Notes from a Foreign Field: The Kenyan Supreme Court on Land, Evictions, and Horizontal Rights

In January of this year, I had written about the Supreme Court of Kenya’s judgment in Mitu Bell, dealing with questions around evictions and the right to housing. Recall that the judgment in Mitu Bell was delivered in the context of public land, but its reasoning indicated the possibility of something more. In noting that under the 2010 Constitution, “all land in Kenya belongs the people of Kenya collectively as a nation, communities and individuals”, the Supreme Court created a conceptual distinction between a legal right to land (which would be determined by property law, in the normal course of things), and a constitutional interest in land, which was available to all. In using the phrase “all land”, the Supreme Court indicated that when it came to the question of constitutional interest, there was no difference between public land and private land. As I wrote at the time, “the constitutional interest in land would not always translate into a property right, but it would vest in the occupant a range of enforceable legal rights (for example, against eviction/to alternate accommodation/to reasonable engagement etc.), that the Court would articulate and vindicate, on a case to case basis.” And it would follow from the Court’s reasoning that this range of remedies would need to be available in cases of both public and private land.

Today’s judgment of the Supreme Court of Kenya in William Musembi vs The Moi Educational Centre Co. Ltd. takes the logic of Mitu Bell one step further. Petitioners were residents of two informal settlements within the county of Nairobi. It was their case that they had been occupying the land since 1968, when it had been public land. The cause of action arose out of a forced eviction at the instance of the Respondent in 2013; the Respondent claimed private ownership of the land, and was assisted by officers of the State in carrying out the forced eviction and demolition.

In the High Court, Ngugi J found a violation of the petitioners’ rights under to dignity, security, adequate housing, and a violation of the rights of children and elderly persons under the Constitution. She awarded damages. However, this judgment was partially set aside by the Court of Appeal. The Court of Appeal found that there had only been a violation of the rights to dignity and security, and set aside the order of damages. Petitioners appealed to the Supreme Court.

The arguments before the Supreme Court turned upon whether – and to what extent – the right to accessible and adequate housing could be applied inter se between private parties, as well as the State’s obligations in cases of eviction. These intertwined questions were summed up in paragraph 54 of the Supreme Court’s judgment:

“… we are tasked with the making of a determination on the rights of the Petitioners against those of the 1st Respondent; to determine whether the State took an active positive role in ensuring that the fundamental rights and freedoms of all the parties concerned in this instant matter were protected and that in so doing, there was no abuse of the rights of the parties and thus, that the State’s negative obligation not to abuse or violate these rights and fundamental freedoms was carried out.”

Relying upon Mitu Bell, the Supreme Court noted that even where landless people did not have title to land, they nonetheless acquired a “protective right to housing” through occupation (paragraph 56). The Court therefore held that as far as the State was concerned, the principles governing evictions that were set out in Mitu Bell applied to this case as well. And here, the facts that the eviction was violent, that it was done without a Court order, and that no notice was provided, were so evident that “even the man on the street” could tell that the Petitioners’ rights had been violated (paragraph 59).

The question then arose: to what extent was the First Respondent – the private party – also responsible for the violation of constitutional rights. In paragraph 64, the Court held:

… the mandate to ensure the realization and protection of social and economic rights does not extend to the 1st Respondent, a private entity. Even though the 1st Respondent has a negative obligation to ensure that it does not violate the rights of the Petitioners, it is not under any obligation to ensure that those rights are realized, either progressively or immediately.

The Court, thus, drew a distinction between a negative obligation not to interfere with socio-economic rights (such as the right to housing), and the positive obligation to (progressively) realise those rights. The former applied to both public and private parties, whereas the latter only applied to the State.

It is clear that the distinction between negative and positive obligations is doing a lot of work here. Without going into the voluminous literature on the normative and conceptual character of the distinction, a few remarks may be made. The first is that evictions certainly constitute interference with the right to housing. Thus, both the logic of Mitu Bell, and the reasoning in this case, indicate that private parties are bound by the principles governing eviction in the same manner as the State: that is, the requirement of notice, opportunity to salvage, prioritising the rights of the elderly and of children, and so on. However, there are two further questions: what of the rights to public participation and the right not to be evicted without the provision of alternative accommodation?

I would argue that both these rights are also applicable against private parties. Article 10 of the Kenyan Constitution states that “the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them … applies or interprets this Constitution.” According to Article 10(2)(a), participation of the people is one of the “national values and principles of governance” underpinning the Kenyan Constitution. Consequently, given that: (a) Article 10 applies to all persons, including private parties; (b) that evictions from public and private land involve constitutional rights, as held by the Supreme Court – and therefore involves “application and interpretation” of the Constitution; it therefore follows, (c) that principles of public participation – which, in the eviction context, translate into the concept of “meaningful engagement” – are applicable to private parties as well.

On the question of alternative accommodation, it may be pointed out that this is a classic example of a positive obligation, and therefore – in terms of the Supreme Court judgment – not binding upon private parties. In my view, however, a distinction must be drawn between the obligation to provide alternative accommodation, and the obligation not to evict until alternative accommodation is available. The former is indeed a positive obligation and – in terms of the Supreme Court judgment – not binding on private parties. The latter, however, is a classic non-interference obligation, as it is just another pre-condition for when you can evict (like notice, participation, a court order etc.). Indeed, as this case shows, evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land. It is thus not far-fetched to argue that it must follow from this judgment that if a private party proposes to evict people from private land, then it is for the State to take on the positive obligation of securing alternative accommodation before that eviction can take place: the relationship is, of necessity, a tripartite one.

My second point is that a blanket rejection of the application of horizontality to positive obligations may not, with respect, be correct. In Juma Musjid, the South African Constitutional Court initially adopted the same position, but then walked back from it in Daniels v Scribante, perhaps recognising that the distinction between negative and positive obligations is, at the end of the day, an artificial one. Indeed, in his concurring opinion in Daniels v Scribante, Froneman J. turned his attention to the existing property distribution regime, noting how property law was a tool to entrench a certain distribution of private property which, in itself, was the source of violations of rights. In Mitu Bell, the Supreme Court had gestured towards such an understanding as well, in noting that the 2010 Constitution guaranteed to all Kenyans an interest in all land, and thus – in a way – aimed at upending traditional legal regimes that depended on a sacralisation of property regimes. It is therefore my submission that in limiting horizontal socio-economic obligations only to the State, the Supreme Court did not take forward the logic of Mitu Bell to the extent that it was possible to do so.

Finally – and crucially – the Supreme Court upheld the High Court’s judgment on damages, noting that the discretion in awarding damages had not been improperly exercised. This issue is particularly important – if less discussed – as the only way in which constitutional rights can have teeth (especially in cases of this kind) is if their breach is met by effective remedies such as compensation. This is, of course, part of the long-standing tradition of “constitutional tort” in Irish Jurisprudence, and the Kenyan courts’ own jurisprudence since 2010.

William Musembi vs Moi Educational Centre is thus landmark discussion on the issue of evictions from private land, which involve the actions of both State and private parties. In many ways, it takes forward the important logic in Mitu Bell, and continues the welcome trend of judicial skepticism towards entrenched property rights (which are themselves, invariably, the outcomes of violence and dispossession). It will be important to see, however, how the Kenyan courts take forward its prescriptions in other concrete eviction cases, where other rights – such as meaningful engagement/participation have been violated.