REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

PETITION NO. OF 2018

BETWEEN

MITU-BELL WELFARE SOCIETY ...............……………………….....…… PETITIONER

-VERSUS-

KENYA AIRPORTS AUTHORITY …………….………………..…..…. 1ST RESPOND-

ENT
THE HON. ATTORNEY GENERAL ………..……………………….. 2ND RESPONDENT
THE COMMISSIONER OF LANDS ………………………………….. 3RD RESPOND-
ENT

(Appeal from the Judgment of the Court of Appeal at Nairobi in Civil Appeal No. 218 of 2014 at
Nairobi (E.M. Githinji, W. Karanja & J. Otieno-Odek, JJ.A) dated and delivered on the 1st day of
July 2016)

PETITION OF APPEAL
(Pursuant to Article 163(4) (b) and Rule 33 of the Supreme Court Rules, 2012)

A. INTRODUCTION
The humble Petition of Mitu-Bell Welfare Society (the Petitioner) is as follows:-

B. PARTIES
1. The Petitioner, Mitu-Bell Welfare Society, is a society registered under the Societies
Act, Cap 108 of the Laws of Kenya and which filed a petition at the High Court
on behalf of its members; residents of a slum known as Mitumba Village.

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 2. The 1st Respondent is a body corporate that regulates the conduct of aviation and
in particular the management and the running of all airports within the Republic
of Kenya.

3. The 2nd Respondent is the principal legal advisor to the government pursuant to
Article 156(4) of the Constitution.

4. The 3rd Respondent is sued as the official in charge of allocation, alienation, pro-
cessing and issuance of land titles by the Governmet.

C. FACTS
5. Mitumba Village lies near Wilson Airport, Nairobi L.R. No. 209/13080 registered
in the name of the 1st Respondent. The portion occupied by the Petitioners had
been earmarked vide deed plans and issued with Plot number 209/12921 (file
number 226958) for Mitumba Primary School and Plot Number 209/12908 (file
number 176952) for the village respectively.

6. The Petitioners were resident at Belle-Vue village until 1992 when they were re-
located by the Government to occupy and reside on the 1st Respondent’s land
near Wilson Airport. The Petitioners’ relocation occurred because the 1st Re-
spondent wanted to put up structures at Belle-Vue.

7. Upon their relocation to the suit land, the Petitioners soon put up their dwell-
ings, schools and churches and established their businesses on the property; they
thereupon in vain sought indulgence of the 3rd respondent, the Commissioner of
Lands, to issue them title documents to the portions of 1st Respondent’s land that
they had occupied.

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 8. Nevertheless, since the relocation, both the government and the Respondents
were aware of the Petitioners’ occupation of the suit land. For instance, the chil-
dren from Mitumba Village attended Mitumba Primary School, a public school
situated on Plot Number 209/12921 (under file number 226958). The school was
allocated examination centre numbers by the Kenya National Examination
Council.

9. Thus, Mitumba Village became the Petitioners’ home and source of livelihood,
social life and education. At the time the Petition was filed at the High Court, Mi-
tumba Village was occupied by 3,065 households containing approximately
15,325 men, women and children.

10. On 15th September 2011, the Petitioners spotted notices published in the newspa-
pers by the 1st Respondent giving the Petitioners seven (7) days to vacate the suit
land which they had inhabited for over 19 years. The notice stated that upon ex-
piry of the notice period, any buildings, installations, or erections thereon shall
be demolished and/or removed and any human activities within the area would
be terminated without further reference.

11. On 22nd September 2011, the Petitioners obtained interim conservatory orders
from Gacheche J. restraining the 1st Respondent and any State officer or organ of
State from evicting or demolishing any buildings, installations or erection situate
or within the area better described as Mitumba village near Wilson Airport.

12. However, in total disregard of the court order, on 19th November 2011 and on at
least one other occasion, the 1st Respondent evicted the Petitioners and demol-
ished their houses, the primary school and other institutions in the village. Due
to the violent nature of the evictions, the Petitioners’ household goods and build-
ing materials were all destroyed, leaving the Petitioners homeless.

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 D. LITIGATION HISTORY
a) High Court
13. In a nutshell, before the High Court, the Petitioners sought a declaration that
their eviction had been in contempt of previous court orders not to evict them,
and also that the eviction and the manner in which it had been carried out violat-
ed their constitutional rights to housing, respect for human dignity as well as the
right to equality and non-discrimination.

