Mitu-Bell Welfare Society v. Kenya Airports Authority & Others – Supreme Court Clarifies Housing Rights and Judicial Powers

In a landmark decision, the Supreme Court of Kenya has provided crucial clarity on the right to housing, the application of international law, and the scope of judicial remedies in human rights cases in the case of Mitu-Bell Welfare Society vs. The Kenya Airports Authority & others. The case originated from the forced eviction and demolition of homes in Mitumba Village, an informal settlement near Wilson Airport in Nairobi.

Background

The appellants were residents of Mitumba Village, represented by Mitu-Bell Welfare Society. They lived on Plot Number 209/12908, with their children attending Mitumba Primary School on adjacent Plot Number 209/12921, both situated near Wilson Airport. Their plight began with a Notice published on September 15, 2011, by the Attorney General’s office, giving them just seven days to vacate the land. This prompted the appellants to file a Petition before the High Court on September 21, 2011, seeking conservatory orders to prevent demolition. Although the High Court (Gacheche J) granted an order restraining the respondents from demolishing the village on September 22, 2011, the demolition proceeded nonetheless on November 19, 2011. Following the demolition, the appellants amended their Petition on December 1, 2011, seeking various declarations, including that the demolition was illegal, a declaration that forced eviction without relocation violates rights, orders restraining future evictions, declarations regarding their entitlement to the plots or, alternatively, compensation and reallocation, protection from discrimination, enjoyment of social-economic rights, and costs.

The respondents opposed the Petition, arguing the land belonged to the Kenya Airports Authority (KAA), that KAA had a statutory duty to ensure air safety by removing informal settlements on flight paths, that the demolition was carried out by the state for security reasons related to the war in Somalia, and that social economic rights are progressive and cannot be granted immediately.

Journey Through the Courts

At the High Court: The High Court (Mumbi Ngugi J.) framed issues including the appellants’ rights over the property, whether the eviction violated their constitutional rights, and what relief should be granted. The Court found that the appellants had no legitimate claim to the land itself under Article 40. However, it declared that the demolition, carried out despite a court order, violated the appellants’ constitutional rights. The Court found the seven-day notice unreasonable, unconscionable, and unconstitutional, noting the lack of specific legislation on evictions in Kenya. Relying on Article 2(5) and (6) of the Constitution and Kenya’s international commitments, the Court held that evictions should comply with international guidelines like the United Nations Guidelines on Evictions (General Comment No. 7).

The High Court held that the right to property under Article 40, read with Article 260, extends to goods and personal property destroyed during the demolition. It found that demolishing homes without providing alternative accommodation violated the rights under Articles 21 and 43 (right to housing and social economic rights) and national values under Article 10. The Court emphasized the State’s negative obligation (to refrain from interfering with rights) and a positive obligation (to protect, promote, and fulfill rights), drawing parallels with the South African case of Irene Grootboom and Others v. The Government of the Republic of South Africa and Others. It viewed civil and political rights as interdependent with social economic rights, meaning violation of the latter impacts the former. The Court also stressed the need for due process, reasonable notice, consultation, and participation of affected persons, principles embedded in the Constitution and UN Guidelines. Selective demolition, sparing multi-storied buildings while demolishing informal settlements, was found to be discriminatory under Article 27. The Court recognized the violation of children’s rights due to the destruction of homes and schools.

Regarding relief, the High Court, exercising its powers under Article 23, noted the State’s obligation regarding progressive realization of Article 43 rights and its duty to assist the Court by showing how it was addressing these rights. The Court issued post-judgment directives requiring the respondents to provide state policies on housing for marginalized groups, share them with appellants and civil society organizations like Pamoja Trust for analysis, and engage in discussions to find a resolution.

At the Court of Appeal: Aggrieved by the High Court’s decision, the 1st Respondent (KAA) appealed. Their grounds included the High Court’s alleged failure to consider their response, delegation of judicial functions to third parties, issuing orders not sought or contemplated by law, finding the notice short despite earlier notices, holding KAA responsible for housing policy, issuing contradictory orders, shifting the burden of proof, misunderstanding progressive realization, and faulting the locus standi of Mitu-Bell Welfare Society.

The Court of Appeal upheld the appellants’ locus standi and the Attorney General’s liability under Article 156, but set aside the liability against the Commissioner of Lands, finding no evidence he caused the eviction or violated rights. Critically, the Appellate Court found that the High Court had abdicated its judicial function by directing engagement with third parties like Pamoja Trust to identify remedies. It held that delivering judgment makes a court functus officio, meaning it cannot reserve outstanding matters or allow new pleadings afterwards, viewing partial or interim judgments as unknown in Kenyan law.

The Court of Appeal faulted the High Court for failing to evaluate critical evidence regarding the flight path, security risks, and whether adjacent high-rise buildings were also on the flight path. It emphasized national security and public interest considerations as limitations on rights under Article 24. While acknowledging the lack of eviction legislation, the Court found the High Court erred in directing KAA to develop housing policies, noting KAA’s limited statutory mandate. It also faulted the High Court for issuing orders on unpleaded issues and involving third parties who were not parties or amicus curiae. Applying the “political question doctrine” and separation of powers, the Court held that courts should not interfere with policy formulation or resource allocation decisions by state organs, especially under Article 20(5)(c). Post-judgment supervision, though used in some comparative jurisdictions like South Africa, Canada, and India, was deemed generally incompatible with Kenyan law and the functus officio principle, and the High Court’s supervisory orders were faulted.

