THE JURISPRUDENCE OF KENYA’S COURT OF APPEAL ON SOCIO-ECONOMIC

RIGHTS

Mark Mwendwa

Moi University School of Law

April 29, 2019

Working Paper Series

Introduction.

The Court of Appeal, in its jurisprudence on socio-economic rights, has shown its inflexibility in
adjusting to the demands of the transformative nature of 2010 Constitution. The decision of the
Court in the Mitu-Bell case1 tells it all. Its refusal to appreciate the difficult context within which
socio-economic rights are justiciable and its lack of enthusiasm in ensuring that the socio-
economic rights of disadvantaged Kenyans, especially the right to housing, are realized through
judicial adjudication to redress violations of such rights is a testimony of the Court’s deep seated
pro-private property stance.

The Court of Appeal disdain for socio-economic rights and the willingness of the Court to
overlook the needs of the disadvantaged as far as social economic rights are concerned in favour
of private property rights is only comparable to U.S. Supreme Court’s decision Lochner v New
York where when property rights clashed with labour rights and the Court decided to uphold the
former when it held that an individual liberty to contract guaranteed under the 14th Amendment
of the United States Constitution could not be limited by the statute which, in the court’s words,
‘unnecessarily interfered with the individuals liberty to contract for his own labor’.2
Alternatively, the Court of Appeal jurisprudence mirrors that of the Indian Supreme Court during
the first two decades of Indian Constitution, where the Court was bent on protecting property

1
Kenya Airports Authority v Mitu-Bell Welfare Society and 2 Others, Civil Appeal No. 218 of 2014.

2
Lochner v People of State of New York, 198 U.S. 45 (1905)
rights at the expense of the social welfare imperative of the Constitution as advanced by the
government.

The Court of Appeal’s decision in Mitu-Bell has been the cannon fodder for many legal scholars
and commentators who see the Court as the ‘place where jurisprudence dies.’ Post Mitu-Bell, the
Court of Appeal has been referred to as human rights graveyard.3 It has been said that the
decision threatens to plunge the country back to the old ages where the realization of socio-
economic rights was subject to the whims of the state.4

Walter Khobe, on the backdrop of the Mitu-Bell decision notes that, “Put differently, if there is a
group of people whose ideology is contrary to the spirit, values and principles of the 2010
Constitution it is the judges of the Court of Appeal. In fact if there is a group of people who are
irredeemably mired in a legal culture of liberal legalism (formalism, positivism and rule-bound
technical approach to adjudication) associated with the pre-2010 dispensation and are oblivious
to the demands of change in legal culture demanded by the 2010 Constitution it is the judges of
the Court of Appeal.5

The Constitution of Kenya 2010: A Transformative and a pro-poor Constitution.

The Constitution of Kenya 2010, like the South African Constitution which has been hailed as
representing a decisive break from a repressive past characterized by social injustice, is a break
from a past mired by social injustices and inequalities. The 2010 Constitution is a pro-poor and
transformative Constitution laced with the calls for an egalitarian and a caring society. The
theme of social justice and equality permeates all aspects of the Constitution right from the
Preamble to Article 10 which outlines the concepts of social justice, inclusiveness, equality and
protection of the marginalized as national values and principles of governance.

3
Moses K. Chelanga;The Court of Appeal Backpedalling in Enforcement of the Bill of Rights, The Platform, August
2016 Number 21.

4
Alvin Attalo, Turning Back the clock on Socio-Economic Rights: Kenya’s Court of Appeal decision in the Mitu-Bell
case, 13th Sept 2016, Published in the Oxford Human Rights Hub, Available at ohrh.law.ox.ac.uk

5
Walter Khobe; The Resurrection of Justice Norbury Dugdale, The Platform, August 2016 Number 21.
The Constitution of Kenya 2010 is one of the few Constitutions in the world that has entrenched
socio-economic rights in the Bill of Rights. By entrenching a justiciable social and economic
rights, the Constitution hopes to promote egalitarian norms in the Kenya society where the
disadvantaged are cared for and their rights respected. The inclusion of socio-economic rights in
the Constitution is a recognition of the existence of social injustices and inequalities in Kenya
since independence and the fact that the previous regimes have failed to address this issues.

