Authored By: Mercy Angeline Nandi
The University of Nairobi
CASE CITATION AND BASIC INFORMATION
Full Case Name: Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)
Citation: [2021] KESC 34 (KLR)
Court: Supreme Court of Kenya at Nairobi
Date of Decision: January 11 2021
Bench Composition: David Maraga (CJ & P), Philomena Mwilu (DCJ & VP), Mohamed Ibrahim, Smokin Wanjala, and Njoki Ndungu (SCJJ)
INTRODUCTION
This landmark decision by the Supreme Court of Kenya addresses the enforcement of socio-economic rights, particularly the right to housing under Article 43(1)(b) of the Constitution of Kenya, 2010. [1]The case arose from the forced eviction of residents of Mitumba Village, situated near Wilson Airport, without provision for alternative accommodation. The case is of a great significance because it addressed the divergence between High court and the Court of Appeal regarding the use of structural interdicts, that is remedies where a court retains supervisory jurisdiction to ensure orders are implemented. The Judgment is also significant for clarifying the role of international law in domestic constitutional interpretation under Articles 2(5) and 2(6).[2] It marks a pivotal moment in the development of Kenya’s socio-economic rights jurisprudence and the protection of vulnerable communities from unlawful evictions by establishing that even without a formal title, long-term residents of informal settlements on public land possess a protectable interest that shields them from inhumane evictions.[3]
FACTS OF THE CASE
The petitioner, Mitu-Bell Welfare Society, was a registered society representing residents of Mitumba Village, an informal settlement located adjacent to Wilson Airport in Nairobi. The settlement included residential structures and Mitumba Village Primary School. On 15 September 2011, the Attorney General published a newspaper notice requiring the residents to vacate the premises within seven days. Despite the petitioner obtaining conservatory orders from the High Court to restrain demolition, the settlement was demolished on 19 November 2011. The residents were left without alternative accommodation, and the school was destroyed.
At the High Court, the petitioner sought declaratory reliefs asserting ownership of the premises and challenging the eviction as illegal, oppressive, and violative of constitutional rights. The Kenya Airports Authority (1st Respondent) argued that the land was theirs and that the settlement was located directly on a flight path, posing a significant air safety and national security risk, particularly given the regional conflict in Somalia at the time. The High Court held that the petitioner did not own the land, which belonged to the Kenya Airports Authority (KAA). However, the court found the seven-day notice unreasonable and unconstitutional, noting the absence of legislation or guidelines governing evictions. It held that the demolition violated the residents’ rights to housing, property, and socio-economic rights under the Constitution of Kenya, 2010. The court emphasized that evictions must follow due process, including reasonable notice and consultation, and highlighted the discriminatory nature of demolishing Mitumba Village while leaving nearby multi-storied buildings intact. The destruction of the school was found to infringe children’s right to education.
KAA appealed to the Court of Appeal, which overturned the High Court’s decision. The appellate court held that Pamoja Trust, a non-state actor involved in eviction guidelines, had no constitutional mandate to resolve disputes. It rejected the concept of partial or interim judgments, emphasizing functus officio once final judgment was delivered. The court further held that socio-economic rights could not confer proprietary rights over land, and that the realization of such rights did not override statutory provisions such as the Limitation of Actions Act. It concluded that the High Court had acted beyond its mandate by issuing orders on un-pleaded issues and dire
Aggrieved, the petitioner appealed to the Supreme Court. The appeal raised fundamental questions about the enforceability of socio-economic rights, the recognition of structural interdicts as remedies, the applicability of international law under Articles 2(5) and 2(6) of the Constitution, and the scope of housing rights under Article 43(1)(b). The case thus presented a critical opportunity for the Supreme Court to clarify Kenya’s constitutional framework on socio-economic rights and eviction practices.
LEGAL ISSUES
The Supreme Court identified the following principal issues for determination:
Structural Interdicts as Remedies
Whether structural interdicts, supervisory or interim orders requiring state compliance are recognized reliefs in human rights litigation under Article 23(3) of the Constitution. [4]Nature and Factors for Structural Interdicts: What considerations guide courts in issuing structural interdicts, including specificity, appropriateness, clarity, and avoidance of judicial overreach.
