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Supreme CourtPartially AllowedPetition 3 of 2018

Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others

Supreme Court of Kenya
11 January 2021
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki Ndungu
20,783 words in judgment
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AI-assisted case brief
·~83 min to read original · ~4 min brief

The bottom line

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Kenya's Supreme Court ruled that landless people on public land can claim housing rights, not land ownership.

What this practically means

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The Supreme Court of Kenya decided that people who live on public land without permission can still have a right to housing under the Constitution. This right does not give them ownership of the land, but it protects them from being evicted without proper procedures. The Court also said judges can order creative solutions, like requiring the government to provide alternative housing, to enforce these rights. International guidelines on evictions can help Kenyan courts interpret the law, but they are not automatically binding.

Executive summary

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This appeal arose from the eviction and demolition of Mitumba Village, an informal settlement near Wilson Airport, Nairobi. The High Court (Mumbi Ngugi J) found that the eviction violated the residents' constitutional rights and issued interim orders requiring the respondents to provide state policies on housing and to engage with third parties to find a resolution. The Court of Appeal set aside the High Court's judgment, holding that the trial court had abdicated its judicial function, become functus officio, and issued orders on unpleaded issues. The Supreme Court, exercising jurisdiction under Article 163(4)(b) on certified questions of general public importance, partially allowed the appeal. The Court held that Article 23(3) of the Constitution empowers courts to issue structural interdicts and supervisory orders as appropriate reliefs in human rights litigation, and the functus-officio doctrine must give way on a case-by-case basis where necessary to enforce rights. On international law, the Court clarified that Article 2(5) and (6) does not transform Kenya into a monist state; the phrase 'general rules of international law' refers to customary international norms including jus cogens, and UN Guidelines like General Comment No 7 are soft law that may be used as interpretative aids but are not binding. On the right to housing, the Court held that where the landless occupy public land and establish homes, they acquire a protectable right to housing, though not title to the land. The Court remitted the matter to the High Court for crafting of appropriate reliefs, noting that compensation would be the most effective remedy given the eviction had already occurred. No order was made as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What is the place of Structural Interdicts (if any) as forms of relief in human rights litigation under the Constitution?
  2. 2.What is the effect of article 2(5) and 2(6) of the Constitution regarding the applicability of international law in general and international human rights in particular?
  3. 3.To what extent are Guidelines by UN bodies relevant in the interpretation and application of Socio-Economic Rights by Kenyan courts under the Constitution?
  4. 4.Under what circumstances may a Right to Housing accrue (if at all) in accordance with the provisions of article 43(1)(b) of the Constitution?

Key legal issues

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01

What is the place of Structural Interdicts as forms of relief in human rights litigation under the Constitution?

Holding

Structural interdicts and supervisory orders are permissible under article 23(3) of the Constitution, which grants the High Court power to grant appropriate relief including interim orders. The functus-officio doctrine must give way on a case-by-case basis where such orders are necessary to enforce a right, but the orders must be specific, clear, effective, and directed at parties or state agencies with a mandate to enforce them.

Reasoning

The Supreme Court examined article 23(3) and its own precedent in Communications Commission of Kenya v Royal Media Services, where it had issued interim orders requiring the CAK to take specific actions within timelines and to report back. The Court held that the Court of Appeal erred in categorically stating that partial judgment or interim judgment is unknown to Kenyan law. While the functus-officio doctrine retains validity, it ought to give way in certain situations to allow courts to enforce human rights. However, such orders must be carefully crafted, not vague, and not directed at third parties without a constitutional or statutory mandate.

p. 34
02

What is the effect of article 2(5) and 2(6) of the Constitution regarding the applicability of international law?

Holding

Article 2(5) and (6) does not transform Kenya from a dualist to a monist state. The phrase 'shall form part of the law of Kenya' means that courts must take cognizance of international law and apply it where relevant and not in conflict with the Constitution, statutes, or a final judicial pronouncement. The words 'general rules of international law' in article 2(5) refer to customary international norms, including jus cogens, not to all rules of international law.

