Eunice Opiyo & 11 others v The Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme & 2 others

(Suing on their own behalf and on behalf of Muthurwa Residents) VERSUS THE REGISTERED TRUSTEES OF THE KENYA RAILWAYS STAFF RETIREMENT BENEFITS SCHEME…………......…1ST RAILWAY CORPORATION…...……2ND RESPONDENT THE KENYA RESPONDENT HON ATTORNEY GENERAL……...………………...3RD RESPONDENT AND MILOON KOTHARI……………………………….INTERESTED PARTY RULING Brief Facts 1. The Notice of Motion Application dated 31 st March 2022 is seeking orders that the Commandant, Kenya Railways Police to be ordered to facilitate the eviction of illegal settlers of Muthurwa Estate in compliance with the court order issued on 6th January 2016 by the Honourable Justice Lenaola. CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 2

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2. In opposition to the Application, the 1 st 10th – Petitioners/Respondents filed a Replying affidavit dated 15th March 2024. The 1st Respondent’s/Applicant’s Case 3. The 1st Respondent’s supporting affidavit was sworn by Mr. James Kanyeki who deponed that he a is a trustee at the 1st respondent. He swore that on 6 th January 2016, a court order was issued by Justice Lenaola directing the Petitioners to vacate the suit premises on or before 30th April 2016 per the terms set out in the judgment dated 26th August 2013. 4. He thus deposed that in compliance with the said judgment, the 1st respondent is in the process of evicting the illegal settlers at Muthurwa Estate but the Commandant of Kenya Railways Police refused to facilitate the said eviction unless an express court order is issued directing him to do so. The 1st – 10th Petitioners/Respondents’ Case 5. In response, the Respondents depose that the applicant lacks locus standi to lodge an application in the manner that has been done in the instant case. That despite the fact that a court order was issued, it is erroneous for the deponent who is not versed and lacks capacity to swear the affidavit on behalf of the 1st respondent to misrepresent that there are illegal settlers. CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 3

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6. Further there has been no declaration that the occupants or residents of Muthurwa are illegal settlers. Further, that eviction should be preceded by a lawful process as required under the law. 7. The respondents contend that the 1 st applicant has failed to take into account the manner the judgment delivered by Justice Lenaola on 26th august 2013 intended to have the eviction carried out. That the 1 st applicant does not disclose what measures it has put in place in compliance with the said judgment which has neither been reviewed or set aside. Further, the 1st applicant has solely made reference to the ruling delivered on 18/12/2015 which only ordered for vacating of petitioners but not eviction. 8. The respondents argued that the intended eviction by the 1st applicant defeats social protection and is likely to render them and the residents they represent homeless and violating their right under Article 43 of the Constitution. Further the respondents disclosed that the estate has over 7000 residents and the land on which the residents occupy is about 56 acres and therefore any eviction would have far reaching social ramifications on the residents and their families. Additionally, there are elderly, sick and young children who reside on the property and if evicted, they are likely to be affected adversely and the social economic ramification shall have reaching effects to them. CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 4

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9. The respondents disclose that there is an ongoing case relating to the estate in HCC Civil Case No. 239 of 2009 George Ochieng Ododa & Others vs Kenya Railways & Staff Retirement Benefit Scheme which relates to the intended eviction by the 1st applicant and there are in place orders barring them from undertaking this particular action. The respondents argue that the court is clothed with wide discretion to see to it that justice is done for the parties and in realization of Article 159(2)(c) of the Constitution it could direct that parties explore alternative dispute resolution processes including court annexed mediation which could provide an opportunity for the parties to resolve the dispute amicably and in good faith. 10. The Parties filed written submissions. The 1st Applicant Submissions. 11. The 1st applicant identified one issue for determination which is whether an order should issue directing the officer in charge Railways Police Station to effect the court order issued on 6th January 2016. The 1st applicant argued that the Honourable Court rendered an unchallenged ruling for the illegal settlers at Muthurwa to be evicted. The 1st applicant relied on the case of Basil Criticos vs Attorney General & 2 Others [2016] eKLR and submitted that Justice Lenaola while listening to an application regarding eviction of illegal settlers disregarded their prayers and gave the following ordersCONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 5

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a) The following are the orders that I deem from the foregoing, to be appropriate under Article 23(3) of the Constitution. b) Let the applicant identify all such invaders and trespassers on all his properties in Taveta and report the same to the Officer Commanding Police Division Taveta District for action in the usual manner. c) The Officer Commanding Police Division Taveta District upon receiving such report do effect the eviction orders by ejecting such invaders and trespassers out of all the applicant’s properties in Taveta and specifically LR. No.s 6731 and 6732 in Taveta District… 12. The 1st applicant argued that since all the current residents of Muthurwa Estate were found to be illegal settlers and order for them to be evicted issues, the court ought to grant the orders sought. The Respondents’ submissions 13. The respondents submitted that the order issued by Justice Lenaola (as he then was) directed that the person who were to vacate were the petitioners. There was no reference to illegal settlers. In any case, the 1 st applicant has not disclosed who an illegal settler is and what criteria was used to arrive at such a reference. The court is now urged to issue orders against undisclosed persons who are referred to as illegal settlers. Thus if this were to be granted then it would amount to a departure of the court CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 6

