The Deputy Registrar High Court of Kenya Embu Law ... - Hakijamii

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CONSTITUTIONAL PETITION NO. OF 2011
IN THE MATTER OF: ARTICLES 2(6), 22(2)(a), (3)(d), 23(1), (3) &
165(3)(a),(b),(d)(i), (ii) OF THE CONSTITUTION
OF KENYA 2010
IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS
AND FREEDOMS UNDER ARTICLES 26(1),(3),
27(1),(2), 28, 29(c),(d),(f), 35, 40(1)(a),(b), (3), (4),
43(1)(b),(c),(f), 45(1), 47(1),(2), 50(1), 53(c),(d), (2) &
57(b) and (c) OF THE CONSTITUTION OF KENYA
BETWEEN
IBRAHIM SANGOR OSMAN …….……………….………………………..……PETITIONER
(ON HIS OWN BEHALF AND
ON BEHALF OF 1,122 EVICTEES OF MEDINA
LOCATION, MUNICIPAL COUNCIL OF GARISSA)
-VERSUS-
1. THE HON. MINISTER OF STATE
FOR PROVINCIAL ADMINISTRATION
& INTERNAL SECURITY
2. THE MUNICIPAL COUNCIL OF GARISSA
3. THE HON. MINISTER FOR LANDS
4. THE HON. ATTORNEY GENERAL……………………………...……RESPONDENTS
PETITION
(Pursuant to Articles 22(2)(a), (3)(d), 23(1), (3) & 165(3)(a)(b),(d)(i),(ii) of the Constitution
of Kenya 2010 And Rule 12, the Constitution of Kenya (Supervisory jurisdiction and
Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice
and Procedure Rules, 2006)
The Deputy Registrar
High Court of Kenya
Embu Law Courts
Embu.
The humble Petition of IBRAHIM SANGOR OSMAN (On his own behalf and on behalf
of 1,122 evictees of Bularik, Bula Medina, Sagarai, Naima, Bulla Nasal and Gesto
(commonly known as “Medina”) within the Municipal Council of Garissa who are
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currently homeless) whose address of service for purposes of this Petition is care of
MBUGUA MUREITHI & CO. ADVOCATES, 4 TH FLOOR, JOSEM TRUST HOUSE
(Housing Barclays Bank), Next to NIC BANK, MASABA RD, off BUNYALA RD,
LOWERHILL, P.O. BOX 52969-00200 NAIROBI.
A. DESCRIPTION OF THE PARTIES
1. The Petitioner is a citizen of the Republic of Kenya and a resident of Medina Location
within the Municipal Council of Garissa and has taken out this Petition on his own
behalf and on behalf of 1,122 other residents of Medina Location, men, women
elderly persons and children whose homes were also demolished in December 2010
and they were thereby effectively evicted and are now homeless (hereinafter 1,122 coevictees).
2. The 1 st Respondent is the Honourable Minister of State for Provincial Administration
and Internal Security responsible and in charge of the Provincial Administration and
all matters of internal security in service of all the people of Kenya and charged with
the Ministerial responsibility over the conduct of the Provincial Administration and
the regular and Administration Police. Service of this Petition shall be affected on the
Office of the Minister of State for Provincial Administration and Internal Security,
Office of the President, Harambee Avenue, Nairobi.
3. The 2 nd Respondent is the Municipal Council of Garissa responsible for the local
government of the municipality under the Local Government Act (Chapter 265, Laws
of Kenya). Service of this Petition will be affected on the 2 nd Respondent by the
Petitioner’s advocates.
4. The 3 rd Respondent is the Honourable Minister of Lands responsible and in charge of
all matters concerning public land in the service of all the people of Kenya and
charged with the Ministerial responsibility over the custody of public land in Kenya.
Service of this Petition shall be affected on the Office of the Minister, Ministry of
Lands, Ardhi House, Nairobi.
5. The 4 th Respondent is the Honourable Attorney General of the Republic of Kenya, the
constitutionally designated Principal Legal Adviser to the Government of Kenya and
in that capacity vested with the legal authority to defend any suit against the
Government. The Attorney General’s address of service is c/o Attorney General
Chambers, State Law Office, Sheria House, P.O. Box 40112, Nairobi.
