Thomas O Opiyo & 127 others v Teleposta Pension Scheme Registerd Trustees [2014] KEELC 636 (KLR)
The bottom line
#A Nairobi court stopped the eviction of long-serving retired Telkom and Postal workers, letting them stay in their homes while their case is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
The Plaintiffs demonstrated long occupation and that their constitutional right to adequate housing under Article 43 is threatened; procedural protections against forced eviction await trial determination
The court found the Plaintiffs had occupied the premises for over a decade and their right to adequate housing under Article 43 was threatened by threatened demolition. The Defendant had published only a 30-day notice, which the court held was insufficient for long-term occupants, citing Ibrahim Sangor Osman where a 21-day notice was found unreasonable. Whether due procedural protections against forced eviction were observed could only be determined after trial.
Whether the strict Giella conditions should apply to the application
No; in the circumstances the subject matter of the suit should be preserved pending determination, having regard to the attendant circumstances and the balance of convenience
On evaluation of all the material and the differing positions of the parties on the terms on which the houses were to be sold, the court departed from strict application of the Giella criteria. Instead, weighing the circumstances and the balance of convenience, it invoked its jurisdiction under Article 23(3) to preserve the subject matter by directing maintenance of the status quo, with parties to fast-track the suit for trial.
Whether the Plaintiffs should be given first priority to purchase the houses
Fair play would dictate that occupiers with means be given the opportunity to purchase if the houses are for sale, but the terms of sale are disputed and must await trial
The plaint seeks a declaration that the Plaintiffs are entitled to first priority to purchase. The court understood the Plaintiffs to assert priority based on long occupation as tenants and observed that fair play would dictate giving occupiers who can meet the Defendant's terms the opportunity to purchase. However, the terms of sale were unclear and contested, so the issue must be resolved at the hearing of the main suit.
Legal principles established
#- A short notice of eviction to long-term occupants is inadequate and unreasonable
- Forced evictions are prima facie violations of the right to adequate housing and States should be prohibited from intentionally making a person or community homeless following an eviction (General Comment No. 7 adopted in Satrose Ayuma)
- The court has jurisdiction under Article 23(3) of the Constitution to grant conservatory orders where a Bill of Rights violation or threat is alleged
Court orders
#- 1.The parties to maintain and observe the obtaining status quo whereby the Plaintiffs shall remain in possession and occupation of the suit premises until the suit is heard and determined
- 2.The parties to comply with Order 11 of the Civil Procedure Rules within the next 60 days to fast-track the hearing and final determination of the suit
- 3.Matter fixed for pre-trial conference on 25th January 2015 for taking of pre-trial directions
- 4.No order for costs in regard to the application; each party to bear their own costs
- Jurisdiction invoked
- Article 23(3) of the Constitution (jurisdiction to grant conservatory orders); inherent powers under section 3A of the Civil Procedure Act invoked by the Plaintiffs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas O Opiyo & 127 others v Teleposta Pension Scheme Registerd Trustees [2014] KEELC 636 (KLR)", Case Analysis (2014). Not stated in the judgment (former employees of Telkom Kenya Ltd and Postal Corporation of Kenya v Teleposta Pension Scheme). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/636/eng@2014-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.