14. On the issue of discrimination the Petitioners questioned the decision to leave
certain high-rise residential apartments, namely Midland Apartments, Parkview
Apartments, and Soledo Apartments, built on the alleged flight path intact while
demolishing the Petitioners’ temporary shacks made of mud and rusty iron
sheets.

15. As to notice, the Petitioners contended that since the 1st Respondent had failed to
give reasons in the notice requiring them to vacate, the demolitions were illegal,
particularly with regard to the right to adequate housing, and that it was also
carried out in disregard of international prohibitions against forced evictions
contained in Article 11 of the International Covenant on Economic, Social and
Cultural Rights.

16. As to the manner of eviction, the Petitioners asserted that they had been subject-
ed to brutality and physical violence by the police who evicted them, and that
police dogs were released on them as they tried to re-construct their demolished
structures.

17. Further, the Petitioners pleaded that the forcible, violent and brutal eviction
through demolition of their homes without according their children alternative

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 shelter or accommodation and leaving them exposed to the vagaries of nature
was a violation of the children’s rights to basic nutrition, shelter, health care, and
education, among others, guaranteed by Article 21(3) and 53 of the Constitution.

18. The Petitioners acknowledged the 1st Respondent’s mandate to administer, con-
trol and manage aerodromes and any other property vested in it. However they
asked the court to strike a balance between the mandate and the obligation to re-
spect constitutional rights.

19. As a result of the violations, the Petitioners sought the following orders:
a) A declaration that the demolition by the 2nd Respondent was illegal, irregular,
unprocedural and contrary to Articles 26, 27(2) (4) & (6), 28, 29, 39, 40, 43, 47 and
56 of the Constitution of the Republic of Kenya and is therefore null and void.
b) A declaration that any forceful eviction and/or demolition without a relocation
option is illegal, oppressive and violates the rights of the Petitioners.
c) An order restraining any purported demolition and/or forceful eviction by the
Kenya Airports Authority.
d) A declaration that the residents of Mitumba Village are legally entitled to plot
number 209/12921 and in the alternative they are entitled to compensation and
reallocation to another parcel of land or alternative shelter with access to educa-
tion facilities, clean water, health care and food at the state’s expense.
e) A declaration that the Petitioners herein are entitled to full protection from dis-
crimination and the same right has been violated and they are entitled to full
compensation as a result of loss suffered during and after the illegal demolition
of their structures.
f) A declaration that the Petitioners herein and other members of the public are en-
titled to the full enjoyment of the right to economic and social rights that are
about to be violated and or already violated.
g) Costs of the Petition.

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 20. On the other hand, while conceding that the Petitioners had been evicted and
their homes demolished, the 1st Respondent argued that it owned the land and
therefore could not have violated the Petitioners’ right to property under Article
40.

21. Additionally, the 1st Respondent argued that “economic and social rights were
subject to progressive realization and availability of resources, and the State
could not be expected to deliver on these rights immediately upon demand.”

22. To the contrary, the 2nd and 3rd Respondents’ case was that Petitioners had failed
to provide any evidence of their ownership of the suit land and they could not
claim violation of the right to property. Further, as the land belonged to the 1st
Respondent which was a state entity, the doctrine of adverse possession could
not apply.

23. The 2nd and 3rd Respondents further argued that the basis of the Petitioners’
claim was social economic rights, which are progressive in nature and are not ab-
solute; so that the enjoyment of these rights and freedoms by the Petitioners
could not prejudice the rights and freedoms of others.

24. The High Court framed the following issues for determination:
i) What rights, if any, do the Petitioners have over the
subject property?
ii) If the answer to i) above is in the negative, was their
eviction and the demolition of their houses a violation
of their Rights under the Constitution?
iii) If the answer to ii) above is in the positive, what relief
should the court grant to the petitioners?
iv) Rights over the Subject Property.

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 25. In a judgment dated 11th September 2013, the High Court (Mumbi Ngugi J.) al-
lowed the Petition. She declared that following the demolition of Mitumba vil-
lage, the 1st and 2nd Respondents had violated the Petitioner’s constitutional
rights.

26. The Court further held that the Respondents’ actions were all the more reprehen-
sible as the demolition was carried out while an order of the court restraining the
demolition of the Petitioners’ houses and other institutions in the village was still
in force. As a result, the State and the 1st Respondent were jointly and severally
liable for the violation of the Petitioner’s rights due to the demolition of the Peti-
tioner’s houses.

