Kenya Landmark Constitutional Court Case:Right To Housing

The case comes up for a cross-examination on 18th-April-2012.At High Court Nairobi,Court No 29.

HISTORY.

Muthurwa estate is located within the larger Kamukunji Constituency, along Haile selassie and Landhies road in land No 209/6502, a 72 acreage area, estate constructed in around 1911-14 for the workers of the then East African Railways and Harbors Company, until 1978 the estate was placed under the Kenya Railways Cooperation, which had a workforce of about 22,000 people, part of this group were residing in the 1786 housing units, for several years the estate has been neglected and dilapidated, each house measuring about 10 by 10 mtrs designed in rows of 24 houses each, all the railways estate are well planned with ample parking area, plinth area, social halls, playing ground a nursery school, a clinic, shops and restaurants, within the estate we have 15, four storey buildings adjacent , which currently are housing the Police officers from Kamukunji Police Station, the estate is the only estate nearest to Nairobi Central Business District(NCBD).

The estate is famous due to its achievements in international stardom countless medals have been bought to the country by the pugilists from Muthurwa estate, a majority of Kenya Boxing Team members come from this backyard some of the achievements came through participation in Olympics, Commonwealth Games, All African Games, Intercontinental games , Kings Cup tournaments and Inter clubs championships boasts of several land mark facility among them Shaffie Mosque which is gazzetted as a national monument, a police post, Muthurwa Dallas Social Hall and a multi-million Muthurwa market.

In 1998 the World Bank forced the government of Kenya to do Structural Adjustments Program (SAP) for its states cooperation KRC was one of the cooperation to undergo exercise, the railways management terminated their services based on Central Joint Council agreement (C.J.C) which heighten their work termination under regulation of wages and conditions of employment ACT CAP 229.The entire excise was marred with outright impunity, mega- corruption and professional thuggery. This process led to collapse of KRC and thus the issues of settling the workers dues whom were pensioners, retrenched, retired and retained workers arose, several court cases have been instituted to challenge this with no success since the process was marred by political interference of highest order. In May 2006 the government of Kenya established Kenya Railways Staff Retirement Benefits Scheme (KRSBRS) on a trust deed to cater for about 12,000 retires, retrenches and pensioners, some of the work force was deployed to Rift Valley Railways currently facing bankruptcy.

On 7th-September 2006 through gazette notice Legal Notice No 169, KRC transferred the estate to the Kenya Railways Staff Retirement Benefits Scheme (KRSBRS) along with other multimillion estates belonging to KRC to offset the accrued millions of depts owed to pensioners, retirees, and rentrenchees

Back ground Information:

In mid 2006 the Government of Kenya was faced by the numerous challenges related to creating alternative area for a major market, to relocate thousands of hawkers from NCBD. Through corruption the City Council of Nairobi through Ministry of Local Government coerced and bought 15 acres of land from the KRSBRS at a cost of 650 Million below market rate ( 1.725 Billion) noted later the correct value, this mega corruption also opened an avenue for Kenya Power & Lightning Company(KPLC) to buy another 1 acre next to market at a cost of 6.4Billion(KRSBRS 2008,Finacial Report by Delloite & Touche-Certified Public Accountants ) paid 125 million down payment.

 TYYhe government budget allocated 800 million for the construction of Muthurwa major market the fate of over 500 residents whom were within the earmarked were given a three days notice. Due to ignorance by the residents one hand and the City Council of Nairobi, Kenya Police and Ongata Construction Company on the other demolitions and evictions ensured, thousands of residents were left homeless. On 11th-Sep-2006 the President on his 2007 presidential bid launched the Muthurwa market project.

 In 2008 March Hon Uhuru Kenyatta the then Minister of Local Government, opened a multi million Muthurwa market, thousands of Nairobi hawkers benefited from this facility, meanwhile the community within Muthurwa estate was unable to access opportunities as stipulated in law with any government projects .It was noted also that from the initial 15 acreas of land bought for the market,the City Council of Nairobi grabbed an approximately 8 acres for the construction of a 660 meter tarmac road, exit of Muthurwa Bus Terminus.

Mean while when the Minister opened the market the issue of accessibility by thousands of eastlands Matatus to the terminus become an impediment to the success of the project, he engaged the KRSBRS which granted the Minister consent, he transverse the estate in line with the local leaders and directed for the construction of a feeder road 600 mtrs within the estate, residents submitted a complaint petition to Dept. Prime Minister, copied to Ongata Construction Company letter dated 20th May,2008.

 Architectural Association of Kenya, Chairman, Mr Gideon Mulyungi commenting about the feeder road stated that the negative social –cultural and environmental impacts to the residents of Muthurwa residents were very high(Daily Nation, March 28,2008 pg 3),Residents block terminus entry-Daily Nation last page 21st-March,2008,story and photo by Oliver Mathenge.

Transport Permanent Secretary Gerishon Ikaria asked the Transport Licensing Board to establish a bus service to serve the commuters from Muthurwa terminus to CBD, he directed all the 19 Eastlands routes vehicles to terminate their journey inside Muthurwa, this was done through Legal Notice No.37 of 20th-March,2008 City Council of Nairobi(Omni Bus Stations)Amendment by-laws 2008

A majority of residents are old former Kenya Railways Cooperation workers who had court cases such as directing them to reside within the estate, general tenants,disables,elder members of the community and children, thus the feeder road has caused numerous deaths health hazards to children and adults lung related deaths, lung failures, asthma, eyes nose mouth ailments

Meanwhile Kenya Railways Pensioners Association (KERAPA) an entity mandated to manage the estate tried all avenues to evict and terminate leases of those whom tried to challenge the illegal construction of the feeder road, request to Human Rights Organizations such as Kenya National Human Right Commission were not addressed and complaints from residents were informed that KNHRC does not investigate government projects nor eviction by state ,Case complaints reference 003-098(3) Dated 25th-March,2009

A 3 BILLION NAIROBI EAST COMMERCIAL PARK.