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from its earlier decisions to wit the judgment was delivered on 26th August 2013 and the ruling delivered on 18th December 2016. 14. The respondents argued that the 1st applicant whereas seeking to enforce the ruling delivered on 6 th January 2016 fails to make a full and candid reference to the nature of the orders issued. The amorphous framing of the orders issued would negate the rights provided under Articles 43 and 50 of the Constitution on the socio-economic rights and a fair trial on the part of the petitioners. The respondents further argued that the 1 st respondent is a body corporate that ought to have under a seal, authorised the deponent as a trustee to swear the affidavit yet that was never undertaken, thus the affidavit and application is defective. Further, the deponent failed to plead that he is either authorized or acting under whose authority. 15. The respondents distinguish the case of Basil Criticos relied on by the 1st applicant as in the present case, the court gave guidelines on eviction. The respondents reiterate that the court can give an opportunity to the parties to explore alternative dispute resolution processes under Article 159 (2)(c) of the Constitution particularly court annexed mediation. 16. The main issue for determination is whether the application has merit. CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 7

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Analysis and Determination 17. On 26th August 2013, this Honourable Court delivered its judgment in the following terms: a) It is hereby declared that the 1st respondent violated the petitioners’ rights to accessible and adequate housing contrary to Article 43 of the Constitution but limited to the manner in which the forced evictions from Muthurwa Estate was conducted on or about 12th July 2010. b) The 3rd respondent is directed to consider amendments to the Water Services Act of 2002 to bring it in line with the expectations of Article 43(1)(d) of the Constitution 2010. c) The 3rd respondent shall within 90 days of this judgment file an affidavit in this court detailing out existing or planned state policies and legal framework on forced evictions and demolitions in Kenya generally and whether they are in line with acceptable international standards. d) The 3rd respondent shall within 90 days of this judgment file an affidavit in this court detailing out the measures the government has put in place towards the realization of the right to accessible and adequate housing and to reasonable sanitation in Kenya as is the expectation of Article 43(1) (b) of the Constitution. e) Within 21 days of this judgment, a meeting shall be convened by the Managing Trustee of the 1st respondent together with the CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 8

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petitioners, where a programme of eviction of the petitioners shall be designed taking into account all the factors clearly outlined at paragraph 83 of this judgment; i. That at the time of eviction, neutral observers should be allowed access to the suit premises to ensure compliance with international human rights principles. ii. That there must be a mandatory presence of governmental officials or representatives including Nairobi County officials and security officers. iii. That there must be compliance with the right to human dignity, life and security of the evictees. iv. That the evictions must not take place at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and in fact preferably at the end of the school term or during school holidays. v. That no one is subjected to indiscriminate attacks. The agreed programme shall be filed in this court in any event within 60 days of this judgment. 18. Following the judgment and as ordered by the court, the petitioners and the 1st respondent held several mediation meetings on developing a programme of eviction. Unfortunately, they failed to agree upon a programme in terms of the aforesaid judgment. CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 9

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19. The 1st respondent then filed a Notice of Motion application dated 14th May 2014 seeking an order for settlement of the terms of judgement delivered on 26 th august 2013. The court before rendering its ruling noted that it was common ground that the 1 st respondent is the lawful owner of the suit premises and that the 1 st – 10th petitioners have lawfully been occupying the suit premises as tenants and each of them had been paying or was expected to pay rent for the houses they occupy until they received the eviction notice aforesaid. The court in considering whether it is just and equitable to evict the petitioners considering all the circumstances manifesting themselves in the case took into consideration a number of factors which included that the petitioners have been in occupation of the premises for a long time and the said occupation was once lawful. Further, the 1 st respondent is the lawful owner of the property and is entitled to the eviction of all the occupiers thereof but the eviction of some of the petitioners may render them homeless. The court then made the following orders; a) The petitioners are hereby ordered to vacate the suit premises on or before 30 th April 2016 in the terms set out in the judgment of 26th August 2013. b) The 3rd respondent shall provide information on the legislative and policy measures the State has undertaken on forced evictions and demolitions and realization of the right to accessible CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 10

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adequate housing and reasonable sanitation within 60 days failure to which the petitioners are at liberty to take such action as they deem fit. 20. The Court issued those orders on 18 th December 2015. Despite the very clear order that the ‘3rd respondent shall provide information on the legislative and policy measures the State has undertaken on forced evictions and demolitions and realization of the right to reasonable evidence accessible adequate housing and sanitation within days’ such was exhibited in the 60 instant no Application notwithstanding that it is now thirteen (13) years since the order was issued. 21. There was no information detailing the legislative and policy framework that the State has put in place to regulate forced evictions and demolition to advance constitutional rights to adequate housing and reasonable sanitation, and in regard to this particular case, it has not been demonstrated that necessary safeguards and measures have been put in place to ensure that the eviction to be conducted is in accordance with the aforesaid constitutional obligations. 22. It is therefore my considered view that prior to the Petitioner’s eviction being ordered, an integrated order, that includes all the components that were comprised in the order issued thirteen (13) years ago must strictly be complied with and thus partial or selective implementation CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 11

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of certain components alone while leaving out others is impermissible and cannot be sanctioned by this Honourable Court. 23. The Application is therefore declined and dismissed in its entirety. 24. I make no orders as to costs. Dated, signed and delivered virtually at Nairobi this 2nd day of July, 2026. …………………………………………. L N MUGAMBI JUDGE CONSTITUTIONAL PETITION NO. 65 OF 2010 – RULING PAGE 12

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