We have laws that are never enforced

Law that is never enforced is akin to a display object in a showcase, put there to shine and impress, but never used or useful.

For compliance comes most reluctantly from exactly those who made the law a necessity in the first place – people who are not behaving decently. Indeed, in one recent set of readers’ letters, a genuinely suffering tenant quotes from Greek philosopher Plato that: “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws”.

His own issue is that he regularly suffers raw sewage, rain water and debris falling into the offices and apartments in the Biashara Building in Mombasa that he rents.

He and his sub-tenants all appear locked into long term leases, making departure hard, and all the occupants vulnerable to legal action if they simple leave, yet they have suffered now a near lifetime of sewage entering their homes and work spaces via four building vents.

It’s a disgusting way to lead a life, and on the face of it, not the intent of the law.

But the law can truly be ignored when compliance isn’t enforced.

Many years ago, on Thigiri Ridge, my own company was among several that got hurt on the building’s change of use.

Today’s mall was once a school, which then closed and, for some years was rented out to a tenant and subtenants, all with handy office spaces in what were former classrooms. It was a good location, with ample parking, and competitive rents, and home to a small cluster of sub tenants in the end.

Until the landlord saw the potential of the space as a shopping mall. The decent way forward would have been to negotiate out a closure to each long-term tenancy and sub tenancy.

But he, instead, opted for a court order against the tenant for non-payment of rent, and had auctioneers on the gate and, on court order, seized every element of office equipment in the building, belonging, majorly, of course, to the subtenants.

It was a move that emptied the building in a week, and he had moved builders in within two weeks from there.

When the court case was finally heard, some months later, it found against the landlord, cleared the tenant of the charges, and the landlord was instructed to restore the seized goods, none of which, in fact, could be located.

And still, he had a gloriously emptied building. So it worked well for him. For the frustrated tenant in Mombasa, who now cites a row of rulings, most recently from Nema, demanding that the landlord resolve the problem, he faces apparent gridlock. The landlord claims he has resolved the matter. The tenants and subtenants claim he never has.

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And, thus, locked in years of legal wrangling, and an ever-widening circle of legal actions and complaints, now, too, against the Mombasa County for failing to achieve enforcement, those tenants sit in the sewage, and every ruling they get makes for a bigger pile of paper, and ever more letters back and forward saying the problem is, or is not, fixed.

But underlying these abuses lies a Kenya-wide issue: in that our stretched public resources fund few enforcement officers, and our courts rule, but don’t then enforce.

Imagine if there were, instead, a simple ‘proof of remedy’ hearing 30 days later, on every ruling based procedure, where the party ruled against had to prove, and I mean prove, not simply state, that the ruling had been applied – in that the injured parties confirmed it had been.

It would be transformatory. That Thigiri Ridge landlord would have done something to compensate those subtenants if he’d had to prove they had got their equipment back.

The Biashara House landlord might have done more about the vents, if a failure at proof of remedy had taken him to a higher order of punishment.

And we would save on enforcement officers everywhere, just with one simple act of shifting the burden of proof. In an environment where enforcement is nearly absent, adding proof of remedy behind rulings, would change our world.