[2017] KEELC 1845 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CONST. PETITION NO. 10 OF 2016

IN THE MATTER OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF VIOLATION OF ARTICLES 43(1) (b) (c) AND (d) AND ARTICLE 28 OF THE CONSTITUTION OF KENYA RELATING TO DEMOLITION OF HOUSES BELONGING TO MEMBERS OF KITANDA NA MBUSYA ASSOCIATION IN L.R. 7815/1 ATHI RIVER

AND

IN THE MATTER OF ARTICLES 2(6), 19, 20, 21, 22, 23, 26, 29, 39, 40, 47 AND 48 OF THE CONSTITUTION

AND

IN THE MATTER OF ARTICLE 25 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR), ARTICLE 11 OF THE INTERNATIONAL COVENANT OF ECONOMIC, SOCIAL AND CULTURAL RIGHT (ICESCR), ARTICLE 17 OF THE INTERNATIONAL COVENANT OF POLITICAL AND CIVIL RIGHTS AND ARTICLE 18 OF THE AFRICAN CHAPTER OF HUMAN AND PEOPLE RIGHTS (ACHPR)

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOM) PRACTICE AND PROCEDURE RULES 2013, RULE 3, 4, 5, 9 AND 10

BETWEEN

PETER NJOGU MWANGI, DAVID MULI,

AND ASSUMPTA NGINA SUING AS CHAIRMAN,

SECRETARY AND TREASURER OF KITANDA NA

MBUSYA ASSOCIATION ON BEHALF OF 50 MEMBERS

WHOSE STRUCTURES WERE DEMOLISHED IN

L.R. NO. 7815 ATHI RIVER.............................................PETITIONERS

VERSUS

HON. ATTORNEY GENERAL OF KENYA....................1ST RESPONDENT

INSPECTOR GENERAL OF POLICE .........................2ND RESPONDENT

EAST AFRICAN PORTLAND CEMENT CO. LTD......3RD RESPONDENT

JUDGMENT

1. In their Petition dated 5th July, 2016, the Petitioners averred that they have a Society registered under the Societies Act; that the Petitioners comprises 5000 people but for the purposes of the Petition, it is only 500 members who have been affected and that the said members are occupants of L.R. No. 7815/1 Athi River.

2. According to the Petitioners, they applied to the former Commissioner of Lands to be allocated the suit land; that the Commissioner of Lands issued to the Petitioners’ officials a letter of allotment on 2nd June, 1999 and that the Petitioners paid for the outstanding Land Rates to the Machakos County Government.

3. According to the Petitioners, a contingent of police officers, accompanied by the officials of the 3rd Respondent, unlawfully entered the Petitioners’ premises and demolished the members houses, business premises and schools; that the Petitioners were never served with any court order authorizing demolition of the Petitioners’ homes and that the actions of the police in entering their land was a violation of human rights and an attack of their human dignity and a contravention of their social and economic rights enumerated under Articles 43 of the Constitution.

4. The Petitioners have further averred that the demolition of their members’ structures contravened: the UN Basic Principles and Guidelines on Developed Based Evictions and Displacements; Article 37 requiring that prior to an eviction, appropriate notice to affected persons of an impending eviction and right to public hearings be given; Articles 38 and 43 of the Constitution relating to exploring alternatives such as dialogue and consultation and Articles 45 to 51 of the Constitution relating to the conduct of the police during operations.

5. The Petitioners finally averred that the State has the constitutional obligation under Article 21 of the Constitution to observe, respect, protect, promote and fulfil the rights and fundamental freedoms set out in the Constitution, including the right to human dignity, the right to fair administration action, the right to life, the right to property and the right to economic and social rights.

6. The Petitioner has prayed for several declaratory orders, including an order that the Respondents jointly or severally do pay compensation to the Petitioners’ members for the loss of personal, real or other properties; an order that the Respondents to pay the Petitioners’ members general, aggravated exemplary and punitive damages as may be assessed by the court and the costs of the Petition.

7. Although the Respo0ndnets were served with the Petition, they neither entered appearance nor filed answers to the Petition.

8. The Petition proceeded for hearing by way of written submissions.

9. The Petitioners’ counsel submitted that the Petitioners are the proprietors of L.R. No. 7815/1, a fact which the Respondents have not denied.

10. Counsel submitted that Article 43 of the Constitution grants to the people social and economic rights which includes the right to health care services and accessible and adequate housing.

11. The Petitioners’ advocates further submitted that the UN Basic Principles and Guidelines on Development Based Evictions and Displacements provide for notices, interim measures to ameliorate the deprivations of the evictions and compensation.

12. Counsel submitted that the police did not comply with those basic principles neither were the Petitioners granted the right to hearing.

13. The Petitioners’ counsel finally submitted that the Petitioners’ members have been greatly traumatized by the illegal conduct of the police of invading their land parcel No. 7815/1 and demolished their houses.

14. Because of the large number of the traumatized people, counsel submitted that in addition to the grant of declarations and reliefs sought, the Petitioners’ members are entitled to an award of Kshs. 50,000,000.

