Residents of Kibos in Kisumu county salvage their properties after their house were demolished by the Kenya railways on February 6th 2021. [Collins oduor, Standard]
The minority Nubian community has a reason to smile after an appellate court in Kisumu dismissed Kenya Railways appeal that would have left them landless and homeless.
In a judgment delivered by justices Asike Makhandia, Luka Kimaru, and Hellen Omondi, the appellate court established that the respondent’s right to housing was violated as their houses were demolished without considering their welfare.
“By destroying the respondents’ houses, churches, and schools, the appellant denied the respondents’ socio-economic and cultural rights under Article 43 of the Constitution of Kenya 2010,” the judgment read in part.
The judges who upheld high court’s justice Antony Ombwayo’s judgment dismissed Kenya Railway’s appeal saying that the contention that the judge did not analyze evidence lacked merit.
“We did not detect any error in law or on the application of legal principles on the part of the learned judge, as to warrant interference with his decision,” the judges ruled.
According to the appellate court judges, Kenya Railways failed to demonstrate that it suffered any prejudice or a miscarriage of justice.
They held that the trial court considered all relevant facts and points of law urged by the parties.
Justices Makhandia, Kimaru, and Omondi established that the statutory procedure for evictions was not followed and that the respondents were not given sufficient notice.
“In any eviction, forcible or otherwise, adequate and reasonable notice should be given,” the judges said.
They pointed out that respect for human rights, fairness, and dignity in carrying out the eviction should be observed, and the constitutional and statutory provisions on fair administrative action adhered to.
Moreover, the appellate court cited legal provision for an eviction from public land as provided for in Section 152G of the Land Laws Amendment Act 2016.
The section states that any evictees from public land should be notified in writing, by notice in the Gazette, and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction.
Kenya Railways had filed an appeal against six respondents from the Nubian Community where they wanted to court to dismiss the high court judge’s judgment over claims that his judgment did not analyze evidence and lacked merit.
It maintained that the demolitions were legal after notices had been duly issued and published in the daily newspapers, and were undertaken by a multi-agency operation team comprising National Government Administration Officers, the Presidential Delivery Unit, the National Police Service, and Kenya Railways officers.
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In 1937, the colonial government moved the Nubian community to occupy the disputed land which they have remained in possession of to date.
The government under the Physical Planning Act (CAP 286), the Ministry of Lands in 2012 formally recognized the Kibos Township and prepared Development Plans for the area.
The Ministry of Lands had issued a notice for completion of the Development Plans under the Physical Planning Act and invited all interested persons to submit any objections to the Development Plans within 60 days from the October 23, 2012.
According to the judgment, Kenya Railways Corporation did not submit any objection to the Development Plans of Kibos Township, nor did the Ministry of Lands, or Kisumu County Government have any objection to the Nubian community being allocated the land.
On February 13, 2015, the Director of Physical Planning put a notice in the Nation Newspaper on the formalization of Kibos Informal Settlement Upgrading Scheme.
Through the formalization process of the Kibos settlement, Kibos settlement was to get letters of allotment awaiting a community Land Title Deed.
The respondents include Fatuma Khamis Birah, Rashid Sadi Kemis, Kadmala Ahmed, Rukia Khamis, Noor Rajab, and Michael Odhiambo who are members of the Nubian community, who claimed to have been in occupation of the disputed land parcel Kibos Informal Settlement within since 1937 after being moved from Old Kisumu.
After the demolition of their homes, Birah, Sadi, Ahmed, Khamis, Rajab and Odhiambo filed two petitions before the Kisumu Environment and Land Court on their own behalf as well as 3, 500 other residents of Kibos Settlement.
They had alleged to have been forcibly and violently evicted from the land and their houses demolished by the Kenya Railways.
The community has since vowed to sue for compensation of the damages meted on the community.
