The Supreme Court of Kenya has addressed itself twice now on issues of the right to housing enshrined in Article 43 of the Constitution of Kenya 2010. In both instances, the court has given a decision relating to evictions and the progressive realization of socio-economic rights.
On 11th January 2021, the Supreme Court of Kenya gave its first ruling on socio economic rights in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae)  eKLR. The case was an appeal against the judgement of the Court of Appeal on the ground that, among others, the Court of Appeal did not interpret the concept of progressive realization of the right to housing as envisioned by Article 21 and 43 of the Constitution.
The Supreme Court addressed itself on four major issues, among them being the progressive realization of rights under Article 43 of the Constitution. The Respondents argued that the Appellants had no recognizable title to land from which they were evicted, therefore the right to housing could not accrue from an illegal occupation of land by the claimants. The court held that the right to housing accrues to every individual or family, by virtue of being a citizen, since it is guaranteed by the Constitution.
The Court further stated that progressive realization of rights depends on the availability of land and other material resources. It is the obligation of the State to prove that they lack resources to actualize the rights. That when the landless people occupy land and create ‘informal settlements’, it cannot be termed as illegal occupation of land. When the landless occupy public land and establish homes, they acquire a protectable right to housing over the land. The right to housing therefore crystallizes by virtue of a long period of occupation by people who have established houses and raised families on the land.
On 16th July 2021, the Supreme court gave a decision on a similar case between William Musembi and 13 Others v Moi Educational Centre Company Ltd & 3 Others  eKLR. The case was an appeal from the judgement of the court of appeal on eviction of the petitioners from City of Cotton and Upendo villages, and interpretation of the right to accessible and adequate housing provided under Article 43 of the Constitution of Kenya 2010. The Court addressed itself on three main issues, among them being the interpretation and application of the doctrine of progressive realization of rights under Article 21 of the Constitution of Kenya 2010.
The Court affirmed the holding by the Court of Appeal that it was the State’s responsibility to ensure that the rights under Article 43 of the Constitution are progressively realized. The Court further stated that the realization and protection of socio-economic rights does not extend to private persons, therefore the 1st Respondent was under no obligation to realize the Appellants’ rights. The only obligation that private entities have regarding socio-economic rights is a negative obligation to ensure that persons’ rights are not violated.
The Court thus made a distinction between a negative obligation not to interfere with socio-economic rights, and a positive obligation to realize those rights under the Constitution. It stated that the negative obligation extends to private persons, while the positive obligation only relates to the State and its agents.
Both decisions by the Supreme Court laid down the procedure and bare minimums to be adhered to when conducting evictions. The persons affected needed to be given notice and their rights, both individually and collectively, under the Constitution of Kenya adhered to.
Concern is however drawn to the application of public participation and alternative settlement when conducting evictions. The Mitubell decision intimated that ALL persons have the right to housing since land in Kenya, under the Constitution, belongs to ALL PERSONS. Obligations relating to realization of rights under the Mitubell case could be seen to extend to both private entities and the State. The most recent case states that private entities only have an obligation not to interfere with socio-economic rights of citizens.
By Kehonji Teresa
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