B. THE FACTS:-
1. The Petitioner and the 1,122 co-evictees are residents of Medina location within
the Municipal Council of Garissa where they have openly, peacefully and
uninterruptedly lived since the 1940s and had constructed permanent and semipermanent
makuti/marara houses.
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2. The Medina location that the Petitioner and the 1,122 co-evictees reside is not
demarcated and is unalienated public land and no individual title deeds issued.
3. On 24 th , 30 th and 31 st December 2010, without any warning, justification, court
order/s, prior notice, information or consultation the local provincial
administration and the 2 nd Respondent violently and brutally demolished the
houses of the Petitioner and the 1,122 co-evictees and rendered all of them
homeless.
4. The officers of the 1 st and 2 nd Respondents did not accord the Petitioner and the
1,122 co-evictees an opportunity to be heard, to salvage any of their property,
building materials and household goods including clothes, beddings, furniture and
utensils before the demolitions.
5. The officers of the 1 st and 2 nd Respondents did not accord the Petitioner and the
1,122 co-evictees any alternative accommodation and/or any form of shelter after
the demolitions.
6. The Petitioner and the 1,122 co-evictees including women, children and elderly
persons are now homeless, living in the open exposed to the elements of nature
and all forms of risks to their health and security.
7. The children of the Petitioner and the 1,122 co-evictees have been adversely
affected in the enjoyment of their right to free and compulsory basic education
which have forced their parents to move from the Medina location in search of
alternative shelter and accommodation.
8. By dint of Article 2(6) of the Constitution of Kenya, 2010, the Petitioner and the
1,122 co-evictees are, in the circumstances of this Petition, entitled to the
fundamental right of housing and prohibition from forced eviction as contained in
Article 11 of the International Covenant on Economic, Social and Cultural Rights
(hereinafter “the ICESCR”) to which Kenya is a party and as more particularly
elaborated by General Comments Nos. 4 and 7 of the Committee on Economic,
Social and Cultural Rights relating to the right to adequate housing and forced
evictions respectively.
9. By dint of Article 2(6) of the Constitution of Kenya, 2010, the Petitioner and the
1,122 co-evictees are, in the circumstances of this Petition, entitled to the
fundamental right of housing and prohibition from forced eviction contained in
Articles 14, guaranteeing the right to property; Article 16, guaranteeing the right
to physical and mental health; and Article 18, guaranteeing the physical and moral
health of the family of the African Charter on Human and Peoples’ Rights
(hereinafter “the ACHPR”) to which Kenya is a party.
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10. By dint of Article 26 of the Constitution of Kenya, 2010, the Petitioner and the
1,122 co-evictees are, in the circumstances of this Petition, entitled to the
fundamental right to life which includes the rights to livelihood and reasonable
means of sustaining life.
11. By dint of Articles 28 and 29 of the Constitution of Kenya, 2010, the Petitioner
and the 1,122 co-evictees are entitled to the fundamental right to human dignity
and security of the person which includes the right to have their inherent human
dignity respected and protected, freedom from any form of violence from either
public or private and prohibition of cruel, inhuman or degrading treatment.
12. By dint of Article 35 of the Constitution of Kenya, 2010, the Petitioner and the
1,122 co-evictees entitled to the fundamental right of access to information held
by the State and information held by any person required for the exercise or
protection of any fundamental right or freedom as in the instant Petition.
13. By dint of Article 43 of the Constitution of Kenya, 2010, the Petitioner and the
1,122 co-evictees are entitled to the fundamental rights to accessible and adequate
housing that includes prohibition of forced evictions, reasonable standards of
sanitation, health care services and freedom from hunger, to clean and safe water
in adequate quantities and to education which rights have been violated as a
consequence of the demolitions.
14. By dint of Article 47 of the Constitution of Kenya, 2010, the Petitioner and the
1,122 co-evictees are entitled to the fundamental right to fair administrative action
and the 1 st and 2 nd Respondents were enjoined to accord the Petitioner and the
1,122 co-evictees all the rights in natural justice before the demolitions, and to
written reasons for the decision to demolish their homes and forcibly evict them.
15. By dint of Article 53 of the Constitution of Kenya, 2010 and Article 28 of the
Convention on the Rights of the Child (hereinafter “the CRC”) to which Kenya is
a party, the 485 school-going children part of the 1,122 co-evictees are entitled to
the fundamental rights of basic nutrition, shelter and healthcare and protection
from abuse, neglect and all forms of violence and inhuman treatment.