On international law, the Court of Appeal noted that while UN Guidelines could be cited, the hierarchy of laws places the Constitution supreme. It cautioned against viewing the UN as a legislature for Kenya and restricting the application of Article 2(5). Regarding socio-economic rights versus private property, the Court agreed the appellants had no claim to the land. It faulted the High Court’s reliance on foreign cases like Olga Tellis (India) and Grootboom (South Africa), stating their constitutional contexts differed from Kenya’s. The Court held that socio-economic rights enforcement cannot confer proprietary rights in another’s land or override the Limitation of Actions Act. Re-engineering and redistributing private property lies with the Executive and Legislature, not Courts. Finally, the Court found the State was responsible for the eviction but cast doubt on KAA’s direct involvement, stating the appellants failed to prove the link between KAA and the security agents. The Court of Appeal set aside the High Court’s judgment in its entirety.

At the Supreme Court: The appellants appealed to the Supreme Court after the Court of Appeal certified the matter as one involving questions of general public importance. Their grounds included errors in interpreting rights, interfering with structural interdicts, misinterpreting international law and the obligation to develop the law, applying the political question doctrine, failing to apply Article 24 analysis, misinterpreting progressive realization, and reversing the High Court judgment entirely. They sought declarations of rights violations, compensation or alternative land, setting aside the Court of Appeal judgment, affirming the High Court judgment, and remittal for monitoring. The Initiative for Strategic Litigation in Africa (ISLA) was admitted as Amicus Curiae, making submissions on the right to remedy, evolution of remedies, comparative jurisprudence on structural interdicts, and Kenyan jurisprudence on appropriate relief.

The Supreme Court, identifying key issues under Article 163(4)(b), addressed:

1. Structural Interdicts: The Court reviewed the High Court’s post-judgment orders and the Court of Appeal’s critique. Referencing Article 23(1) & (3) and its own precedents in Communications Commission of Kenya and Muruatetu, the Court found the Court of Appeal disregarded the Supreme Court’s signals on interim remedies. The Supreme Court affirmed that Article 23(3) empowers the High Court to fashion appropriate reliefs, including interim, structural, or supervisory orders, which are not limited to the list in the Article. While acknowledging the functus officio doctrine, the Court stated it must sometimes give way in human rights cases to ensure development and enforcement of rights. However, such orders must be specific, appropriate, clear, effective, directed at parties with the mandate to enforce them, realistic, and avoid judicial overreach into policy. Interim orders can precede a final judgment.
2. Applicability of International Law (Articles 2(5) & 2(6)): The Court noted conflicting interpretations. It explained that Article 2(5) refers to general rules of international law (customary international law) and 2(6) refers to ratified treaties. These provisions make international law a source of law in Kenya, requiring courts to consider it when relevant and not conflicting with the Constitution, statutes, or precedent. Drawing on historical precedent (Paquete Habana, Triquet, Chung Chi Cheung), the Court clarified that “shall form part of the law of Kenya” means courts must take cognizance of international law. The Court held that Article 2(5) and (6) do not transform Kenya into a monist state, as many modern treaties require further domestic action.
3. Role of UN Guidelines: The Supreme Court examined the High Court’s reliance on UN Guidelines (General Comment No. 7) and the Court of Appeal’s critique. The Supreme Court disagreed with the Court of Appeal’s interpretation that “general rules of international law” in Article 2(5) only mean jus cogens (peremptory norms). It held it refers to customary international norms, including jus cogens. UN Guidelines/Comments are generally considered “Soft Law”, not binding norms of international law. General Comment No. 7 is soft law derived from the ICESCR. While not directly binding under Article 2(5) or (6) unless they ripen into customary law, a court can refer to them as an interpretive aid, especially for Article 43, as they can fill existing legal lacunae. The High Court was not faulted for referring to them as an aid.
4. Right to Housing under Article 43: The Court considered the tension between the right to housing and land title. It reiterated that the realization of Article 43 rights is progressive, requiring state measures, and courts are empowered by Article 20(5) to demand evidence from the state regarding resource allocation for these rights. The Court agreed that illegal occupation of private land cannot create prescriptive rights. However, it made a crucial distinction: the right to housing (shelter), even if informal, can crystallize over public land through long occupation, deriving from the principle of equitable access to land under Article 60(1)(a). Facing eviction from public land, occupants can seek court protection, which might involve compensation, adequate notice, humane conditions, or alternative land. The right to housing need not be predicated on land title. Courts have a role in ensuring protection for those in informal settlements.

Regarding the High Court’s specific post-judgment orders, the Supreme Court felt that ordering the state to provide policies after eviction might not have benefited the appellants. It agreed that involving non-state actors not party to the suit was inappropriate. However, the Court could not ignore that the eviction violated a court order and destroyed property, noting that courts can grant relief for such violations.

Supreme Court Orders:

The Supreme Court partially allowed the appeal. It remitted the proceedings back to the High Court with instructions to craft and grant appropriate reliefs in accordance with the Supreme Court’s judgment and the original pleadings. No orders were made as to costs.

This judgment is significant for affirming the judiciary’s role in protecting socio-economic rights, clarifying the application of international law, and recognizing that the right to housing for occupants of public land is a justiciable right that does not solely depend on formal land ownership.