While discussing the transformative nature of the South African Constitution and the place of
social rights, Karl Klare notes, “The Constitution comprehends that political freedom and socio-
economic justice are inextricably intertwined and therefore draws a close connection between
political and socio-economic rights. It intends not merely to proclaim democratic political rights
but to commit the South African people to achieve a new kind of society in which people actually
have the social resources they need meaningfully to exercise their rights. Unlike classical liberal
bills of rights, whose chief purpose was to secure individual liberty and property from imposition
by government, the South African Constitution embodies the idea that the power of the
community can (and must) be deployed to achieve goals consistent with freedom, that collective
power can be tapped to create social circumstances that will nurture and encourage people's
capacity for self-determination.”6

Social-economic rights, in the Kenyan context are provided for under Article 43,53, 54, 55, 56
and 57. The importance of social economic rights was emphasized in John Kibui Mwai and 3
others v KNEC and 2 others, where the court stated that, “The realization of socio-economic
rights means the realization of the conditions of the poor and less advantaged and the beginning
of a generation that is free and less advantaged from socio-economic need. One of the obstacle
however is limited resources…”7

6
Karl E Klare (1998) Legal Culture and Transformative Constitutionalism, South African Journal on Human Rights,
14:1, 146-188, DOI: 10.1080/02587203.1998.11834974

7
John Kabui Mwai & 3 Others v Kenya National Examination Council & 2 Others, High Court of Kenya at Nairobi,
Petition No. 15 of 2011, 6.
In the Indian context, the Supreme Court, in the case of C.E.S.C. Limited v. Subbash Chandra
Bose (1992 (1) SCC 441), recognizing the importance of social economic rights to many Indian
citizens noted;

“To the tillers of the soil, wage earners, labourers, wood cutters, rickshaw pullers, scavengers
and hut dwellers, the civil and political rights are “mere cosmetic” rights. Socio-economic and
cultural rights are their means and relevant to them to realise the basic aspirations of
meaningful right to life. Our Constitution in the Preamble and Part IV reinforces them
compendiously as socio-economic justice, a bedrock to an egalitarian social order. The right to
social and economic justice is thus a fundamental right.”

Article 43 is the main provision on socio-economic rights. The rights include; entitlement to the
highest attainable standard of health, to accessible and adequate housing, and to reasonable
standards of sanitation, to be free from hunger and to have adequate food of acceptable quality,
to clean and safe water in adequate quantities, to social security, to education and entitlement to
emergency medical treatment. In addition, the State is to provide appropriate social security to
persons who are unable to support themselves and their dependants.

The rights provided for under Article 43 are to be progressively realized as per article 21(2). The
State shall take legislative, policy and other measures, including the setting of standards, to
achieve the rights. Per Article 20(5) (c) the court, tribunal or other authority may not interfere
with a decision by a State organ concerning the allocation of available resources, solely on the
basis that it would have reached a different conclusion.

The issue of progressive realization of Article 43 rights has been dealt with by the High Court in
a number of cases.

In the case of Okwanda v The Minister of Health and Medical Services & 3 Others, the court
stated, “Article 21 and 43 require that there should be progressive realization of economic and
social rights, implying that the state must begin to take steps, towards realization of these
rights.”8

In the Mitu-Bell case, Mumbi stated, “The argument that social economic rights cannot be
claimed at this point, two years after the promulgation of the Constitution, also ignores the fact
that no provision of the Constitution is intended to wait until the state feels it is ready to meet its
constitutional obligations. Article 21 and 43 require that there should be ‘progressive
realization’ of social economic rights, implying that the state must begin to take steps, and I
might add be seen to take steps, towards realization of these rights.”9

It has been noted that due to the supposedly vague and resource-dependant nature of economic
and social rights, the standard of progressive realization to the maximum of available resources
was adopted for their realization…The standard was however, not meant to be a defensive tool
for states to hide their lethargy or undue delay in adopting measures aimed at the realization of
economic and social rights.10

The nature of socio-economic rights.

Unlike civil and political rights, the justiciability of socio-economic rights poses some
difficulties. Traditionally, there existed a distinction between civil and political rights on the one
hand and social and economic rights on the other. There are no issues on the judicial
enforcement of civil and political rights as they impose negative obligations. However, socio-
economic rights impose negative and positive obligations which requires the state to take
positive steps to ensure their enjoyment.

8
Mathew Okwanda v The Minister of Health and Medical Services & 3 Others, High Court of Kenya at Nairobi,
Petition No. 94 of 2012,

9
Mitu-Bell Welfare Society v Attorney General & 2 others [2013] eKLR

10
East African Centre for Human Rights (EACH Rights) “A compendium on economic and social rights cases under
the Constitution of Kenya, 2010” (2014), http://www.eachrights.or.ke/pdf/2014/A-Compendium-On-Economic-
And-Social-Rights-Cases-Under-The-Constitution-Of-Kenya-2010
Lenaola J, aware of the traditional distinction, stated in MMM v Permanent Secretary, Ministry
of Education & 2 others [2013] eKLR, “For a very long time socio-economic rights were
regarded as secondary rights while civil and political rights were considered absolute. With the
advent of various International Covenants such as the International Covenant on Economic
Social and Cultural Rights socio-economic rights are now part of Kenya's primary law through
the Constitution of Kenya, 2010 and they are now at par with other fundamental right which are
provided for in Article 43 of the Constitution.”