16. By dint of Article 57 of the Constitution of Kenya, 2010, the Petitioner and the 25
elderly persons forming part of the 1,122 co-evictees are entitled to the
fundamental freedom of the pursuit of their personal development, to live in
dignity and respect and freedom from abuse and the right to receive reasonable
care and assistance from the State.
17. By dint of Article 3(1) of the Constitution of Kenya, 2010 the Respondents were
enjoined to respect and uphold the Constitution in dealing with the Petitioner and
the 1,122 co-evictees.
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18. By dint of Article 10 of the Constitution of Kenya, 2010 the Respondents were
enjoined, in the circumstances of this Petition, to respect, observe and uphold the
national values of governance that include the rule of law, participation of the
people, human dignity, equity, social justice, human rights, good governance, nondiscrimination
and protection of the marginalized, transparency and accountability
in dealing with the Petitioner and the 1,122 co-evictees.
19. By dint of Article 21 of the Constitution of Kenya, 2010 the Respondents were
enjoined, in the circumstances of this Petition, to respect, protect and fulfill the
fundamental rights and freedoms of the Petitioner and the 1,122 co-evictees and to
address the special needs of women, children and the elderly comprised in the
1,122 co-evictees.
20. By dint of Article 73 of the Constitution of Kenya, 2010 the Respondents were
enjoined, in the circumstances of this Petition, to respect, observe and uphold the
constitutional standards of leadership and integrity which include recognition that
authority assigned to a state officer is a public trust vesting responsibility to serve
the people rather than a power to rule over them and to be exercised in a manner
consistent with the purposes and objects of the Constitution, demonstrates respect
for the people based on the principles of objectivity and impartiality in decision
making ensuring that decisions are not influenced by nepotism, improper motives
or corrupt practices, selfless service based solely on the public interest and
accountability to the public for decisions and actions.
21. By dint of Article 232 of the Constitution of Kenya, 2010 the public officers of
the Respondents were enjoined, in the circumstances of this Petition, to respect,
observe and uphold the constitutional values and principles of public service
which include involvement of the people in the process of policy making,
accountability for administrative acts, transparency and provision to the public of
timely and accurate information.
PRAYERS
Your Petitioner, on his own behalf and that of the 1,122 co-evictees therefore humbly
prays for:-
a) A declaration that the forcible, violent and brutal eviction through demolition of
homes of the Petitioner and those of the 1,122 co-evictees without according
them alternative shelter and/or accommodation leaving them to live in the open
exposed to the elements and vagaries of nature is a violation of their
fundamental right to life guaranteed by Article 26(1) and (3) of the Constitution
of Kenya, 2010 and Article 11 of the ICESCR.
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) A declaration that the forcible, violent and brutal eviction through demolition of
homes of the Petitioner and those of the 1,122 co-evictees without any warning,
court order/s, any or reasonable notice in writing or availing them information
regarding the evictions and without according them alternative shelter and/or
accommodation and leaving them to live in the open exposed to the elements
and vagaries of nature is a violation of their fundamental rights to inherent
human dignity and the security of the person guaranteed by Articles 28 and
29(c),(d) and (f) of the Constitution of Kenya, 2010.
c) A declaration that the forcible, violent and brutal eviction through demolition of
homes of the Petitioner and those of the 1,122 co-evictees without any warning,
any or reasonable notice in writing or availing them information regarding the
evictions is a violation of their fundamental right of access to information
guaranteed by Article 35(1) of the Constitution of Kenya, 2010.
d) A declaration that the forcible, violent and brutal eviction through demolition of
homes of the Petitioner and the 1,122 co-evictees and the destruction of the
building materials and their household goods in the process, without court
order/s and without according them an opportunity to salvage any of their
belongings is a violation of their fundamental right to protection of property
guaranteed by Article 40(1),(3) and (4) as read with Article 21(3) of the
Constitution of Kenya, 2010.
e) A declaration that the forcible, violent and brutal eviction through demolition of
homes of the Petitioner and those of the 1,122 co-evictees without according
them alternative shelter and /or accommodation and leaving them to live in the
open exposed to the elements and vagaries of nature is a violation of their
fundamental rights to accessible and adequate housing, reasonable standards of
sanitation, health care services, freedom from hunger and the right to clean and
safe water in adequate quantities guaranteed by Article 43(1) read with Articles
20(5) and 21(1),(2) and (3) of the Constitution of Kenya 2010.
