Kenya Landmark Case:Right to Housing

[Patrick Kamotho]

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, the estate constructed in around 1911-14 for the workers of the then East African Railways and Harbors Company(EARHC), in 1978 (EARHC) was placed under the Kenya Railways Cooperation, which had a workforce of about 22,000 workers, part of this group were residing in the 1786 housing units in Muthurwa, 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.The railways estate are well planned with ample parking area, plinth area, social halls, playing ground a nursery school, police stations, clinic, shops and restaurants, within the Muthurwa estate there is 15, four storey building , which currently are housing the Police officers from Kamukunji Police Station and Railway police officers, 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 this locality, 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 late 1990s the World Bank forced the government of Kenya to do Structural Adjustments Program (SAP) for its states cooperation KRC was one of the cooperation that underwent the exercise, the railways management terminated thousands of its workforce services based on Central Joint Council agreement (C.J.C) which terminated their work under regulation of wages and conditions of employment ACT CAP 229.This entire excise was marred with outright impunity, mega- corruption and professional thuggery, in turn 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) gave it assets worth ksh 17 Billion on a trust deed to cater for 12,476 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 retrenches

Background 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.

National Budget.

The 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.

Hon Uhuru Kenyatta the then Minister of Local Government in 2008 March, opened the market which was still incomplete, thousands of Nairobi hawkers benefitted from this market, meanwhile the community from Muthurwa estate was unable to access opportunity to trade in as is the case 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.

Feeder road traversing the estate. 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 and local leaders such area Mp.Simon Mbugua and Area Councilor James Gakuya engaged the KRSBRS which granted the Minister consent, to allow the vehicles to transverse the estate a feeder road 600 mtrs within the estate was constructed, from then on the community was always up in arms over the manners of eviction residents had to contend with, 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

Court cases a majority of residents are former Kenya Railways Cooperation workers who had court cases directing them to reside within the estate till finalization of their cases, general tenants, disables, elder members of the community. Initially the rent was being paid to KRC hence afterwards to KRSBRS.

Rent Payment

Rent related issues in Muthurwa were theatric, a meeting held in Kenya Railways Staff Retirement Benefit Scheme( KRSRBS) office on 19th March,2009 between the community leaders, the board of KRSRBS and officials of Kenya Railways Pensioners Association(KERAPA) and Kenya Railways deputy Police officer, deliberated and discussed about the issues of rent payment in relation to the then proposed advertised lease of scheme houses dated January 15,2007. The community in Muthurwa had refused to pay the requested Ksh 4 000 and held a protest by closing the entrance to Muthurwa estate disputing the rent issues and illegal feeder road in the community.

Kenya Railways Pensioners Association

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, thus the feeder road has been causing numerous deaths and health hazards to children and adults, cases such as lung related deaths, lung failures, asthma, eyes, nose mouth ailments.

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.

Notices

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 Ksh 8 Billion the project was to be known as South East Commercial Park development.

846 Trees

The KRSBRS scheme and KERAPA embarked in tree logging in the estate, destroying sanitations 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.

Fundraising

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.

Networking and Collaborations

Well-wishers such as Shailjah Patel International Poet, Philo Ikonya-PEN President and Hakima Abbas-C.E.O Fahamu were the key people whom advanced Human Right Issues to Muthurwa community through their financial assistance and participation in community events such as hosting boxing tournaments in 2007,through their intervention we were able to engage different Non-Governmental Organizations, such as Amnesty International, Haki Jamii, Shelter Forum, Wana Vijiji movement, Self Help Groups in Nairobi, activists from Bunge La Mwanainchi, Baraza La Taifa movements strengthened and empower the community in advocacy on Right to Housing.

Strategies of Communication

Organizers in the community came up with modality of communication, thus strategic areas in the estate were painted with a blackboards 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 listing. Other campaigns done by the residents include holding a International campaign on Environmental issues on 10:10:10 initiative supported by www.350.org, the committees helped the community to undertake renovations, equipping and upgrading of Muthurwa clinic through LATF meeting held at YMCA on 27th-10-2009.Held regular boxing tournaments to reclaim the Muthurwa Dallas Social Hall.