The proposed Nairobi East Commercial Park development commenced by the zoning and the plots sub-division plan indicated proposed developments such as shopping malls, high-class apartments, office blocks, petrol station, public toilets, parking silo and a police station. The park was to be provided with service roads (25m-wide) cabro paved pedestrian walkways.

In June 2010 KERAPA and a group of about 40 armed youths embarked in notifying the residents of intended demolitions in the entire 56 acres of land, houses were painted with bold red color X-DEMO which indicated the intended demolitions on 15th and 21st-July, 2010 both major newspapers had a public notices of the proposed developments namely Nairobi East Commercial Park mega project, in the advert the forced selling value for a quarter an acre went for Ksh 27 million (US$ 317,647.05) the entire estate was to fetch about 3 Billion(US$ 35,294,117.64) this is far below the market rate of 17 Billion the project was to be known as South East Commercial Park development.

The KRSBRS scheme and KERAPA embarked in tree logging in the estate, destroying some of toilets sewerage system, termination and disconnection of water, destroying the entire 56 acres perimeter fence and other amenities within the estate. As was the case since KRSBRS and KERAPA were in charge of the estate, residents have never known peace due to rampant evictions on frivolous grounds, tramped up arrears.

Community Organizing.

Following these directives of intended developments several key youths in the community embarked in looking for solutions among them was online campaigns highlighting the illegalities of the exercise, title of the campaigns.” Saving Kenya Railways Assets and Land” calling for halting of the exercise which was anticipated.

Night fundraising ensured each house hold was forcefully requested to pay Ksh 100, amoung the leaders was Patrick Kamotho whom later become the community chairman, secretary Benson Bwibo, a committee of 8 people was established which collected an estimated Ksh 18,000 the amount was used to cater for lawyers and mobilizing the resources.

Through financial assistance we were able to engage different Non-Governmental Organizations , Self Help Groups, activists from Bunge La Mwanainchi, Baraza La Taifa movements to strengthen and empower community in advocacy on Right to Housing, organizers in the community came up with modality of communicating, thus strategic areas in the estate were painted with a blackboard to inform and pass information on the progress done, calling for residents meetings, notifying the community on where there is a bereaved family ceremony (Matanga) notifying the community on bursary, Local Authority Transfer Funds (LATF funds) and Kazi Kwa Vijana short listings. Many other campaigns have been done by the residents committees such as requesting for renovations, equipping and upgrading of Muthurwa clinic through LATF meeting held at YMCA on 27th-10-2009.

Participated in Amnesty International petition to the government of Kenya on 15th Day of December 2009.

First residents resolved that each household must have a whistle for security reasons mainly frustrating evictees and thugs hired to demolish the estate, the meeting established several committees from the main committee to look into various issues such as security, clean-up, developments, mobilizing the community and fundraising committee.

Professor. Yash Pal Ghai a celebrated constitutional lawyer who has assisted in drafting 18 countries constitution including our own, he also served as a special representative of the United Nation Secretary General on Human Rights in Cambodia. On august 7th 2010 the Muthurwa community invited him to share ideas and support the community in their quest on access to adequate housing and access to safe water. He witnessed firsthand the tree logging and the ongoing demolitions and advised the community on the obligations of the government towards its citizenly, secondly he highlighted on various countries how they have achieved right to housing he referred the community towards legal entities and friends that could assist in mitigating the problem.

Through this intervention we were able to invite the Kituo Cha Sheria a national Non Governmental Organization geared towards empowering the less fortunate in the society in access to justice. The executive Director of Kituo Cha Sheria visited.

The community paid the mandatory minimal fee of Ksh 50 to open a file, after reviewing the magnitude of the issues raised by residents representative, Kituo Cha Sheria through Lawyer James Etemesi, Boniface and Anthony Kimaru embarked on instituting case No 365 0f 2010(Supervisory Jurisdiction and enforcement of fundamental rights and freedom of individuals) immediately stopping the ongoing evictions and demolitions, the orders were granted by Justice Kaplan Rawal. Despite the pending case the scheme and hired thugs continued felling the 846 trees within the estate. George Ododa a former KRC workers representative filed for the caveat emptor dated 12th-July, 2010 through Lands Department-Central registry.

Through this court cases interventions the community leaders have been involved in a number of activities that have advanced the plight of Kenyans to achieve the right to housing petitioned the Office of the President, Prime Minister, Attorney General.

Community participated in giving inputs on draft Evictions guidelines awareness forum held on 5th-April, 2011 at Muthurwa Dallas Social Hall.

PETITION No.65 of 2010

The Muthurwa residents instituted this court case to challenge the government of Kenya through the Attorney General, thee Kenya Railways Cooperation and Kenya Railways Staff Retirement Benefit scheme Article 43.1 (B) & 28 In the matter of articles 2 19,20,21,22,23,24,25,35,43,45,48,50,53,54 & 57,62 of Constitution Republic of Kenya and rule 11(C) & 12 (Protection of fundamental rights and freedoms of individuals)Practice and procedure rules.

The case also incorporates matter of Article 25 on the Universal declaration on Human Rights, Article 11 of International Covenant on Economic Social and Cultural Rights, Article 27 of International convention of the Rights of Children and Article 26 of the convention on rights of people with disabilities.