Reasoning

The Court traced the historical use of the phrase 'part of our law' in English and American jurisprudence, noting it was first embraced by dualist states. It distinguished between the outward-looking commitment of the State to international obligations and the inward-looking requirement for courts to apply international law as a source of law. The Court rejected the Court of Appeal's view that 'general rules of international law' refers only to jus cogens, holding that it encompasses the whole corpus of customary international law. However, UN Guidelines like General Comment No 7 are soft law, not general rules of international law, and are not binding under article 2(5) or (6), though they may be used as interpretative aids.

p. 36
03

To what extent are Guidelines by UN bodies relevant in the interpretation and application of Socio-Economic Rights by Kenyan courts?

Holding

UN Guidelines such as General Comment No 7 are soft law and do not qualify as general rules of international law under article 2(5) or as part of a treaty under article 2(6). However, courts may refer to them as interpretative tools to breathe life into the Bill of Rights, particularly article 43, and to fill lacunae in domestic law regarding evictions.

Reasoning

The Court noted that the UN Guidelines were issued pursuant to article 21 of the ICESCR and are intended to assist states parties in implementing the treaty. They are not binding on states parties nor part of the law of Kenya under article 2(6) unless they have ripened into customary international law. However, the trial judge was not wrong to refer to them as an aid in interpreting the right to housing and dignity, and in fashioning appropriate reliefs. The Court of Appeal's criticism of the High Court for relying on the Guidelines was unfounded, as the Guidelines are not inconsistent with the Constitution.

p. 39
04

Under what circumstances may a Right to Housing accrue in accordance with article 43(1)(b) of the Constitution?

Holding

The right to accessible and adequate housing accrues to every person by virtue of citizenship, not upon proof of title to land. Where the landless occupy public land and establish homes, they acquire a protectable right to housing over that land, though not title to the land. This right derives from the principle of equitable access to land under article 60(1)(a) of the Constitution.

Reasoning

The Court distinguished between private land and public land. Illegal occupation of private land cannot create prescriptive rights. However, public land belongs to the people of Kenya collectively, and every individual has an interest in it. The right to housing over public land crystallizes through long occupation and establishment of homes. The Court held that the right to housing need not be predicated on title to land, as that would condemn the landless to perpetual indignity. Where eviction is justified in the public interest, courts may craft orders to protect the right, such as compensation, adequate notice, humane conditions, or alternative land.

p. 41

Legal principles established

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  • Courts can issue flexible orders, like requiring government action, to enforce human rights, even after a case seems closed.
  • International customary law is part of Kenyan law, but UN guidelines are only tools for interpretation, not binding rules.
  • The right to housing under Article 43 applies to anyone who has established a home on public land, even without title deeds.
  • Kenya remains a dualist state; international treaties only become law if Parliament adopts them, but courts must consider them.
  • Evictions from public land must follow fair procedures and consider the residents' housing rights, not just the government's ownership.

Court orders

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  1. 1.The appeal dated February 5, 2018 is hereby partially allowed.
  2. 2.These proceedings are hereby remitted to the trial court, with instructions that appropriate reliefs be crafted and granted in accordance with this Judgment and the pleadings at the High Court.
  3. 3.We make no orders as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 218 of 2014
Jurisdiction invoked
Article 163(4)(b) of the Constitution – certification as a matter of general public importance

Relief refused

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Declaration that the respondents violated the appellants’ constitutional rights under articles 26, 27(2),(4) & (6), 28, 29, 39, 40, 43, 47 & 56 as determined by the High Court

The Supreme Court did not revisit the factual findings of the High Court or Court of Appeal on the violation of rights; it only answered the four certified questions of law.

p. 42

An order quashing the judgment, orders and decree of the Court of Appeal and affirming the judgment, orders and decree of the High Court

The Supreme Court partially allowed the appeal but remitted the matter to the trial court for crafting of appropriate reliefs, rather than affirming the High Court judgment.

