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ELCPartially AllowedELC Petition Case No. E004 of 2021 (consolidated with Petition No. 1 of 2020)· [2021] KEELC 2164 (KLR)

Fatuma Khamis Bilal & 3505 others v Kenya Railways Corporation & 6 others [2021] KEELC 2164 (KLR)

Environment and Land Court
27 August 2021
10,178 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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The Kisumu Environment and Land Court ruled that Kenya Railways unlawfully evicted Kibos Nubian residents, protecting their colonial-era land licences and awarding costs.

What this practically means

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Executive summary

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This consolidated first-instance petition (Petition No. 1 of 2020 and ELC Petition No. E004 of 2021) was brought by six petitioners on their own behalf and on behalf of approximately 3,500 residents of the Kibos Nubian settlement in Kisumu against Kenya Railways Corporation, four Cabinet Secretaries, the National Land Commission, Kisumu County Government and the Attorney General. The petitioners challenged a 7-day eviction notice issued on 9 March 2020 and subsequent demolitions of February 2021, alleging violations of rights to life, dignity, property, housing, information, fair administrative action, and the rights of children and the elderly. Kenya Railways cross-petitioned, claiming the land was the Kibos Railway Station Reserve (L.R. 31937) vested in it by the 1963 regulations and 1986 vesting order, asserting the residents were trespassers. The court found the colonial government granted the Nubian community lifetime licences in 1937/1938 over alienated Crown Land L.R. 655, and that land alienated before 1963 did not vest in Kenya Railways since the vesting instruments applied only to un-alienated land. The petitioners therefore held protectable property rights, and the eviction - carried out despite a subsisting conservatory order and in breach of sections 152B and 152C of the Land Act - violated numerous constitutional rights. The court granted declarations against the 1st and 4th respondents, awarded costs against them, but required the petitioners to file a separate suit for compensation.

Key legal issues

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01

Whether the petitioners had protectable rights over the disputed Kibos land

Holding

Yes - the petitioners hold a long-term lifetime licence granted in 1937/1938 which is a property right under Article 40

Reasoning

The court found as indisputable fact that the colonial government settled the Nubian community at Kibos in 1937/1938 under agreements granting licences for the licensees' lifetimes. Such a long-term licence is a property interest capable of protection, so the petitioners were not illegal occupants and their deprivation of property without due process contravened Article 40.

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02

Whether the land vested in Kenya Railways Corporation under the vesting orders of 1963 and 1986

Holding

No - the land had been alienated Crown land since 1937, so the vesting instruments, applying only to un-alienated land, never covered it

Reasoning

The court held the disputed land was Crown land alienated by the governor in 1937 to the Nubian community. Legal Notice 440 of 1963 and the 1986 vesting order applied only to un-alienated land. Consequently the petitioners' land never formed part of the Kenya Railways land and the demolitions infringed their property rights.

p. 10
03

Whether the eviction and demolition procedures complied with the Land Act and the Constitution

Holding

No - the eviction breached sections 152B and 152C of the Land Act and violated Articles 35, 40, 43 and 47, as well as socio-economic rights of children and the elderly

Reasoning

A court order stopping the eviction was in place, and the statutory procedure requiring the National Land Commission to give at least three months' notice in the Gazette, newspapers and radio was never followed. The demolition destroyed homes, hospitals, mosques and schools, denying petitioners their socio-economic rights under Article 43 and fair administrative action under Article 47.