f) A declaration that the violent and brutal eviction through demolition of homes
of the Petitioner and those of the 1,122 co-evictees without any court order/s,
warning, any or reasonable notice in writing or availing them information and
reasons regarding the demolitions and evictions is a violation of their
fundamental right to fair administrative action guaranteed by Article 47 of the
Constitution of Kenya, 2010.
g) A declaration that the forcible, violent and brutal eviction through demolition of
homes of the Petitioner and those of the 1,122 co-evictees without according
them alternative shelter and /or accommodation and leaving to live in the open
exposed to the elements and vagaries of nature is a violation of their
fundamental rights to physical and mental health, and the fundamental right to
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physical and moral health of the family under Articles 16 and 18 of the ACHPR
read with Article 2(6) of the Constitution of Kenya, 2010.
h) A declaration that the forcible, violent and brutal eviction through demolition of
homes of the Petitioner and those of the 1,122 co-evictees without according
their children alternative shelter and/or accommodation and leaving the children
to live in the open exposed to the elements and vagaries of nature is a violation
of the fundamental rights of children to basic nutrition, shelter and healthcare
and protection from abuse, neglect and all forms of violence and inhuman
treatment and to basic education guaranteed by Article 53(1)(b),(c),(d) and (2)
read together with Article 21(3) of the Constitution of Kenya, 2010 and Article
28 of the CRC read with Article 2(6) of the Constitution of Kenya, 2010.
i) A declaration that the forcible, violent and brutal eviction through demolition of
homes of the Petitioner and other elderly persons among the 1,122 co-evictees
without according them alternative shelter and/or accommodation rendering
them to live in the open exposed to the elements and vagaries of nature is a
violation of the fundamental rights of the elderly persons to the pursuit of
personal development, to live in dignity, respect and freedom from abuse and to
receive reasonable care and assistance from the State guaranteed by Article
57(b),(c) and (d) as read with Article 21(3) of the Constitution of Kenya, 2010.
j) An order of permanent injunction restraining the Respondents, their officers,
agents and/or servants from evicting the Petitioner and the 1,122 co-evictees
appearing on annextures “ISO1” and “ISO2” and from carrying out any more
demolitions of homes in the areas called Bularik, Bula Medina, Sagarai, Naima,
Bulla Nasal and Gesto within the Municipal Council of Garissa without
provision of alternative shelter/accommodation and/or housing mutually agreed
upon with the Petitioner and the 1,122 co-evictees.
k) An order of mandatory injunction compelling the Respondents to provide the
Petitioner and the 1,122 co-evictees appearing on annextures “ISO1” and
“ISO2” with suitable and permanent alternative land, shelter and/or
accommodation.
i) A declaration that the Petitioner and the 1,122 co-evictees are entitled to
general, aggravated, exemplary and punitive damages against the Respondents
jointly and/or severally.
j) Such general, aggravated, exemplary and punitive damages as may be assessed
by the Honourable Court.
k) Costs of this Petition.
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l) Any other order(s) as the Honourable Court shall deem fit and just to grant
DATED AT NAIROBI THIS DAY OF 2011
MBUGUA MUREITHI & CO.
(ADVOCATES FOR PETITIONER)
DRAWN & FILED BY:-
MBUGUA MUREITHI & CO. ADVOCATES
4 TH FLOOR
JOSEM TERUST HOUSE (housing Barclays Bank)
MASABA ROAD, OFF BUNYALI ROAD
UPPERHILL, NEXT TO NIC BANK
P.O. BOX 52969 (00200)
NAIROBI.
TO BE SERVED UPON:-
1. THE HON. MINISTER IN-CHARGE OF
PROVINCIAL ADMIN & INTERNAL SECURITY
OFFICE OF THE PRESIDENT
HARAMBEE HOUSE
NAIROBI.
2. THE TOWN CLERK
MUNICIPAL COUNCIL OF GARISSA
GARISSA.
3. THE HON. MINISTER FOR LANDS
MINISTRY OF LANDS
ARDHI HOUSE
NAIROBI.
4. THE HON. ATTORNEY GENERAL
ATTORNEY GENERAL’S CHAMBERS
STATE LAW OFFICE
SHERIA HOUSE
NAIROBI.
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