27. The Petitioner sets outs the High Court’s detailed findings below:

a. On the Petitioner’s rights, if any, over the subject property

28. The 1st Respondent was a state corporation established under Section 3(1) of the
Kenya Airports Authority Act, Cap 395 of the Laws of Kenya. It was not possible
for the Petitioners to maintain a claim in adverse possession over its land under
Section 41 of the Limitation of Actions Act, Cap 22. Also title in the land vested in
the 2nd Respondent. The Petitioners had no legitimate claim to the land, and
could not therefore maintain a claim for violation of their right to property under
Article 40 over the land.

b. Whether the evictions and demolitions violated the Petitioner’s constitutional rights
29. The country was yet to develop legislation and guidelines for eviction of persons
occupying land which they are not legally entitled to occupy; however as a
member of the international community and a signatory to various United Na-
tions treaties and conventions, the State was bound by the international guide-
lines on evictions.

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 30. The learned Judge held that when the State or a State agency demolishes the
homes of poor citizens who live in informal settlements, after a seven day notice,
without giving them alternative accommodation, the State not only violates the
rights of the Petitioner, but also the Constitution itself and the obligations im-
posed on the State, at Article 21 and 43, and also in the national values and prin-
ciples of governance in Article 10. The violation was exacerbated by the fact that
the eviction was carried out despite a court order.

31. Articles 21 and 43 require progressive realization of socio-economic rights, im-

plying that the State had to begin to take steps and be seen to take steps, towards
realization of these rights.

32. Article 43 of the Constitution imposes on the State a positive obligation to ensure
access by its citizens to social economic rights, and progressively and dependent
on the availability of resources.

33. However, under Article 21(1) of the Constitution it is a fundamental duty of the
State and every State organ to observe, respect, protect, promote and fulfill the
rights and fundamental freedoms in the Bill of Rights. There was an obligation
on the State to observe, respect, protect, promote and fulfill socio-economic
rights and in particular, the right to adequate and accessible housing. The duty to
respect implied that the state had a duty to refrain from interfering directly or
indirectly with the enjoyment of the right.

34. The State not only had a positive duty to fulfil the rights guaranteed under Arti-
cle 43 by taking positive steps to ensure access by citizens, but also a negative ob-
ligation not to do anything that impairs the enjoyment of these rights. Thus, the
right to housing is violated when evictions and demolitions are carried out, leav-
ing citizens homeless.

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 35. Deliberate action to deprive the Petitioners of housing in the face of the State’s
failure to meet its constitutional obligation to provide them with adequate hous-
ing, manifested a callous disregard for all the Petitioner’s rights: it left them
without a home, a means of livelihood; it robbed them of their dignity, jeopard-
ized their right to health, and threatened their right to life.

36. Even where eviction was necessary on considerations of national security, there
was need to follow due process: that those to be affected should be given notice
and that there had to be consultation and participation of those to be affected by
the removal process.

37. The principle of consultation and participation of the people is entrenched in the
Constitution in the national values and principles; Article 47 requires fair admin-
istrative action, which encompasses the notion of notice, consultation and a right
to be heard before adverse action is taken.

38. The United Nations Office of the High Commissioner for Human Rights guide-
lines, incorporated into Kenyan law by Article 2(5) and (6) of the Constitution,
provided a clear benchmark for states to follow in dealing with persons who, for
whatever reason, including considerations of security, had to be removed from
land that they had been living on.

39. The State had not only failed in its constitutional responsibility to respect the
rights of the Petitioners, but also failed to honour its obligation under interna-
tional law and the Constitution to only take action after due process involving
consultation and participation of the Petitioner.

40. Selective demolition of the Petitioner’s temporary shacks while leaving multi-
storied buildings which surrounded it intact demonstrated discrimination. This

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 was evident in the selective demolition of Mitumba village and it was a violation
of the right to non-discrimination and equal protection of the law guaranteed
under Article 27(1), (2) and (4) of the Constitution.

41. In addition, the Court held that children were the most vulnerable of the vulner-
able and marginalised groups and that the State has an obligation to protect them
in accordance with Articles 10, 53 and 54 on the protection of children and per-
sons with disabilities respectively, and Article 56 on protection of the marginal-
ised.

