Moi Education Centre Co Ltd v Musembi & 16 others (Civil Appeal 363 of 2014) [2017] KECA 107 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even private landowners must get a court order before evicting occupants, but only the State must provide alternative housing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the evictees' amended petition was properly drafted to show the rights infringed, the manner of infringement and the remedies sought
- 2.Whether the appellant has any obligation to provide alternative accommodation to the evictees and to ensure the realization of economic and social rights under Article 43 of the Constitution
- 3.Whether the Judge appreciated and considered the appellant's rights over the property under Article 40 of the Constitution
- 4.Whether the appellant was obligated to obtain a court order prior to evicting the evictees
- 5.Whether the appellant gave justifiable reasons and sufficient notice to the evictees prior to eviction
- 6.Whether there was sufficient proof of violation of the evictees' rights
- 7.Whether the Judge was correct in granting the orders that she did and in awarding compensation to the evictees
Key legal issues
#Precision in drafting constitutional petitions (Anarita Karimi Njeru rule)
The amended petition met the requirements of rule 10 of the Mutunga Rules; the appellant admitted the eviction and demolition and could not claim it was handicapped in answering the case
A party alleging violation of constitutional rights must demonstrate the rights violated and the manner of violation. However, rule 10 of the Mutunga Rules requires facts, provisions violated, injury and reliefs sought, all of which were present. The appellant admitted the eviction and demolition, and there was no suggestion it did not know or appreciate the case it had to meet.
Horizontal application of socio-economic rights against a private actor
The Bill of Rights applies horizontally, but a private party bears only a negative obligation not to violate rights; the positive obligation to provide housing lies on the State under Article 21(2)
The Judge correctly read Article 43 as entailing a negative obligation not to deprive citizens of shelter and as applicable against private persons, but erred in lumping the appellant together with the State as bearing the obligation to provide housing. Under Article 21(2) it is the State's duty to take legislative, policy and other measures towards progressive realization of Article 43 rights.
Whether a court order is a prerequisite for eviction
Yes. Where occupants were in possession before the appellant became registered proprietor, the appellant should have sought a court order before carrying out the eviction; the distress-for-rent order was used only as a pretext
The Chief Magistrate's Court order authorized only levying of distress for rent against two named persons, not eviction of the evictees. Applying Gusii Mwalimu Investment and Teresia Irungu, a landlord must obtain an order of a competent court for possession. The eviction was carried out under the pretext of levying distress and was not sanctioned by law. The Land Laws (Amendment) Act, 2016 now provides a statutory framework for evictions.
Notice of eviction
The Judge erred in rejecting the appellant's evidence of service of eviction notices; the notices exhibited bore certificates of service
The appellant's chairman exhibited eviction notices dated 21st May 2009 and 14th March 2013 with certificates attesting service on all occupants. The judgment did not explain why that evidence was rejected. The evictees failed to heed notices served, which is a relevant circumstance in the court's disposition.
Award of compensation for constitutional violations
The awards of Kshs. 150,000 and Kshs. 100,000 per evictee could not stand; there was no evidence on which quantum could be assessed and the evictees were obliged to place material before the court
Although the High Court has power under Article 23(3) to order compensation, an appellate court interferes only where the judge proceeded on wrong principles. Constitutional damages are discretionary, guided by rationality and proportionality, and where material is insufficient, an inquiry into quantum is desirable. The evictees were obliged to prove their loss, including loss of houses, business structures and businesses, before compensation could be assessed.
First appeal duties
As a first appellate court, the Court is mandated to review the material before the High Court and draw its own conclusions, interfering only where findings are unsupported by evidence or based on wrong principles
Relying on Selle v Associated Motor Boat Co and Jabane v Olenja, the Court restated the standard first-appellate review applicable to its re-evaluation of the evidence and findings of the High Court.
Legal principles established
#- A private landowner must obtain an order of a competent court before evicting occupants in possession; self-help eviction is unlawful even against squatters
- The Bill of Rights binds private persons horizontally, but the positive obligation to provide housing rests on the State, not on private actors
- Compensatory damages for constitutional violations require evidence of loss and, where quantum cannot be assessed on the material available, a separate inquiry into damages should be undertaken
Court orders
#- 1.The judgment and decree issued by the High Court on 14th October in Constitutional Petition No. 264 of 2013 as consolidated with Constitutional Petition No. 274 of 2013 is set aside
- 2.Substituted with a declaration in favour of the evictees that the demolition of their houses and their forced eviction without a court order is a violation of their right to inherent human dignity and security of the person
- 3.Each party shall bear its own costs of the proceedings in the High Court as well as the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Petition No. 264 of 2013 as consolidated with Constitutional Petition No. 274 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court exercising constitutional (Bill of Rights) jurisdiction
- Consolidated with
- Constitutional Petition No. 274 of 2013
Relief refused
#Declaration that the appellant and the State must provide alternative land or shelter
The Judge misdirected herself in extending the obligation to provide alternative land or shelter to the appellant; the positive obligation rests on the State under Article 21(2)
Compensation of Kshs. 150,000 by the appellant and Kshs. 100,000 by the State to each evictee
There was no evidence or inquiry on which the quantum of damages could be based
Declarations of violation of children's rights under Article 53 and elderly persons' rights under Article 57
Only a declaration of violation of the right to human dignity and security of the person should have issued; the rest of the prayers would fall by the wayside
Costs
Each party shall bear its own costs of the proceedings in the High Court as well as the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In this case, an order of the court was therefore a prerequisite for undertaking the evictions, and we so find.
The judgment and decree issued by the High Court on 14th October 2016 in Constitutional Petition No. 264 of 2013 as consolidated with Constitutional Petition No. 274 of 2013 is hereby set aside and substituted with a declaration in favour of the evictees that the demolition of their houses and their forced eviction without a court order is a violation of their right to inherent human dignity and security of the person.
Each party shall bear its own costs of the proceedings in the High Court as well as the costs of the appeal.
Whereas the appellant is under an obligation not to violate the evictees rights in that regard, it is not under a “positive” obligation to provide the evictees with housing.
There was clearly no evidence before the Judge to assist the court in assessing the amount of appropriate compensation.
the preponderant view expressed by the High Court in those decisions, correctly in our view, is that notwithstanding that squatters may not have title over the property they occupy they are entitled to be treated with dignity.
Issues in the judgment
#The judgment inconsistently dates the impugned High Court judgment: the opening paragraph and body state it was delivered on 14th October 2014, while the disposition records the set-aside judgment as issued on 14th October 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moi Education Centre Co Ltd v Musembi & 16 others (Civil Appeal 363 of 2014) [2017] KECA 107 (KLR)", Case Analysis (2017). Court of Appeal Appeal arising from Constitutional Petition No. 264 of 2013 as consolidated with Constitutional Petition No. 274 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/107/eng@2017-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.