Participated in Amnesty International petition to the government of Kenya on 15th Day of December 2009.The community among thousands of Nairobi submitted the petition to the Minister of Land.

Security

Residents meetings resolved that each household must have a whistle for security reasons mainly frustrating evictions, thugs operating along Ladhies road, this also helped in establishing community policing initiatives several committee were established to look into various issues such as clean-up, developments, mobilizing the community and fundraising.

Professor. Yash Pal Ghai and Professor .Jill Cortell Ghai

Professor Yash Pal Ghai and his wife are celebrated Kenyan constitutional lawyers, Yash Pal Ghai has assisted in drafting 18 countries constitution in the world including our own constitution in 2005, has 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.

Kituo Cha Sheria

Through Yash Pal Ghai and Jill Cortell Ghai their intervention, community was 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 Priscilla Nyokabi of Kituo Cha Sheria visited the community during their regular residents meeting and was briefed on the calamity to be fall residents of Muthurwa. Other key personality that has been in front line in assisting in Muthurwa case was a renowned lecturer Proffessor Davider Lamba of Mazingira Institute and Zahid Sajan of Awaaz magazine.

Kituo Cha Sheria through their Lawyers 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.

Caveat Emptor

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.

In 2011 the community petitioned IMARA DAIMA Company to assist the community in clean-up and unblocking of sewer in the estate, the Company likewise requested to be allowed to brand the walls along Landhies road.

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.

Meanwhile case No.356 of 2010 which was instituted by community was deemed fit to be in cooperated in the Petition No.65of 2010.

LANDMARK RULING.

Justice Masinga In his ruling which he gave on 17th Day of February 2011 observed that the government of Kenya has obligations to offer its citizens access to affordable housing.

Contempt of Court

The court had directed that the status quo to remain, the residents were requested to pay rent their monthly rent,KRSBRS withdrawal of services and closure of their estate offices led community to withhold their monthly dues.

City Council of Nairobi

The City Council of Nairobi relocated hundreds of hawkers operating in Gikomba market to Muthurwa estate, this group of people with no sanitation amenities have turned the entire estate a sanitation area. The council has gone ahead and tuned part of the Muthurwa land as a dumping site for waste from the nearby market, the health hazards caused by the stench emitting from the site has been a concern to residents. The KRSBRS scheme and the City Council of Nairobi allowed the Matatu from eastlands Forward Travelers Sacco to have a Garage and a parking within the estate.

Kenya Power & Lighting Company

KPLC Company in March 2011 embarked on a development project for 16 kv Sub station Power Project in the said land, given the proximity and hazards exposed to community this project must be stopped. Community petitioned the Managing Director of KPLC stopping the exercise in petition dated 15th-Oct, 2011 received.

Progress of the court case.

The pre-trial hearing was heard on 13th-March.2012 and a cross examination will be held on 18th,April 2012 in High court No.1

Community Prayers

The community request the respondent one year written notice to petitioners and all in the said premises, hold public hearings on the proposed plans and alternatives.

Secondly the petitioners during such hearings given opportunity to challenge any evictions decisions and to provide alternative proposal and issues, priority rights and interests should be incorporated in final decision.

Thirdly respondent must provide the petitioners with all relevant information i.e land records and comprehensive proposal on resettlement plans fourthly include reasonable time for public review of, comment on, or objection to the proposed plan.

lastly but not least the petitioners be given reasonable time to obtain legal, technical or other professional advice on the petitioners rights and interests and other options.

Report By.

PATRICK KAMOTHO GITHINJI.

Fahamu Pan-Africa Fellow.

Bunge La Mwananchi Community Organizer.

Baraza La Taifa, Director.

Shield s & Spears Ltd Director.