p. 42

An order remitting this matter to the High Court with directions that that court monitor compliance by the respondents with the orders and directions issued by the High Court on April 11, 2013

The Supreme Court agreed with the Court of Appeal that the High Court's post-judgment directives involving non-state actors were inappropriate.

p. 42

An order awarding costs to the appellants

The Supreme Court made no order as to costs.

p. 42

Costs

We make no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

article 23(3) of the Constitution empowers the High Court to fashion appropriate reliefs, even of an interim nature, in specific cases, so as to redress the violation of a fundamental right.
p. 34 Structural interdicts and supervisory orders under article 23(3)
the words general rules of international law in article 2(5) of the Constitution refer to customary international norms, including jus cogens.
p. 38 Interpretation of article 2(5) – general rules of international law
where the landless occupy public land and establish homes thereon, they acquire not title to the land, but a protectable right to housing over the same.
p. 41 Right to housing over public land without title
article 2(5) and (6) of the Constitution has nothing or little of significance to do with the monist-dualist categorization.
p. 36 Monist-dualist debate under the Constitution
there is nothing wrong in a court of law making reference to the Guidelines as an interpretative tool aimed at breathing life into article 43 of the Constitution.
p. 39 Use of UN Guidelines as interpretative aids
The appeal dated February 5, 2018 is hereby partially allowed.
p. 42 Final orders – outcome of the appeal
These proceedings are hereby remitted to the trial court, with instructions that appropriate reliefs be crafted and granted in accordance with this Judgment and the pleadings at the High Court.
p. 42 Final orders – remittal to High Court
We make no orders as to costs.
p. 42 Costs order

Key timeline

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2018-02-05
Appeal filed by Mitu-Bell Welfare Society against the Court of Appeal decision.
2021
Supreme Court delivers judgment, partially allowing the appeal and remitting the case to the High Court.

Practical implications

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For lawyers

Structural interdicts now available

When litigating human rights cases, especially on housing, ask the High Court for a structural interdict or supervisory order under Article 23(3). The Supreme Court confirmed these are permissible even if the court has already issued a final judgment. Draft the order with specific timelines and responsible state agencies to avoid vagueness challenges.

For businesses

Public land development risks

If you plan to develop public land, conduct due diligence on any informal settlements. The Supreme Court held that occupants may have a protectable housing right, even without title. Evictions require court orders and alternative accommodation. Factor in potential delays and compensation costs when assessing project timelines and budgets.

For individuals

Housing rights on public land

If you live on public land without a title deed, you still have a constitutional right to housing under Article 43. The government cannot evict you arbitrarily. You can ask a court to order the government to provide alternative housing or follow a fair eviction process. However, this does not give you ownership of the land.

Frequently asked questions

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Does living on public land in Kenya give me ownership rights?+

No. The Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority ruled that occupying public land gives you a protectable right to housing, but not ownership or title to the land. You can challenge evictions, but you cannot claim the land as your own.

Can Kenyan courts order the government to build houses for evicted people?+

Yes. The Supreme Court confirmed that courts can issue structural interdicts under Article 23(3) of the Constitution. This means a judge can order the government to provide alternative housing or take specific steps within a set timeline to enforce your right to housing.

Are UN guidelines on evictions binding in Kenya?+

No, they are not binding. The Supreme Court said UN General Comment No 7 is soft law and does not automatically become part of Kenyan law under Article 2(5) or (6). However, courts can use them as a guide to interpret the right to housing and fair eviction procedures.

What is a structural interdict in Kenyan law?+

A structural interdict is a court order that requires a government body to take specific actions, like providing housing, and report back to the court by a certain date. The Supreme Court in Mitu-Bell confirmed that Kenyan courts can issue these orders to enforce human rights, even after a final judgment.

Later judgments citing this (25)

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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, "Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others", Case Analysis (2021). Petition 3 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/34/eng@2021-01-11

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