Applicability of International Law
The effect of Articles 2(5) and 2(6) of the Constitution on the domestic application of international law, particularly whether international human rights norms automatically form part of Kenyan law.
Status of UN Guidelines on Evictions
Whether the UN Guidelines on Evictions[5] and General Comment No. 7[6] constitute binding law in Kenya under Articles 2(5) or 2(6), or whether they remain “soft law” instruments.
Accrual of the Right to Housing
When the right to housing under Article 43(1)(b) accrues, and whether it is subject to progressive realization dependent on state resources and legislative measures.
Whether illegal occupation of public land creates prescriptive rights, and whether long-term occupation by landless communities generates a protectable right to housing under Article 60(1)(a).[7]
ARGUMENTS PRESENTED
PETITIONER/APPELLANT’S ARGUMENT
The petitioner, Mitu-Bell Welfare Society, argued that the forced eviction of Mitumba Village residents violated their constitutional rights under the 2010 Constitution. They emphasized Article 43(1)(b), which guarantees the right to accessible and adequate housing, and Article 21, which imposes a duty on the State to respect, protect, promote, and fulfill socio-economic rights. The demolition without alternative accommodation was said to be oppressive and unconstitutional.
The petitioner relied on international instruments, particularly the UN Guidelines on Evictions and General Comment No. 7 of the Committee on Economic, Social and Cultural Rights, to argue that evictions must be carried out in a manner consistent with human dignity.[8] They contended that these instruments formed part of Kenyan law under Articles 2(5) and 2(6) of the Constitution, which incorporate international law into domestic law.
They further argued that the High Court was correct in recognizing structural interdicts as appropriate remedies under Article 23(3). Such remedies were necessary to ensure effective enforcement of socio-economic rights, especially in contexts where vulnerable communities faced systemic violations. The petitioner maintained that the Court of Appeal erred in rejecting interim or supervisory orders and in holding that socio-economic rights could not confer protectable interests in land.
Finally, the petitioner stressed that the eviction was discriminatory, as nearby multi-storied buildings were left intact, and that children’s rights were violated by the demolition of the school. They urged the Supreme Court to affirm the High Court’s approach and to provide meaningful relief to the affected residents.
RESPONDENTS’ ARGUMENTS
The Kenya Airports Authority (KAA), supported by the Attorney General and the Commissioner of Lands, argued that Mitumba Village was situated on public land belonging to KAA. As the statutory custodian of airport safety, KAA had a duty to remove informal settlements located on flight paths, particularly given heightened security concerns following the war in Somalia. They contended that the eviction was necessary to protect public safety and national security.
The respondents challenged the High Court’s reliance on international guidelines, asserting that UN instruments such as General Comment No. 7 were not binding under Kenyan law. They argued that Articles 2(5) and 2(6) did not transform Kenya into a monist state, and that only ratified treaties or customary international law norms could be directly enforceable.
They further contended that socio-economic rights under Article 43 were subject to progressive realization and could not override statutory provisions or confer proprietary rights over land. Illegal occupation of public land, they argued, could not create prescriptive rights. The Court of Appeal was correct, in their view, to hold that the High Court had acted beyond its mandate by issuing orders on un-pleaded issues and directing policy formulation, which was not within judicial competence.
Finally, the respondents maintained that the doctrine of functus officio barred courts from issuing supervisory orders after final judgment. They warned against judicial overreach, emphasizing that policy formulation and resource allocation were matters for the executive and legislature, not the judiciary.
COURT’S REASONING AND ANALYSIS
1.Structural Interdicts as Remedies
The Court began with Article 23(3) of the Constitution, which empowers courts to grant “appropriate relief” for violations of the Bill of Rights. It emphasized that the list of remedies in Article 23(3) including declarations, injunctions, conservatory orders, compensation, and judicial review is not exhaustive.[9] Thus, structural interdicts, supervisory orders, and interim reliefs fall within the scope of “appropriate relief.” The Court criticized the Court of Appeal for shutting the door on such remedies, noting that this would stifle the development of Kenya’s human rights enforcement architecture. It clarified that functus officio, while valid in civil and criminal procedure, cannot limit constitutional courts from issuing supervisory orders necessary to protect fundamental rights. Comparative jurisprudence from South Africa, particularly Fose v Minister of Safety and Security,[10]supported this view.