The distinction no longer exists. It has been held that human rights are interdependent,
indivisible and interrelated. The Constitution of Kenya encapsulates the concept of
interdependence and interrelatedness of rights by entrenching the corpus of rights, civil political
as well as economic, social and cultural in its Bill of Rights…the achievement of transformation
is only possible if the entire corpus of fundamental rights are realized.11

In the Mitu-Bell case, Mumbi J pointed out that the Respondent’s argument that social and
economic rights, which are second generation and progressive in nature and should therefore not
be claimed 2 years after the promulgation of the Constitution, fails to recognize the essential
connection, inter-dependence and indivisibility of rights and more importantly, is made in
ignorance of the fact that the classification as first or second generation has long been
abandoned, and the indivisibility and interdependence of human rights recognized.”

Justiciability of social economic rights.

As already discussed, there are issues with the judicial adjudication of socio-economic rights.
The supposed non-justiciability of economic and social rights has been based on three
interrelated and often overstated arguments: vagueness and resource dependent nature of
economic and social rights; separation of powers concerns and the counter-majoritarian character
of judicial adjudication of economic and social rights; and the lack of judicial competence and

11
East African Centre for Human Rights (EACH Rights) “A compendium on economic and social rights cases under
the Constitution of Kenya, 2010” (2014), http://www.eachrights.or.ke/pdf/2014/A-Compendium-On-Economic-
And-Social-Rights-Cases-Under-The-Constitution-Of-Kenya-2010
capacity to adjudicate polycentric matters that require and the balancing of competing social
concerns, especially those that implicate policy and budget.12

In the Irene Grootboom case, the South Africa Constitutional Court, while discussing the
justiciability of socio-economic rights stated, “These rights are, at least to some extent,
justiciable. As we have stated in the previous paragraph, many of the civil and political rights
entrenched in the (constitutional text before this Court for certification in that case) will give rise
to similar budgetary implications without compromising their justiciability. The fact that socio-
economic rights will almost inevitably give rise to such implications does not seem to us to be a
bar to their justiciability. At the very minimum, socio-economic rights can be negatively
protected from improper invasion.”13

The Committee on Economic, Social and Cultural Rights in General Comment No. 9 states as
follows:

‘The adoption of a rigid classification of economic, social and cultural rights which puts them,
by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the
principle that the two sets of human rights are indivisible and interdependent. It would also
drastically curtail the capacity of the courts to protect the rights of the most vulnerable and
disadvantaged groups in society.’14

Socio-economic rights at the High Court in brief; When the right to housing and the right
to private property conflict.

12
Ibid.

13
Government of the Republic of South Africa v Grootboom & Others 2001 (1) SA 46 (CC).

14
Domestic Application of the International Covenant on Economic, Social and Cultural Rights, CESCR, General
Comment 9, The Domestic Application of the Covenant (Nineteenth session, 1998), U.N. Doc.E/C.12/1998/24
(1998), para. 10 in which the Committee on Economic, Social and Cultural Rights (CESCR)
The discussion herein will center on the supposed conflict between the right to housing and the
right to private property, a conflict which the Court of Appeal has been keen to amplify and point
out and how the High Court has handled such conflict.

The High Court’s jurisprudence on socio-economic rights is beyond reproach. The High Court
has continuously held that socio-economic rights are justiciable and that in matters of forced
evictions, the state should provide alternative accommodation to the affected persons. Even
where socio-economic rights conflict with the right to property under Article 40, the court has
continued to hold that the affected persons are entitled to protection and respect for their human
rights. In doing so, the Court has been at the forefront promoting the egalitarian leitmotif of the
2010 Constitution which calls for social justice, equality and protection of the marginalized.15

The Court heeded to the call made by Kent Roach who notes that, “A common objection to the
recognition of social, economic and cultural rights is the difficulty of crafting meaningful
remedies…socio-economic rights may require more complex remedies such as declarations or
injunctions that invite or require positive governmental action.”16

The High Court has, in its jurisprudence, held that declaratory remedies on their own are
insufficient to address violations and abuse of social and economic rights, more so the right to
housing and has issued structural interdicts which are regarded as an appropriate remedy to
address the violations of the right to housing and forced evictions. Kent notes that an important
backstop for declarations is the availability of injunctive relief and the retention of supervisory
jurisdiction by courts.17

In Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement
Benefits Scheme & 3 others, the court stated, “As regards the realization of the right to

15
Article 10(b), Constitution of Kenya 2010.

16
Kent Roach, "The Challenges of Crafting Remedies for Violations of Social, Economic and Cultural Rights" in M.
Langford ed., Social Economic Rights Jurisprudence: Emerging Trends in International and Comparative Law
(Published January 2009, Cambridge: Cambridge University Press), pp. 46-58.

