- The idea behind the Kenyan Constitution was to make tenure rights equal, whether it is community, public or private land.
- The rules for this use and protection should thus be similar.
- It is thus not logical to argue that those on public land without title enjoy greater protection than those on private land.
On the last day of Chief Justice David Maraga, the Supreme Court not only sat and listened to a farewell case to confirm his retirement from the Judiciary, but also issued judgment in a unique case that was awaited by social justice actors across the country and even internationally.
That was in the case of Mitu-Bell Welfare Society versus Kenya Airports Authority and Others.
The case arose from an action of Kenya Airports Authority (KAA) to order for and evict the members of Mitu-Bell Welfare Society who were living in an informal settlement in a village near Wilson Airport.
The dispute revolved around the balance between the rights to property and the rights to housing.
The case was important for it gave the Supreme Court the opportunity to pronounce itself on socio-economic rights, an issue that before then had largely been decided based on the views of the constitutional court in South Africa.
Land eviction has recently reared its ugly head during the Covid-19 pandemic when the government forcefully moved some residents in Kariobangi in the middle of the night.
Despite changes to the Land Act a few years ago providing detailed procedure on how and when evictions can take place, incidents of adherence to these provisions have been few nd far between.
As the country turns its attention to the post-Covid period, revisiting how it deals with matters eviction is thus an important contribution from the Supreme Court.
When Kenya adopted the 2010 Constitution, one of the questions it needed to address was the security and protection of property rights. Too many Kenyans complained of having insecure rights to property, lacking title deeds for their or being landless.
Addressing rights to land and ensuring that whatever tenure regime the land was held, it was protected in law was a priority.
This explained the inclusion in Article 40 of the Constitution of the rights to property as part of the Bill of Rights. The courts have a responsibility to ensure that this right is protected.
When people who do not have rights to land invade another person's land and stay there without having the title to that land, that person is a squatter and an illegal occupier.
As part of protecting the rights to land, such people are strangers to that land and should be evicted. However, the question that this raises is what about their rights to housing?
This was the question in the Mitu-Bell case. The court in deciding this matter made a distinction between private land and public land, arguing that in private land such squatters require to be evicted. However, in public land, public interest requires a more delicate balance.
The decision of the case makes interesting reasoning on the relationship between housing rights and property rights.
The Supreme Court correctly points out that both rights are important in Kenya.
It then goes ahead to debunk the myth that has been long held that the enjoyment of the rights to housing is predicated on having a legal right to land.
In a country where many Kenyans are landless to tie their housing rights to land title would subject them to double jeopardy. Consequently, respecting and protecting housing rights is a distinct right and must be guaranteed by the State whether one has secure land rights.
The interesting decision, however, is the distinction the court makes between private and public land, arguing that the criteria for eviction is different if the land in question is public land.
The idea behind the Kenyan Constitution was to make tenure rights equal, whether it is community, public or private land. The rules for this use and protection should thus be similar.
It is thus not logical to argue that those on public land without title enjoy greater protection than those on private land.
What the Supreme court should have addressed is how to deliver on the rights to housing for those who are squatting on both public and private land.