The Court explained that structural interdicts must be specific, clear, effective, and directed at parties with constitutional or statutory mandates. Courts must avoid judicial overreach, particularly in policy matters, but may issue interim orders to ensure compliance with constitutional obligations. Such orders should be realistic and enforceable, designed to protect rights without usurping executive or legislative functions.
2.Applicability of International Law
Turning to Articles 2(5) and 2(6), the Court held that international law forms part of Kenyan law to the extent that it is relevant and not in conflict with the Constitution or statutes.[11] Article 2(5) incorporates general rules of international law, while Article 2(6) incorporates treaties ratified by Kenya. The Court rejected the Court of Appeal’s narrow interpretation that limited “general rules” to jus cogens norms, emphasizing that customary international law and treaties are broader sources. It clarified that these provisions do not transform Kenya into a monist state but require courts to apply international law where appropriate.
3.Status of UN Guidelines on Evictions
The Court distinguished between binding international law and “soft law.” It held that the UN Guidelines on Evictions and General Comment No. 7 do not constitute binding law under Articles 2(5) or 2(6).[12] They are interpretive aids that breathe life into treaty obligations under the International Covenant on Economic, Social and Cultural Rights. Courts may refer to them for guidance but cannot elevate them to binding norms unless they ripen into customary international law.
4.Accrual of the Right to Housing
The Court affirmed that the right to housing under Article 43(1)(b) is subject to progressive realization.[13] It requires the State to take legislative, policy, and programmatic measures, prioritizing vulnerable groups. Courts must demand evidence from the State when it claims resource constraints, but cannot substitute their own allocation decisions. Progressive realization does not mean indefinite postponement; rather, it requires demonstrable steps toward fulfillment.[14]
Finally, the Court held that illegal occupation of private land cannot create prescriptive rights. However, long-term occupation of public land by landless communities generates a protectable right to housing, derived from equitable access to land under Article 60(1)(a) which provides that all land in Kenya belongs to the people collectively. The Court drew parallels with Olga Tellis v Bombay Municipal Corporation,[15] where the Indian Supreme Court recognized the right to livelihood for pavement dwellers While such occupation does not confer title, it entitles residents to constitutional protection against arbitrary eviction. Courts may craft remedies such as compensation, adequate notice, humane eviction conditions, or provision of alternative law.
JUDGEMENT AND RATIO DECIDENDI
THE DECISION The Supreme Court partly allowed the appeal. It held that the Court of Appeal erred in rejecting structural interdicts and supervisory orders as remedies in constitutional litigation. However, it agreed that the trial court’s specific orders involving third parties (like Pamoja Trust) who were not parties to the suit were inappropriate. The Court remitted the proceedings back to the High Court with instructions to craft “appropriate reliefs” (such as compensation) based on the findings of rights violations.
RATIO DECIDENDI:
CONSTITUTIONAL REMEDIAL POWERS: Article 23(3) empowers courts to grant “appropriate relief,” which includes interim and supervisory orders necessary to enforce fundamental rights. The doctrine of functus officio cannot be applied rigidly to limit constitutional courts from ensuring compliance with rights protections.
INTERPRETATIVE ROLE OF SOFT LAW: the Court clarified that Articles 2(5) and 2(6) incorporate general rules of international law and ratified treaties into Kenyan law, but only to the extent that they are relevant and not in conflict with the Constitution or statutes. The UN Guidelines on Evictions and General Comment No. 7 were classified as “soft law” interpretive aids that courts may consult but not binding norms under Kenyan law.
HOUSING INTEREST ON PUBLIC LAND: the Court affirmed that the right to housing is subject to progressive realization, requiring demonstrable steps by the State to fulfill obligations. Illegal occupation of private land cannot confer rights, but long-term occupation of public land by landless communities generates a protectable right to housing, derived from equitable access to land under Article 60(1)(a).
