Mitu-Bell Welfare Society v. Kenya Airports Authority, SC Petition 3 of 2018

In September 2011, 3,000 families were given only 7 days prior notice before they were evicted from the land next to the Wilson Airport. Their shelters were destroyed. The Kenya Airports Authority owned the plot of land next to the airport, but the resident families of the Mitumba Village had occupied the property for some time.

The Mitu-Bell Welfare Society (“Mitu-Bell”), the petitioner, is an organization comprised of residents of the former Mitumba Village. In 2011, Mitu-Bell sued the Kenya Airports Authority, the Kenyan Attorney General, and the Commissioner of Lands, seeking an injunction to stop the evictions, pending hearing and determination of the petition. The Court issued the injunction but the Kenya Airports Authority disobeyed the court orders and forcefully evicted the residents. Mitu-Bell then revised their complaint and sought declaratory reliefs as well as compensation and reallocation of land. The High Court issued declaratory relief and supervisory orders in favor of Mitu-Bell, but those orders were then overturned by the Court of Appeal. The Court of Appeal certified the case as one of general public importance due to the issue of evictions in Kenya and based on this decision, Mitu-Bell filed an appeal to the Supreme Court.

The Supreme Court addressed four major issues in the case. First, it discussed the place of “structural interdicts” (supervisory orders) as forms of relief in human rights matters under the Constitution. Specifically, it discussed whether the issuing of structural interdicts was within the scope of the High Court’s powers. The Court held that under Article 23(3) of the Constitution, courts have the power to create orders that protect a right and prescribe appropriate rules and damages related to that right. Further, for a form of relief to be appropriate, it must be effective, sufficient and available to address the human rights violation. The issue of appropriate remedy was central in the case because the Court of Appeal had relied heavily on the doctrine of functus officio to rule a court became functus officio once it had handed down its judgment and thus supervisory orders were not available as a remedy.

Second, the Supreme Court discussed the effects of the international law provisions within the Constitution. Article 2 of the Constitution recognizes international law and treaty law as forming part of the law of Kenya. The Court held that the language from this article is to be interpreted as meaning that these laws are a “source of law” in Kenya, and that these laws may be used to inform Kenya’s interpretation of its own Constitution.

Third, the Court explored the role of UN guidelines (i.e. the Committee on Economic, Social, and Cultural Rights General Comment 7 on the right to adequate housing) in the interpretation of Kenyan law. The Court held that such UN guidelines, which the High Court had used to inform its supervisory orders, do not qualify as general, binding rules of international law. However, it noted that it would be appropriate for courts to consider those guidelines to inform supervisory orders and declaratory relief because the guidelines provide instruction on the right to dignity and the right to housing, which are protected by international law under the International Convention for Civil and Political Rights and the International Convention on Economic, Social, and Cultural Rights. The High Court had relied on the UN guidelines to cure the lacuna that existed on evictions owing to the fact that at the time, there was no law on evictions.

Lastly, the Court turned to the issue of whether the petitioners’ rights were violated when they were forcefully evicted from the land they had settled on. Article 43(1)(b) of Kenya’s Constitution protects the right to “accessible and adequate housing.” Under international law obligations, Kenya has committed to progressively realize these rights. In their analysis, the Court explained that the Court of Appeal had misinterpreted the “progressive realization of a right,” by implying that not all Kenyans would be able to access the right all at once. The Court clarified that every individual is always entitled to the right to housing, and that the principles of progressive realization puts the burden on the government not fulfilling its obligation to prove that it lacks the resources to fulfill the right. The Court held that every individual has the right to housing, even if they do not own land. It found that individuals are protected by the right to housing under the Constitution and under international law, and that when the government fails to provide housing to all, it must protect those who live in informal settlements like the petitioners at Wilson Airport. When individuals settle on public land that they do not own, their settlement does not create ownership, but it does indicate that the government has neglected its obligation to provide accessible and adequate housing.