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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petitioners' rights were violated by the demolitions of February 6, 2021
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.
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.
Whether the 1st respondent could challenge the validity of the PDPs and Gazette Notices after failing to object during the KISIP process
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.
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.
Whether the petitioners are entitled to special damages of Kshs 190,746,639/= for destroyed property
No. Special damages was not proved; the itemization of losses was uncorroborated by receipts, invoices, bank statements or other evidence of ownership or value.
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.
Whether general damages should be awarded for the constitutional violations
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.
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.
Legal principles established
#- 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
#- 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.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.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.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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.