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04

Whether the state bears duties towards the petitioners' socio-economic rights

Holding

Yes - state organs must respect, protect, promote and fulfil Bill of Rights and must refrain from interfering with socio-economic rights

Reasoning

The court invoked Article 43 and the obligation of every state organ under Article 21 to observe and fulfil fundamental rights, holding that the state should refrain from interfering with, and should instead assist, the petitioners in the enjoyment of their socio-economic rights rather than demolishing their homes and social amenities.

p. 11

Legal principles established

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  • A long-term licence granted by the colonial government during the licensees' lifetimes is a property interest protected under Article 40 and cannot be taken away without due process
  • Land alienated before a vesting order does not vest under that order, since vesting instruments apply only to un-alienated land
  • Evictions must comply with sections 152B and 152C of the Land Act, including three months' notice by the National Land Commission; failure to do so violates fair administrative action

Court orders

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  1. 1.Declaration that forcible, violent and brutal eviction through demolition of homes without alternative shelter leaving residents exposed is a violation of the right to life under Article 26(1) and (3)
  2. 2.Declaration that the eviction was unconstitutional as contravening national values under Article 10(2)
  3. 3.Declaration that the eviction violated the rights to human dignity and security of the person under Articles 28 and 29(c), (d) and (f)
  4. 4.Declaration that the eviction violated the right of access to information under Article 35(1) and the right to protection of property under Article 40(1), (3) and (4) as read with Article 21(3)
  5. 5.Declaration that the eviction violated rights to housing, sanitation, health, freedom from hunger and clean water under Article 43(1) and the right to fair administrative action under Article 47
  6. 6.Declaration that the eviction violated rights to physical and mental health of the petitioners and their families
  7. 7.Declaration that the eviction violated children's rights under Article 53(1)(b), (c), (d) and (2) read with Article 21(3)
  8. 8.Declaration that the eviction violated elderly persons' rights under Article 57(b), (c) and (d) read with Article 21(3)
  9. 9.Declaration that forceful eviction and demolition without relocation is illegal and that petitioners are entitled to the property or compensation before relocation
  10. 10.Finding that petitioners are entitled to full compensation for loss suffered, but must file a separate civil suit for damages
  11. 11.Costs of the petition to be borne by the 1st and 4th respondents
  12. 12.Interested parties to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2(6), 10(2), 20, 21, 22(2)(a), 23(1), 26(1)(3), 27, 28, 29(c)(d)(f), 35(1)(2), 40(1)(3)(4), 43(1), 45(1), 47(1)(2), 50(1), 53(1)(b)(c)(d)(2), 57(b)(c)(d), 162(2)(b), 165(3)
  • Land Act 2012Sections 152B, 152C, 152D, 152E, 152F, 152G
  • Land Laws (Amendment) Act 201690-day eviction period and resettlement measures
  • Land Regulations 2017Reg. 63(1)(2), 66-69
  • Fair Administrative Action Act 2015Sections 2, 3, 4, 5, 6, 7, 10, 11, 12
  • Physical Planning Act (CAP 286)Development plans for Kibos Township
  • Government Land Actunalienated land
  • Kenya Railways ActSections 13, 14
  • Crown Land Ordinance 1915Sections 5, 51
  • Kenya (Vesting of Land) Regulations 1963 / Legal Notice No. 440 of 1963Vesting of railway land
  • Kenya Railways (Vesting of Land) Order 1986 / Legal Notice No. 24 of 1986Vesting of railway land
  • Vesting of Land Regulations 1963 (L/N440/1963)East African Railways Corporation
  • Universal Declaration of Human Rights
  • International Covenant on Economic, Social and Cultural Rights (ICESCR)
  • International Covenant on Civil and Political Rights
  • Maastricht Guidelines on Violations of Economic Social and Cultural Rights
  • UN Basic Principles and Guidelines on Development Based Eviction and Displacement (2007)
  • African Charter on Human and Peoples' RightsArticles 16, 18, 28
Jurisdiction invoked
Articles 22(2)(a), 23(1), 162(2)(b) and 165(3)(a), (b), (d)(i), (ii) of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fatuma Khamis Bilal & 3505 others v Kenya Railways Corporation & 6 others [2021] KEELC 2164 (KLR)", Case Analysis (2021). ELC Petition Case No. E004 of 2021 (consolidated with Petition No. 1 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2164/eng@2021-08-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.