42. The State’s constitutional obligation to observe, respect, protect, promote and ful-
fil enjoyment of social-economic rights was particularly important with regard to
these groups, who, more often than not, are limited in their capacity to provide
for themselves. In the event of an eviction such as that that took place, it is these
groups which were most affected, and disproportionately so.

c. On appropriate reliefs
43. Under Article 23 of the Constitution, the Court held that it has the power to grant
various reliefs to parties coming before it, including declarations of rights, in-
junctions, conservatory orders, and compensation. In considering the appropri-
ate reliefs in this case, the Court bore in mind that the Petitioner was a communi-
ty who had been deprived of their shelters and rendered homeless, and that the
State has a constitutional obligation to take appropriate legislative and policy
measures to ensure that the Petitioner had access to the rights set out in Article
43.

44. The High Court granted the Petitioner the following declarations, that:
(i) The demolition by the 2nd Respondent of the Petition-
er’s houses situate in Mitumba Village near Wilson

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 Airport was illegal, irregular, unprocedural and con-
trary to Articles 26, 27(1) (2) and (4), 28, 29, 40, 43, 53
and 56 of the Constitution.
(ii) Any forceful eviction and/or demolition without a re-
location option is illegal, oppressive and violates the
rights of the Petitioner.

45. The Court further held that the State’s obligation required it to assist the Court
by showing if, and how, it was addressing or intended to address realization of
socio-economic rights, and what policies, if any, it had put in place to ensure that
the rights were realized progressively, and how the Petitioner fits into those poli-
cies and plans. In the circumstances, before its final orders, the High Court is-
sued a structural interdict in the following terms, that:
i) The Respondents do provide, by way of affidavit,
within 60 days of today, the current state policies and
programmes on provision of shelter and access to
housing for the marginalised groups such as resi-
dents of informal and slum settlements.
ii) The Respondents do furnish copies of such policies
and programmes to the Petitioner, other relevant
state agencies, Pamoja Trust (and such other civil so-
ciety organisation as the Petitioner and the Respond-
ents may agree upon as having the requisite
knowledge and expertise in the area of housing and
shelter provision as would assist in arriving at an ap-
propriate resolution to the Petitioner’s grievances), to
analyze and comment on the policies and pro-
grammes provided by the Respondents.
iii) The Respondents do engage with the Petitioner,
Pamoja Trust, other relevant state agencies and civil

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 society organizations with a view to identifying an
appropriate resolution to the Petitioner’s grievances
following their eviction from Mitumba Village.
iv) That the parties report back on the progress made to-
wards a resolution of the Petitioner’s grievances
within 90 days from today.

46. Thereafter, the State filed an affidavit appending the Government’s Guidelines on Set-
tlements and Evictions. The learned judge thereafter gave the parties 45 days to en-
gage with a view of finding an amicable solution. On 5th May 2014, the trial court di-
rected that the proceedings before it be held in abeyance pending the determination of
the appeal at the Court of Appeal.

b) Court of Appeal
47. The 1st Respondent was aggrieved by the High Court judgment, decree, orders
and directions and appealed to the Court of Appeal.

48. The 1st Respondent filed 18 grounds of appeal which the Court of Appeal sum-
marized as follows, that the learned High Court judge had erred in law and in
fact by:
i. Finding that the Appellant had not filed any response to
either the petition or the amended petition hence failed to
consider the Appellant’s response thereof.
ii. Delegating her judicial functions and powers to Pamoja
Trust, other unnamed state agencies and civil society or-
ganizations and by directing that the parties should en-
gage with those third parties in identifying appropriate
remedies.
iii. Making findings and issuing orders not sought or con-
templated by law.

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 iv. Failing to appreciate that the Appellant had issued earlier
notices to the residents to vacate the suit property and
holding that the notice issued was short.
v. By holding that the Appellant had a constitutional and
legal obligation to make policies and programmes on
provision of shelter and access to housing for marginal-
ized groups and further failing to consider that the Ap-
pellant had a specific statutory mandate that does not in-
clude settlement of landless Kenyans.
vi. Issuing contradictory orders incapable of compliance.
vii. Issuing composite orders applying to the Appellant, the
2nd and 3rd Respondents jointly whereas their actions and
obligations differ.
viii. Failing to appreciate that the 1st Respondent had not
demonstrated the entitlement to the reliefs sought and
shifting the burden to the Appellant, 2nd and 3rd Re-
spondents contrary to the law.
ix. Failing to appreciate the progressive nature of social-
economic rights under the Constitution.
x. Entertaining the petition filed by the 1st Respondent
which was not a legal entity hence lacking the requisite
locus to represent the residents of Mitumba Village.
xi. Finding that the eviction in question was carried out by
the Appellant.
xii. Making findings which were not supported by the evi-
dence before the Court.