17
Ibid.
adequate housing, the 3rd Respondent must move with speed and establish policies and
guidelines to ensure that this right is progressively realized…three years after the promulgation
of the Constitution, the right to adequate housing cannot be aspirational and merely speculative.
It is a right which has crystalized and which the state must endeavour to realise.”18

The court in the Satrose Ayuma case was aware of the fact that there was a conflict between the
Respondent’s property rights and the appellants’ housing rights. In such a case, it called for
judicial balancing on the part of the court so as to realise the transformative aspirations of the
Constitution.19

A similar position was taken by the Court in Susan Waithera Kariuki & 4 others v Town Clerk,
Nairobi City Council. 20

Odunga J, in Kepha Omondi Onjuro & others v Attorney General stated, “The government is
under a duty not only to protect property but also to take proactive steps to ensure that social
and economic rights of the people are given meaning and not to merely to adopt a position of
non-interference.”21

However, what makes the jurisprudence of the High Court on social economic rights stand out is
the ability of the Court to craft new remedies per Article 23(3) to redress the violations of the
right to housing and deal with forced evictions. The High Court has used structural interdicts in a
number of cases. Structural interdicts require the offending party to correct a mistake under the
supervision of the court. See the Satrose Ayuma case.22

18
Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3
others, petition No. 65 of 2010

19
Satrose Ayuma; preliminary ruling.

20
Waithera Kariuki and others v The Town Clerk, Nairobi City Council and others, High Court of Kenya at Nairobi,
Petition case No. 66 of 2010

21
Kepha Omondi Onjuro & others -v- Attorney General & 5 others, Nairobi HCC Petition No. 239 of 2014

22
Ibid.
In Kepha Omondi Onjuro case Odunga, J. issued among others orders and directions that
eviction of the petitioners in the suit shall be undertaken inter alia with full participation of
stakeholders including segment committees, Pamoja Trust, the Social Economics and Geo-
Spatial Engineers, Muugano wa Wanavijiji as well as Commissioners from the Kenya National
Commission on Human Rights Commission; the respondents were to file quarterly reports in
court on the progress of the project until further orders of the court; that each party shall have
liberty to apply.

However, as will be discussed later, it is in the Mitu-Bell case where structural interdicts were
actually fully applied by the trial court.

Mitu-Bell and beyond: The jurisprudence of the court of Appeal on socio-economic rights.

This judgment by Mumbi J in the Mitu-Bell case23 has been hailed as a broad, progressive and
purposeful interpretation of the right to housing. 24 It is a seminal decision when it comes to the
enforcement of social economic rights especially the right to housing. However, despite the
promise showed by the court in advancement of the social economic rights and the innovative
use of judicial remedies to address the violations of the rights, the Court of Appeal comprised of
reversed the decision. It was expected that the Court of Appeal would uphold the trial court’s
decision and in doing so promote the social democratic impulses in the Constitution.

The decision by the Court of Appeal is a threat to the progress made by the High Court in the
adjudication of social and economic rights. Post 2010, the position taken by the Court of Appeal
is no longer tenable. It is an abridge on the transformative nature of the 2010 Constitution and on
the human rights front, it fails to recognize the need for a different approach when it comes to
matters pertaining to Article 43 rights and more so the right to housing and the need for the

23
Mitu-Bell Welfare Society v Attorney General & 2 others [2013] eKLR

24
East African Centre for Human Rights (EACH Rights) “A compendium on economic and social rights cases under
the Constitution of Kenya, 2010” (2014), http://www.eachrights.or.ke/pdf/2014/A-Compendium-On-Economic-
And-Social-Rights-Cases-Under-The-Constitution-Of-Kenya-2010.
courts to ensure that national values and principles under Article 10 should permeate every post
2010 decision.

The decision by the Court of Appeal is seen as being protective of property rights at the expense
of ensuring that ensuring that the socio-economic rights of those disadvantaged in the Kenyan
society are protected. The Court ignored the call for social justice by the Constitution. While the
High Court had previously noted that mere declaratory remedies were not efficient in addressing
the forced eviction of slum dwellers and people who had occupied public land, the Court of
Appeal decision threatens to do away with the use of structural interdicts as the appropriate
antidote to remedy violations of the social economic rights of disadvantaged Kenyans especially
on the issues of forced evictions.

