William Musembi & 13 others v Moi Education Centre Co. Ltd & 3 others
This case is Kenyan Supreme Court decision upholding a High Court ruling protecting the right to housing, regardless of land title, guaranteed under Article 43 of the Constitution. Even if private landowners have the right to evict, they are liable for damages if they evict in an unconstitutional manner.
Ten petitioners, on behalf of 326 other residents of City Cotton and Upendo villages alleged that the respondents (1st Moi Education Centre Co. LTD, 2nd the Inspector General of police, 3rd the Cabinet Secretary for Lands, Housing, and Urban Development, and 4th the Attorney General) violated the petitioners’ right to housing guaranteed under Article 43 of the Kenyan Constitution.
The petitioners stated that they were all residents of City Cotton and the Upendo villages in Nairobi, South C Ward, since the late 1960s. The villages contained housing and licensed businesses and were officially supplied with electricity and water. In the 1980s, the first respondent forcibly resettled 200 of the petitioners in the Fuata Nyayo village, South B Estate, in Nairobi. In 2013, 300 armed people, guarded by police, invaded both City Cotton and the Upendo villages. They destroyed all structures and building materials, violently evicted the petitioners, and destroyed all property and possessions. The petitioners had not received any notice, warning, or eviction order prior to the events. In addition to the right to housing, petitioners also claimed that the rights of children and of older adults, and the rights to privacy and security were violated.
The primary question before the Court was whether, in carrying out the eviction of the petitioners from land which admittedly the petitioners had no legal title to, the respondents violated the petitioners’ rights to human dignity and security, and the rights to housing and health under Article 43, when read with Articles 28, 29, 53 and 57 of the Constitution as the High Court had found.
In agreement with the High Court, the Supreme Court found that “forced evictions generally constitute a violation of fundamental rights and freedoms and an abuse of inherent human rights and dignity under Article 43 of the Constitution, including, but not limited to, the right to the highest attainable standards of health and healthcare services, accessible and adequate housing, freedom from hunger and to adequate food, clean and safe water, social security and education.” Not only was the eviction of the petitioners violent, but it also did not accord with the respondents’ constitutional obligation to ensure that those in informal settlements are treated with dignity. Additionally, the Respondents were obligated to give notice in writing, carry out the eviction in a respectful manner, and protect the rights of vulnerable people.
After finding that the respondents violated the petitioners’ constitutional rights, the Court upholds that the lower courts damages requiring the first respondent to pay a sum of Kshs 150,000 to each of the petitioners, and the State to pay each of the petitions Kshs 100,000.
This case importantly upholds the right to housing as a human right, directly tied to human dignity. Forced evictions are illegal under international law, and this case importantly holds the Kenyan government to that standard.
The Supreme Court clarified that private entities have the obligation, pursuant to Article 20 (1) not to violate Article 43 rights because the Bill of Rights requirement not to violate rights applies both horizontally and vertically, binding both the State and all persons. However, unlike the High Court, the Supreme Court ruled that the first respondent, as a private entity, is not mandated to ensure the realization and protection of social and economic rights. The Supreme Court held that the Court of Appeal correctly found that the progressive realization of Article 43 rights is the mandate of the State and does not extend horizontally to private entities.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.