49. In a judgment delivered on 1st July 2016, the Court of Appeal (E. M. Githinji, W.
Karanja And J. Otieno-Odek, JJ.A) made the following findings:

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 i. The Trial Court made correct findings as regards the 3rd
Respondent but erred in law in making final orders that
are applicable and enforceable against the 3rd Respond-
ent. The 3rd Respondent as Commissioner of Lands is
under no legal obligation to allocate or alienate land that
is already alienated and registered in the name of a third
party; to this extent the trial court erred in law in making
a composite order and issuing directives applicable and
enforceable against the 3rd Respondent.
ii. The Trial Court erred in abdicating its judicial function
and bestowing the same to persons and entities not vest-
ed with the constitutional mandate to identify and de-
termine appropriate relief and resolution to the Petition-
er’s grievances.
iii. Subject to limited exceptions, delivery of judgment ren-
ders a trial court functus officio. The trial Court erred in
law in reserving for itself outstanding issues to be con-
sidered after judgment. The court further erred in allow-
ing affidavits and or pleadings to be filed after delivery
of judgment.
iv. Whereas a court has jurisdictional competence to issue
interim orders, the trial court failed to appreciate that the
concept of partial or interim judgment is not part of the
Kenyan legal system. Whereas a trial Court has the juris-
dictional competence to make interim orders, the trial
court erred in delivering a judgment that was not a final
judgment that determined the rights and liability of par-
ties.
v. Under the political question doctrine and noting the pro-
visions of Article 20(2) and 20(5)(c) of the Constitution, a

14

 trial Court should rarely interfere with a decision by a
state organ concerning the allocation of available re-
sources for progressive realization of socio-economic
rights solely on the basis that it would have reached a
different conclusion.
vi. The Trial Court erred in law in issuing orders and direc-
tions on unpleaded issues.
vii. 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 relat-
ing to the flight path to Wilson Airport; the court failed to
evaluate the security and safety of the flight path vis-a-
vis the structures in Mitumba village; the court failed to
evaluate the issue of unregulated garbage attracting birds
along Wilson Airport’s flight path. Due to these failures,
we interfere with the findings and conclusions made by
the Trial Court and come to a determination that the Trial
Court erred in fact and law in failing to properly evaluate
the evidence on record.
viii. The Trial Court erred in law in issuing orders and direc-
tions compelling the Appellant to formulate policy and
programs for provision of shelter and access to housing
for residents of informal and slum settlements while ig-
noring the Appellant’s express statutory mandate.

50. Consequently, the Court of Appeal set aside in entirety the judgment, de-
cree, orders and directions given by the trial court in its judgment dated 11th
April 2013. The Court further set aside all consequential orders ensuing there-
from and holding that a Trial Court becomes functus officio after delivery of
judgment and that no further pleadings can be filed after judgment, and that the

15

 trial court had no post-judgment supervisory powers; the Court of Appeal
barred further proceedings by the Trial Court emanating from the amended Peti-
tion dated 1st December 2011.

c) Notice of Appeal and Certification Proceedings

51. Aggrieved by the judgment, the Appellant filed a Notice of Appeal dated 8th July
2016 at the Court of Appeal and received at the Supreme Court Registry on 11th
July 2016 and on 11th August, 2016 sought a certification of the appeal as raising
questions of general public importance under Article 163(4)(b).

52. In a ruling delivered on 2nd February, 2018 the Court of Appeal certified the ap-
peal as raising questions of general public importance and further directed the
Applicant to file a Notice of Appeal within fourteen days under Rule 31 of the
Rules of this Court.

E. GROUNDS FOR THE PETITION OF APPEAL (SUPREME COURT)

53. The Petitioner appeals against the decision of the Court of Appeal on the follow-
ing eight (8) broad grounds of Appeal (with sub-grounds), that the learned Judg-
es of the Court of Appeal erred in law and in fact:

a. On the interpretation and application of the Respondents’ obligation to observe, respect, pro-
tect, promote and the Petitioner’s right to housing, right to dignity, rights of children, right to
life as well as equality and freedom from discrimination
• Failing to find that the Petitioner’s rights under Articles 27, 28, 29, 43, 53
and 56 of the Constitution had been violated despite the admitted eviction
and resulting homelessness.
• Failing to find that the Respondents had a mix of negative and positive ob-
ligations to observe, respect, protect, promote and fulfil the Petitioner’s
right to adequate housing.