In summary, Socio-economic rights under Article 43 are enforceable and justiciable. Courts may issue structural interdicts and supervisory orders as appropriate relief under Article 23(3). Occupants of public land, though lacking title, have a protectable right to housing that must be respected during evictions.
CRITICAL ANALYSIS
SIGNIFICANCE OF THE DECISION
The judgement finally resolved the tension regarding whether Kenyan courts can monitor their own judgments, firmly establishing that the doctrine of functus officio cannot be used as a shield by the state to avoid implementing socio-economic obligations. Furthermore, it provides a crucial legal foundation for the millions of Kenyans living in informal settlements, moving housing rights away from being purely dependent on land title. Because of this, state agencies can no longer carry out “midnight demolitions” without facing the possibility of court-monitored compensation and relocation schemes. The ruling forces the executive to be more transparent about its resource allocation, as courts can now issue interim orders demanding evidence of resource unavailability when the state claims it cannot fulfill a right. It effectively incorporates the “humane conditions” found in UN Guidelines into the standard for legal evictions in Kenya.
CRITICAL EVALUATION The Court’s reasoning is robustly protective of the vulnerable, successfully balancing the state’s need for security with the citizen’s right to dignity. A notable strength is the Court’s “inward and outward-looking” interpretation of international law, which avoids the pitfalls of strict monism or dualism while ensuring Kenya remains an active participant in global human rights standards.
However, a potential weakness or area of future controversy lies in the remittal of the case for the crafting of reliefs nearly a decade after the initial demolition. While legally sound, the delay in providing tangible “remedial benefit” to the original victims highlights the challenges of the judicial process in fast-moving social crises. Additionally, the Court’s warning against “judicial overreach” in policy matters suggests that while courts can monitor, they must remain “realistic” and avoid addressing orders to non-state actors, which may limit the efficacy of settlements in complex urban disputes.
CONCLUSION
The Supreme Court’s ruling in Mitu-Bell Welfare Society v Kenya Airports Authority firmly established that socio‑economic rights, particularly the right to housing, are enforceable and justiciable under the Constitution of Kenya, 2010. By recognizing structural interdicts as legitimate remedies and clarifying the nuanced role of international law, the Court strengthened judicial oversight of rights enforcement while balancing state security and resource constraints. Importantly, it acknowledged that long‑term occupation of public land by landless communities generates a protectable right to housing, compelling the State to ensure humane eviction processes and adequate safeguards. This decision thus reshaped Kenya’s constitutional landscape, reinforcing dignity and equitable access to land, and setting a precedent for future socio‑economic rights litigation.
REFERENCE(S):
- Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR).
- Constitution of Kenya, 2010.
- United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 7: The Right to Adequate Housing (Art. 11.1): Forced Evictions (1997.
United Nations Basic Principles and Guidelines on Development-Based Evictions and Displacement (2007).
Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC)
Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC).
Olga Tellis v Bombay Municipal Corporation [1985] Supp SCR 51.
[1] Constitution of Kenya 2010, Art 43(1)(b)
[2] Constitution of Kenya 2010, Arts 2 (5) and 2 (6)
[3]Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others [2021] KESC 34 (KLR
[4] Constitution of Kenya 2010, Art 23(3)
[5] United Nations Office of the High Commissioner for Human Rights, Basic Principles and Guidelines on Development-Based Evictions and Displacement (2007).
[6] UN Committee on Economic, Social and Cultural Rights, General Comment No 7 (1997).
[7] Constitution of Kenya 2010, Art 60 (1)(a)
[8]UN Committee on Economic, Social and Cultural Rights, General Comment No 7 (1997).
[9] Constitution of Kenya 2010, Art 23(3)
[10] Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC)
[11] Constitution of Kenya, 2010, Arts 2(5) and 2(6
[12] UN Committee on Economic, Social and Cultural Rights, General Comment No 7 (1997).
[13] Constitution of Kenya 2010, Art 43 (1) (b)
[14] Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC).
[15]Olga Tellis v Bombay Municipal Corporation [1985] Supp SCR 51.
