Ahmed Bashir Abdi v B.M. Mule, Garissa County Director of Housing the Ministry of Transport, Infrastructure Housing & Urban Development & 3 others [2022] KEELC 568 (KLR)
The bottom line
#A Garissa court ruled that evicting someone before a vacation notice expires is unlawful, awarding Kshs. 100,000 damages even to an occupant whose own allocation was irregular.
What this practically means
#Executive summary
#Key legal issues
#Whether housing is a devolved function
Housing is a shared (concurrent) function: the national government frames policy and the county governments implement it; assets devolve only where a proper transfer framework exists
The court read Article 43 (right to housing), Article 174 (objects of devolution), the Fourth Schedule and Article 186 together, concluding the Fourth Schedule places housing policy with the national government while county planning and development including housing sits with counties. Sections 35 and 37 of the Transition to Devolved Government Act and Legal Notice No. 45 of 2013 left asset transfer unresolved, so no full devolution of housing assets occurred.
Whether due procedure was followed in allocating House No. MWD/GSA/7 to the plaintiff
No. The house was allocated to Abdi A. Abdille, who handed it over to the County Director of Water Services; there was no evidence showing how it passed to the plaintiff
The court found the plaintiff moved into the housing unit during the transition period while it was still under the national Ministry of Housing. The only evidence of his entitlement was his 2017 appointment as a civil servant and check-off rent deductions, which contradicted his claim of allocation in 2015. The court therefore concluded the allocation lacked due process.
Whether the eviction was lawful despite the plaintiff's irregular occupation
The eviction was illegal, unlawful and un-procedural because the defendants evicted the plaintiff before the two-month notice expired
The defendants knew of the plaintiff's occupation since 2015 and had demanded rent arrears in 2016, acknowledging his occupation. The notice dated 16/11/2017 gave two months to vacate, creating a legitimate expectation that the plaintiff could challenge the eviction or relocate. Evicting him on 20/12/2017, before the notice matured, breached due process even though the plaintiff was properly an intruder.
Whether the plaintiff was entitled to damages
General damages of Kshs. 100,000/= awarded; special damages and injunctive/declaratory relief refused
The court found the eviction improper and the plaintiff entitled to general damages, assessing Kshs. 100,000/= as reasonable given the nature of the infringement. Special damages failed for lack of specific pleading and proof; the declaration failed because housing is a shared function; the injunction failed because the plaintiff had already been evicted.
Legal principles established
#- Housing is a function at both levels of government: the national government frames housing policy while county governments implement it
- Eviction must comply with due process, including allowing a notice of vacation to lapse before eviction; premature eviction is unlawful
- An occupant who acquired occupation without due procedure is an intruder, but this does not dispense with the need for a valid vacation notice once occupation is known and acknowledged
Court orders
#- 1.Declaration refused that public housing is a devolved function; housing held to be a shared function
- 2.Permanent injunction refused (plaintiff had already been evicted)
- 3.Claim for special damages dismissed as not specifically pleaded or proved
- 4.General damages of Kenya Shillings One Hundred Thousand (Kshs. 100,000/=) awarded to the plaintiff for the unlawful eviction
- 5.Costs of the suit awarded to the plaintiff
- 6.Interest on the general damages award and costs at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (the judgment does not cite a specific jurisdictional provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed Bashir Abdi v B.M. Mule, Garissa County Director of Housing the Ministry of Transport, Infrastructure Housing & Urban Development & 3 others [2022] KEELC 568 (KLR)", Case Analysis (2022). not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/568/eng@2022-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.