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 • Failing to address itself to the normative content of the obligations of the
State and all state organs on the right to adequate housing in view of an
admitted forceful eviction resulting in homelessness.
• Holding that the Court’s imposition of constitutional responsibility on the
1st Respondent for violating of its negative obligation to respect and not in-
terfere with the Petitioner’s right to housing was an interference with its
statutory mandate and amounted to imposition of a positive obligation to
craft policies and programs on provision of shelter and access to housing.
• Finding that the Petitioner had no claim against the 3rd Respondent, the of-
ficial in charge of allocation, alienation, processing and issuance of land ti-
tles held by the Government despite the 3rd Respondent’s obligations un-
der Article 21(1) to observe, respect, protect, promote and fulfil the Peti-
tioner’s right to housing as well as under Article 21(3) to address the needs
of vulnerable groups within society, including members of marginalised
communities, slum dwellers included.
• Regarding the Petitioners as squatters, and treating them as such when
they were occupying the land at the behest of the government, the 1st Re-
spondent included.
• Holding that Kenya Airports Authority (KAA) was a private body, and
that there was a conflict between the Petitioners’ right to adequate housing
versus the KAA’s private property rights when KAA is a state organ with
constitutional obligations on the right to housing.
• Disregarding the best interest of the evicted children.

b. In unjustifiably interfering with the High Court’s discretionary grant of a structural in-
terdict as the most appropriate relief under Article 23 in the circumstances of the Petition
• Disregarding binding precedent from the Supreme Court on the use of
structural interdicts in the Communications Commission Of Kenya v Royal

17

 Media Services Limited [2014] eKLR (Sc Petition No. 14 Of 2014 as consolidated
with Petition Nos. 14 A, 14 B And 14 of 2014.)
• Ignoring the expansive scope of the court’s jurisdiction under Article 23 in
finding that the structural interdict had not been pleaded.
• Invoking the irrelevant Civil Procedure Rules, 2010 and ignoring the rele-
vant Rules 3 to 8 of the Constitution of Kenya (Protection of Rights and
Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga
Rules, 2013).
• Holding that a court becomes functus officio after judgment is delivered
bringing to an end the jurisdiction of the court that delivers the same
judgment even where a court issues a structural interdict, continuing man-
damus or supervisory orders as the most appropriate relief.
• Failing to find that Article 23(3) obligated the High Court to issue structur-
al interdicts, continuing mandamus or supervisory orders if such was the
most appropriate relief in the circumstances of the case.
• Failing to take into account or to appreciate the context and complexity of
enforcing orders on socio-economic rights by interfering with the learned
judge’s discretion to issue a structural interdict.
• Dwelling on technicality of the nomenclature to be accorded to a structural
interdict and using that technicality to deny the Petitioners substantive jus-
tice as required by Article 159 of the Constitution.
• Failing to apply Article 159 which requires courts to promote use of the al-
ternative forms of dispute resolution such as reconciliation, mediation and
arbitration and to find that the High Court was therefore within the Consti-
tution when it ordered for a more reconciliatory, participatory and ac-
countable approach to be taken in the enforcement of the orders of the
Court.

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 • Misapprehending the Orders of the High Court as to the role to be played
by Pamoja Trust and other possible civil societies by mischaracterizing the
role as a delegation of judicial power.

c. On failing to properly interpret and apply international law on the right to hous-
ing/prohibition of illegal and forceful evictions under Article 43
• Holding that there was no law in Kenya dealing with forcible eviction and
resettlement of persons occupying public or private land, despite Kenya’s
proved international law obligations under diverse conventions and trea-
ties including the United Nations Charter.
• Misapprehending the distinction between Article 2(5) and 2(6) and the ex-
tent to which the Learned High Court Judge applied and relied on interna-
tional law and the use she made of General Comments and guidelines
(rules) promulgated to clarify state obligations under international Con-
ventions to which Kenya was a state party.
• Holding that under Article 2(5) (as read with Article 38 of the Statute of the
International Court of Justice), the category ‘general rules of international
law’ is synonymous with jus cogens or peremptory norms of customary in-
ternational law.
• Holding that the Constitution automatically prevails in all cases of incon-
sistency with general rules of international law (jus cogens) or Treaty rati-
fied by Kenya contrary to Article 19(3)(b) of the Constitution as read with
Article 27 of the Vienna Convention.
• Failing to appreciate the utility of the doctrine of constitutional borrowing
in fashioning appropriate remedies in human rights adjudication under
Article 23.