15. It is not in dispute that the Petitioners are the registered proprietors of L.R. No. 7815/1 measuring 845. 82Ha.

16. According to the exhibited grant, the Petitioners were registered as the proprietors of the suit land on 24th May, 2000.

17. The Respondents have not disputed the assertion by the Petitioners that its members have been in possession of the suit land since the year 2003 and that they demolished their houses on 5th May, 2016.

18. The Respondents have also not denied that the demolition of the Petitioners’ houses was done without an order of the court, neither have they denied that they never served the Petitioners’ members with the notice of the intended demolition.

19. Consequently, and in view of the provision of Articles 40(1) and 43 of the Constitution which guarantees every person the right to property and the right to accessible and adequate housing respectively, the Respondents breached the Petitioners’ rights by demolishing their house without an order of the court and or a notice.

20. Having not defended the Petition, and in view of the copies of the photographs annexed on the Supporting Affidavit showing the demolished houses, I find that the declaratory orders sought in the Petition should be granted.

21. Although the Petitioners have prayed that its members should be compensated for the trauma they went through when their houses were demolished, evidence should have been tendered, either by the Petitioners’ members themselves or by an expert, to enable the court award each of the Petitioners’ members the appropriate damages.

22. An award of damages for the loss that the Petitioners’ members suffered when their houses were demolished can also not be granted for lack of evidence.

23. Indeed, what the Petitioners should have done was to engage a Valuer to value the extent of the damage that was occasioned by the Respondents to enable the court make an informed decision on the payable quantum and also to know the people who are entitled to the said compensation.

24. As it is now, it is not clear to this court how the damages that have been prayed for in the Petition are to be apportioned amongst the Petitioners’ members, if such an award is made.

25. The prayer for award of damages is therefore dismissed.

26. In the circumstances, the Petition dated 5th July, 2016 is allowed as follows:

a. A declaration be and is hereby issued that the violent and brutal demolition of the homes of the Petitioners without according them alternative shelter and or accommodation and leaving them to live in the open exposed to the elements and vagaries of nature is a violation of their fundamental rights to accessible and adequate housing, reasonable standards of sanitation, healthcare services, freedom from hunger and the right to clean and safe water in adequate quantities guaranteed by Article 43(1) read with Articles 20(5) and 21(1) (2) and (3) of the Constitution of Kenya 2010.

b. A declaration be and is hereby issued that the forcible violent and brutal demolition of homes of the Petitioners without any warning, or reasonable notice in writing or availing them information regarding the eviction and without according them alternative shelter and/or accommodation and leaving them to live in the open exposed to the elements and vagaries of nature is a violation of their fundamental rights to inherent human dignity and the security of the person guaranteed by Articles 28 and 29 (c), (d) and (f) of the Constitution of Kenya, 2010.

c. A declaration be and is hereby issued that the forcible violent and brutal demolition of homes of the Petitioners without warning, any or reasonable notice in writing of availing them information regarding the evictions is a violation of their fundamental right of access to information guaranteed by Article 35(1) of the Constitution of Kenya 2010.

d. A declaration be and is hereby issued that the forcible violent and brutal demolition of homes of the Petitioner and damage to their household goods in the process, and without according them an opportunity to salvage any of their belongings is a violation of their fundamental right to protection of property guaranteed by Articles 40(1) (3) and (4) as read with article 21(3) of the Constitution of Kenya.

e. A declaration be and is hereby issued that the violent and brutal demolition of homes of the Petitioners, any or reasonable notice in writing or availing them information and reasons regarding the demolitions and evictions is a violation of their fundamental right to fair administrative action guaranteed by Article 47 of the Constitution of Kenya 2010.

f. A declaration be and is hereby issued that the forcible violent and brutal demolition of homes of the Petitioners without according them alternative shelter and/or accommodation and leaving to live in the open exposed to the elements and vagaries of nature is a violation of their fundamental rights to physical and moral mental health, and the fundamental right to physical and moral health of the family under Articles 16 and 18 of the ACPR read with Article 2(6) of the Constitution of Kenya 2010.

g. A declaration be and is hereby issued that the forcible, violent and brutal demolition of homes of the Petitioners without according their children alternative shelter and/or accommodation and leaving the children to live in the open exposed to the elements and vagaries of nature is a violation of the fundamental rights of children to basic nutrition, shelter and healthcare and protection from abuse, neglect and all forms of violence and inhuman treatment and to basic education guaranteed by Articles 53(1), (b) (c) (d) and (2) read together with Article 21, (3) of the Constitution of Kenya 2010 and Article 28 of the ACPR read with Article 2(6) of the Constitution of Kenya 2010.

h. A declaration be and is hereby issued that the forcible, violent and brutal demolition of homes of the elderly persons among the Petitioners without according them alternative shelter and/or accommodation rendering them to live in the open exposed to the elements and vagaries of nature is a violation of the fundamental rights of the elderly persons to the pursuit or personal development, to live in dignity, respect and freedom from abuse and to receive reasonable care and assistance from the State guaranteed by Article 57(b), (c) and (d) as read with Article 21(3) of the Constitution of Kenya 2010.

i. The 3rd Respondent to pay the costs of the suit.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 22ND DAY OF SEPTEMBER, 2017.

O.A. ANGOTE

JUDGE