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ELCPartially AllowedConstitutional Petition (Kisumu)· [2022] KEELC 2524 (KLR)

Musa & another (Suing on their own behalf and on behalf of two hundred and two affected residents of Shaurimoyo, Swahili Village and Bondeni Informal Settlements of Muhoroni Sub-county in Kisumu County) v Kenya Railways Corporation & 2 others (Constitutional Petition E020 of 2021) [2022] KEELC 2524 (KLR)

Environment and Land Court
15 July 2022
7,163 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that demolishing 206 families' homes without notice or consultation violated their rights, awarding each Kshs 100,000 but rejecting unproven property claims.

What this practically means

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Executive summary

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The 206 petitioners, residents of Shaurimoyo, Bondeni and Swahili villages in Muhoroni Sub County, Kisumu County, petitioned over demolitions of their homes, businesses, a church, a cooperative plant and a pre-unit school carried out on February 6, 2021 between 2.00pm and 7.00pm in a multi-agency operation involving earth movers and over 50 police officers. They sought declarations that their rights under articles 10, 25, 26, 27, 28, 29(f), 39, 40, 43, 47 and 56 were violated, an order compelling the 1st respondent to craft a Relocation Action Plan, compensation, damages and costs. They relied on the KISIP tenure regularization process, gazetted Part Development Plans and titles being processed for their plots. The 1st respondent, Kenya Railways Corporation, asserted that the plots fell within its railway station area and operational corridor, that KISIP never consulted it, that lawful notices were served, and that the demolitions lawfully reclaimed encroached railway land. Ombwayo J framed two issues: whether the petitioners' rights were violated and whether damages were payable. The court found the only notice relied on dated from 2019 and not prior to the demolitions, that no genuine consultation occurred and no Relocation Action Plan was made, violating the right to housing. The 1st respondent, having failed to object to the gazetted PDPs, could not impeach them by affidavit. Special damages of Kshs 190,746,639/= failed for want of documentary proof, but each petitioner was awarded Kshs 100,000/= general damages, aggregating Kshs 20,600,000/=. Costs were awarded to the petitioners against the respondents.

Key legal issues

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01

Whether the petitioners' rights were violated by the demolitions of February 6, 2021

Holding

Yes. The demolitions were carried out without notice prior to the evictions, without genuine consultation, without a Relocation Action Plan, and from 2.00pm to 7.00pm without consent, violating the petitioners' right to housing and related Bill of Rights provisions.

Reasoning

The court applied the procedural protections for forced evictions from General Comment No 7 and the Ibrahim Sangor Osman case. The only notice relied on by the 1st respondent was issued in 2019, not prior to the February 2021 demolitions. No consultation or Relocation Action Plan preceded the evictions, leaving residents homeless, and legal remedies and compensation were not afforded, establishing violations of the right to housing and related rights.

p. 14
02

Whether the 1st respondent could challenge the validity of the PDPs and Gazette Notices after failing to object during the KISIP process

Holding

No. Having had an opportunity through the advertised PDP process and gazette notices to object and failing to do so, the 1st respondent could not defeat the process by affidavit evidence.

Reasoning

The gazette notices invited written representations or objections to the PDPs. The 1st respondent raised no objection yet later claimed it was never consulted and challenged the PDPs' validity. The court held it ought to have raised objections to the upgrading process if it supported KISIP, and that challenging the process by affidavit rather than the requisite legal channels was improper.

p. 3
03

Whether the petitioners are entitled to special damages of Kshs 190,746,639/= for destroyed property

Holding

No. Special damages was not proved; the itemization of losses was uncorroborated by receipts, invoices, bank statements or other evidence of ownership or value.

Reasoning

Although a professional valuer arrived at a figure of Kshs 200,156,324/=, the court agreed with the 1st respondent that the computer-generated and handwritten itemization lacked evidence proving ownership of the documents or the values claimed. Special damages must be strictly proved, and no documentary support was produced.

p. 15
04

Whether general damages should be awarded for the constitutional violations

Holding

Yes. Each of the 206 petitioners was awarded Kshs 100,000/=, an aggregate of Kshs 20,600,000/=, as reasonable general damages for the breaches.

Reasoning

Guided by Siewchand Ramanoop, Gitobu Imanyara (citing Dendy) and Zipporah Seroney, the court held that a declaration alone would be insufficient and that compensation serves to vindicate infringed rights. Considering comparable awards as the best guide, the court found the aggregate of Kshs 20,600,000/= sought by the petitioners to be reasonable in the circumstances.

p. 16

Legal principles established

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  • Forced evictions must comply with procedural protections including genuine consultation, adequate and reasonable notice prior to the scheduled date of eviction, and evictions should not take place at night or in bad weather without consent.
  • Demolition of homes without notice and without considering the welfare of occupants violates the right to housing and associated socio-economic rights under article 43 of the Constitution.
  • A body that had the opportunity to object to gazetted Part Development Plans but failed to do so cannot later challenge their validity by affidavit evidence alone.
  • Special damages must be specifically pleaded and strictly proved by documentary evidence such as receipts or invoices.

Court orders

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  1. 1.That this court finds and so declares that the respondents have jointly and severally been responsible for the denial/violation/infringement of the petitioner's rights and fundamental rights in the bill of rights under articles 10(2)(b), 25, 26, 27(1), 28, 29(f), 39, 40, 43(1)(f), 47 and 56 of the Constitution.
  2. 2.That the 1st respondent to engage the petitioners and all the Project Affected Persons in Shaurimoyo, Bondeni and Swahili villages in Muhoroni Sub County in crafting a Relocation Action Plan.
  3. 3.That each of the 206 petitioners be entitled to Kshs 100,000/= creating an aggregate of Kshs 20,600,000/= as general damages for breaches of their fundamental rights.
  4. 4.Costs of the petition be borne by the respondents.
Jurisdiction invoked
Original constitutional jurisdiction under articles 22 and 23 of the Constitution (enforcement of the Bill of Rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Musa & another (Suing on their own behalf and on behalf of two hundred and two affected residents of Shaurimoyo, Swahili Village and Bondeni Informal Settlements of Muhoroni Sub-county in Kisumu County) v Kenya Railways Corporation & 2 others (Constitutional Petition E020 of 2021) [2022] KEELC 2524 (KLR)", Case Analysis (2022). Constitutional Petition (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2524/eng@2022-07-15

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