19

d. On disregarding the Court’s obligation under Article 20(3)(a) and (b) to develop the law
to the extent that it did not give protection from forced evictions and adopt the interpreta-
tion that most favors the right to housing
• Holding that the Court was bound to interpret and apply the law as it
stood until Parliament enacted a law on evictions and resettlement contra-
ry to Articles 10, 20(3)(a) and (b), and 259.
• Failing to find that international law, by which Kenya is bound, forbade
forced evictions even where the evicted persons did not hold title to the
land.

e. In invoking the foreign ‘political question doctrine’ to exclude the High Court’s jurisdic-
tion under Article 10, 19(1), 20(1) and (5), 21(2) and 165 to review state policy on socio-
economic rights
• Mischaracterizing the Orders of the learned High Court Judge as address-
ing themselves to policy issues when in fact the High Court was adjudicat-
ing a factual claim of/ on violation of the right to housing.
• Disregarding Supreme Court binding precedent against stereotypical ref-
erences to foreign jurisprudence and mechanistically applying the Ameri-
can political question doctrine leading to the holding that courts lack juris-
diction to adjudicate the constitutional validity of any policy and hence
misapprehending and minimizing the Court’s jurisdiction under Articles
10, 20(5) and 165(3)(d)(ii) as read with Article 2.
• Ignoring binding precedent on adjudication of state policy under Article 10
in Communications Commission Of Kenya v Royal Media Services Limited [2014]
eKLR (Sc Petition No. 14 of 2014 as consolidated with Petition Nos. 14 A, 14 B
And 14 of 2014.)
• Failing to appreciate that the High Court has jurisdiction under Article 165
to adjudicate whether the State has discharged its Article 21(2) mandate to
take legislative, policy and other measures, including the setting of stand-

20

 ards, to achieve the progressive realization of the rights guaranteed under
Article 43.

f. In failing to conduct the sequential Article 24 analysis necessary to justify public interest
or national security as a limitation of the Petitioners’ right to adequate housing through
forced eviction and demolitions
• Holding that public policy, and national interest or national security could
justify eviction and demolition of structures in the circumstances of this
case without undertaking an article 24 analysis, in particular in failing to
consider whether a less restrictive means to achieve the purpose could
have been employed.
• Failing to find that the eviction and demolitions were arbitrary, discrimina-
tory and irrational because multi-storied buildings such as Midland
Apartments, Parkview Apartments, and Soledo Apartments, built on the
alleged flight path were left intact, while only the Petitioners’ temporary
shacks made of mud and rusty iron sheets, were demolished.

g. In failing to interpret the concept of progressive realization of the right to housing under
Articles 21 and 43
• Failing to consider that the economic, social and cultural rights are justicia-
ble under the Constitution of Kenya 2010 and that the obligations to re-
spect and protect are immediately realizable.
• Failing to find that progressive realization does not constitute a hiatus on
rights, but requires the state to immediately take steps, to the maximum of
its available resources, towards the realization of the rights guaranteed.
• Failing to find that under Article 20(5) it is the responsibility of the State
not only to demonstrate that resources are not available, but also to
demonstrate priority in allocating resources, to the widest possible enjoy-

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 ment of the right to housing having regard to prevailing circumstances, in-
cluding the vulnerability of the Petitioners and other slum dwellers.
• Failing to find that the court is entitled to interfere with decisions by state
organs, pursuant to Articles 10, 23, 20(5)(a), (b), and (c) so long as it is not
because the court “would have reached a different conclusion”.

h. In reversing a High Court judgment from an admitted forceful eviction in its entirely
and failing to grant any appropriate relief
• Effectively condoning an illegal eviction and criminal activities – including
disregard of a Court Order in carrying out evictions - carried out by the 1st
and 2nd Respondents herein and by failing to have regard of the plight of
the Petitioners who are vulnerable members of the Kenyan society.
• Disregarding the Court of Appeal’s obligation under Article 10, 21(1) and
21(3) to respect, protect, promote, and fulfill the Petitioners’ right to hous-
ing.

F. THE LAW
54. The Petitioners will, at the hearing and through written submissions, place reli-
ance on the following:
a. The Constitution of Kenya - Articles 1, 2, 10, 19, 20, 23, 26, 27(2) (4) and (6),
28, 29, 39, 40, 43, 47, 56, 159, and 259.

b. International law
i) The Universal Declaration of Human Rights;
ii) The International Covenant on Economic, Social and Cultural Rights;
iii) International Convention on the Rights of the Child;
iv) International Covenant on Civil and Political Rights;
v) African Charter on Human and People’s Rights; and
vi) General Comments and guidelines issued under various Treaties.

