwise provided by this Constitution, the functions and powers of the national government and the County Governments, respectively, are as set out in the Fourth Schedule.

(2) A function or power that is conferred on more than one level of government is a function or power within the concurrent jurisdiction of each of those levels of government.

(3) A function or power not assigned by this Constitution or national legislation to a county is a function or power of the national government.

(4) For greater certainty, Parliament may legislate for the Republic on any matter.”

20. In Josiah Onyango Okello t/a Cargo Secured Services v Migori County Government & another [2018] eKLR the court was faced with a similar scenario in relation to environmental protection and natural resources management the court held as follows;

“Therefore, the environmental protection and natural resources management function is what I can describe as a ‘limited shared function’. Limited in the sense that the County governments can only implement specific policies on behalf of the national government. To that end the county governments only acts as implementation arms of the national government policies, but the main function of managing the environment and natural resources is vested in and rests with the national government.

57. Implementation of policy is usually carried out by way of enacting of legislations, or formulation of rules and/or regulations. With that in mind, Kenyans enacted Article 186(4) of the Constitution thus ‘For greater certainty, Parliament may legislate for the Republic on any matter.’ Speaking for this particular matter, for the County Government of Migori to implement any of the policies which the national government may come up with in managing the environment and natural resources, it must be guided by specific legislation passed by either the Parliament (that is the National Assembly and/or the Senate) or the County Assembly of Migori or by any regulations or rules formulated in accordance with the law…….”

21. Section 134 of the County Government Act acknowledged the repeal of the local government Act. This would mean the taking up of mandates that was well within the previous regime. Devolving of Housing as an asset would be an intricate process that would involve public participation, valuation and taking of accounts. There is no policy framework or act that seeks to transfer assets that were largely under the auspices of the national government to the county government. What was transferred by the repeal of the local government act are assets that were within the custody of the local governments at the commencement date of the constitution.

22. Housing is a function at both levels of government. The national government is the policymaker whereas the County government is the implementer of such policy. The proper order that maintains is that the houses that fell within the local government ought to devolve to the county government whereas those that are under the ministry of housing ought to be held by the national government.

(ii) Whether due procedure was adhered in the allocation of House No. MWD/GSA/7

23. In this case, the plaintiff moved to the housing unit in stealth in the year 2015. At this time the same was within the transitionary period hence the same was still within the ambit of the national government and under the control of the Ministry of Housing. This is confirmed by the fact that the house was issued to a Mr. Abdi. A. Abdille who vacated the house on or about 30th June 2015. He handed over the house to the County Director of Water Services Garissa County Government.

24. There is no indication as to how the house later on passed to the plaintiff. The only evidence being presented is his appointment as a civil servant in the year 2017 and the remittances of rental payment from his payslip. This part of evidence is equally contradictory since the plaintiff also claims to have been issued the aforesaid house in the year 2015 commencing 1ST August 2015.

25. Due procedure was therefore not adhered to in allocation of House No. MWD/GSA/7 to the plaintiff.

(iii) Whether the plaintiff was validly evicted from House No. MWD/GSA/7?

26. It is worth noting that housing as an asset has not been fully devolved to counties. This is replicated in all counties within the country as this court takes judicial notice of the same. The reason for this stalemate is borne from the fact that housing as a function is shared between the two levels of Government. Houses under the civil service scheme in most counties within the Republic are still under the auspices/custody of the national government. National civil servants continue to be catered for through the Civil Servants Housing scheme fund. County governments have Civil servants catered for by county governments.

27. The conflict is alive in these proceedings. The plaintiff claims that the 1st and 2nd Defendant falling under the national government had no right to evict him as this function fell within the authority of the 3rd and 4th Defendant. The 1st and 2nd Defendant state that the person who would have validly evicted him is the county government.

28. Looking through the proceedings, it is clear to me that the 1st and 2nd Defendant were well aware of the occupation by the plaintiff in the suit property from the year 2015. In a letter dated 26th April 2016, they made a demand for rent arrears from the plaintiff for a sum of Kshs, 36,000/=. The plaintiff has stated that he had been in occupation of the house in dispute from the year 2015 to the year 2017 when he was evicted.

29. From the facts of the case, the fact that due procedure was not adhered by the plaintiff in acquiring the property the same shows that he was an intruder.

30. Was a notice to vacate therefore necessary? The 1st and 2nd Defendant knew of the plaintiff’s occupation in the suit property. Besides the written notice dated 16/11/2017, there is no other notice served upon the plaintiff prior to it. The letter dated 26/4/2016 only sought the remittances of rental payment from the plaintiff but never sought to evict him at this stage. There is evidence that payments of Kshs. 3,000/= was being remitted by the plaintiff through his pay-slip, a system which has been acknowledged by the 1st Defendant. As to whether the monies were remitted to the county as opposed to the national government is an issue that has not been expounded in this case. A vacation notice was therefore necessary in the circumstances.

31. The plaintiff was served with a notice dated 16/11/2017 seeking to evict him within two months of the said notice. The same presented a legitimate expectation that the plaintiff would move from the premises on or before 16/1/2018. During this intermittent period, the plaintiff would have either challenged the eviction or concede to it by shifting to new premises. The fact that the notice was served, the 1st and 2nd Defendant ought to have waited for it to crystallize before evicting the plaintiff before it matured. The 1st and 2nd Defendants’action of moving to the aforesaid premises and evicting the plaintiff on 20/11/2017 was in my view illegal, unlawful and un-procedural.

(iv) If the answer to (iii) is in the negative, whether the plaintiff is entitled to the prayers sought?

32. The plaintiff seeks a declaration that public housing is a devolved function, special damages, and damages for trespass and damage to property.

33. I have already come to a conclusion that housing is a shared function under the two tiers of Government, hence a declaration that the same is a devolved function cannot arise. At the time of filing this suit, the plaintiff had already been evicted hence Orders of permanent injunction cannot suffice.

34. On special damages, the plaintiff relied on the documents attached. However, he did not plead specifically to the same. The claim has not therefore been proved.

35. On general damages, the plaintiff’s testimony was clear that at the time of his eviction he was not present. The court has already made a finding that the eviction was not proper. The plaintiff is therefore entitled to general damages. I have considered the evidence and the nature of infringement and find that a sum of Kenya Shillings one Hundred Thousand (Kshs. 100,000/=)is reasonable as an award of general damages.

(iv) Who shall bear the costs of the suit?

36. Costs ordinarily follow the event. The plaintiff is entitled to costs of the suit. The 1st Defendant was acting on the instruction of the 2nd Defendant. The award for general damages and costs of the suit shall attract interest at court rates from today till payment in full.

37. It is So Ordered.

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. Mr. Abdinoor holding brief Kiamzi for the Plaintiff

2. Defendant/Advocate: absent

3. Ijabo: Court Assistant