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 c. Statute
vii) The Land Act - Section 152A - 152I
viii) The Supreme Court Act - Section 3

d. Case law decided in Kenya and other comparator jurisdictions round the globe.

G. THE QUESTIONS OR ISSUES FOR DETERMINATION

55. The Petitioner presents the following issues for determination:

(a) Did the Court of Appeal err in failing to find that through the admitted forceful eviction
and resulting homelessness, the Respondents violated their obligation to observe, respect,
protect, promote and fulfill the Petitioners’ right to housing, right to dignity, rights of chil-
dren, right to life as well as equality and freedom from discrimination?
(b) Were the learned judges of the Court of Appeal justified in interfering with the High
Court’s discretionary grant of a structural interdict as the most appropriate relief under
Article 23 in the circumstances of the Petition?
(c) Did the Court of Appeal properly interpret or apply international law on the right to hous-
ing under Article 43?
(d) Did the Court of Appeal disregard its obligation under Article 20(3)(a) and (b) to develop
the law to the extent that it did not give protection from forced evictions and to adopt the
interpretation that most favors the right to housing?
(e) Did the Court of Appeal improperly invoke the foreign political question doctrine to ex-
clude the High Court’s jurisdiction under Articles 10, 19(1), 20(1) and (5), 21(2) and 165
to review state policy on socio-economic rights?
(f) Did the Court of Appeal fail to conduct the sequential Article 24 analysis necessary to jus-
tify public interest or national security as a limitation of the Petitioners’ right to adequate
housing through forced eviction and demolitions?
(g) Did the Court of Appeal err in failing to properly interpret or apply the concept of progres-
sive realization of the right to housing under Articles 21 and 43?

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 (h) Did the Court of Appeal err in reversing a High Court judgment from an admitted forceful
eviction in its entirely while failing to grant any appropriate relief itself?

H. RELIEFS SOUGHT
56. The Petitioner requests for this or other appropriate relief from this Court:
a. This appeal be allowed.
b. A declaration that the Respondents violated the Petitioner’s constitutional
rights under Articles 26, 27(2),(4) & (6), 28, 29, 39, 40, 43, 47 & 56 as deter-
mined by the High Court.
c. A declaration that the Petitioners are entitled to compensation and or al-
ternative land for loss of their property including land and other property
destroyed by the 1st Respondent (and its agents) when it carried out an il-
legal eviction contrary to the Orders of the Court.
d. An Order quashing the Judgment, Orders and Decree of the Court of Ap-
peal and affirming the Judgment, Orders and Decree of the High Court.
e. An Order remitting this matter to the High Court (Human Rights and
Constitutional Division) with the Directions that that Court monitor the
compliance by the Respondents with the Orders and directions issued by
the High Court on April 11, 2013.
f. An Order awarding costs to the Petitioner.

G. DOCUMENTS ACCOMPANYING THE PETITION

57. The following is a list of documents accompanying the Petition.
• Petition of Appeal to the Supreme Court.
• Record of Appeal.

Dated at Nairobi this day of 2018

MBUTHIA KINYANJUI & CO. ADVOCATES,

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 ADVOCATES FOR THE PETITIONERS

To:
The Supreme Court of Kenya
LODGED in the Registry at Nairobi on this day of 2018

………………………….
DEPUTY REGISTRAR
SUPREME COURT OF KENYA
DRAWN AND FILED BY:-
MBUTHIA KINYANJUI & CO. ADVOCATES,
HAZINA TOWERS, 8TH FLOOR,
MONROVIA STREET,
P.O. BOX 104622-00101,
NAIROBI.

TO BE SERVED UPON:-
1. E K MUTUA & CO. ADVOCATES,
VIEW PARK TOWERS, 11TH FLOOR,
UHURU HIGHWAY,
P.O. BOX 60596-00200,
NAIROBI (EM 1906/11)
TEL: 2249549/3342721/020631805/0723793599/0732593247,
info@ekmutua.com/lawsuits@africaonline.co.ke

2. THE ATTORNEY GENERAL,

STATE LAW OFFICE,
SHERIA HOUSE,
HARAMBEE AVENUE,

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 P.O. BOX 40112,
NAIROBI.

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