This decision by the Court of Appeal has been referred to as a poison ivy whose growth must be
nipped in the bud. 25 The Court of Appeal reversed the decision of the trial court basing its
arguments on grounds that were not only flimsy, unfounded, bad in law but also constitutionally
incorrect and suppositions that showed the court’s unwillingness to ensure that the egalitarian
norms of the transformative 2010 Constitution are promoted. It has been noted that if the
precedent set by the Court of Appeal is left to flourish or trickle down to the other courts, it poses
the gravest danger to the transformative ideals of the Constitution.26

The Court of Appeal did not seem to appreciate the fact that the inclusion of socio-economic
rights in the 2010 Constitution is on the backdrop of the social inequalities and social injustices
that have permeated the Kenyan society since independence and the fact that previous regimes
have failed to address these inequalities. A close reading of this decision by the Court of Appeal
gives the impression that the Court of Appeal is willing to let the rights of the disadvantaged to
be trodden on.

25
Ochiel J Dudley, When Courts Lie: Interrogating the Court of Appeal’s myths about the Kenyan legal system in
the Mitu-Bell case, The Platform, August 2016 Number 21.

26
Ibid.
The discussion hereunder will analyse the legal ramifications of the Court of Appeal decision,
the defects in the court’s reasoning and what it means for the adjudication of social and
economic rights by the High Court.

The Court of Appeal in the Mitu-Bell case begun by noting the tension between the right to
housing as a socio-economic right and the right to private property and affirming its commitment
to the realization, justiciability and enforcement of socio-economic rights and noting that to
continue affording socio-economic rights less judicial protection and enforcement is erroneous
because by their very nature socio-economic rights are crucial to a state’s development. The
court stated, that, “they cannot be mere “aspirations” and must be afforded the protection they
rightly deserve. We opine that the traditional classification of fundamental rights into separate,
watertight compartments is no longer feasible given the fact that fundamental rights are often
inextricably interwoven. It is time to move away from the notion that it is acceptable to afford
socio-economic rights less judicial enforcement.”

Recognition by the Court of Appeal that, just like civil and political rights, social and economic
rights are justiciable and the fact that the traditional separation of human rights into classes and
generations no longer exists is actually very progressive and reinforces the previous decisions of
the High Court. However, this is just cosmetic and a further reading reveals how far the Court of
Appeal was willing to go to ensure that the right to housing and other socio-economic rights of
people living in Mitumba slums were not released. The reasoning by the Court of Appeal is
flawed in so many ways.

Abdication and delegations of judicial duty argument.

In dealing with the issue of whether the trial court had abdicated its judicial role by delegating
judicial functions and powers to “Pamoja Trust” and other unnamed state agencies and civil
society organizations, the Court of Appeal pointed at cases where similar orders and directions
were issued; A similar order was issued by the Supreme Court in Communications Commission
Of Kenya & 5 Others -v- Royal Media Services Limited & 5 Others, Sc Petition No. 14 Of 2014
and by the High Court in the case of Satrose Ayuma by Lenaola J and Kepha Omondi Onjuro
& others -v- Attorney General & 5 others.
It is surprising to note that the Court did not refer to the orders and directions given in the above
cases as amounting to abdication and delegation of judicial functions. The Court’s attempt to
distinguish the orders and directions issued by the Supreme Court in the Communications
Authority of Kenya case and those issued by the trial court in the Mitu-Bell case is a futile
exercise. The purported distinction failed to take into account that both the High Court and the
Supreme Court used almost similar words when issuing the directions and orders; the parties
were to engage, agree and identify.

By terming the engagement of Pamoja Trust and other civil society organizations as delegation
and abdication of judicial functions by the court, the Court of Appeal failed to recognize the
difficulties surrounding judicial adjudication of socio-economic rights. It is true that the
obligation of crafting new and appropriate remedies is placed on the High Court by dint of
Article 23(3). However, the reasoning by the Court of Appeal that the appropriate remedy to
address socio-economic rights violations cannot be crafted by the courts with the engagement of
the public is not tenable. The question is that if an appropriate remedy can only be crafted with
the engagement of the public, should the court overlook the remedy on the basis that engaging
public participation would amount to abdication and delegation of judicial functions? By
adhering to the dictates of the Constitution under Article 23(3), the High Court cannot be said to
have abdicated its authority under the Constitution.27

The Court then considered the issue of interim judgment or partial judgment and held that the
concept of partial judgment or interim judgment was unknown to the Kenyan law. The Court was
of the view not even a broad reading of Article 23(3) allowed the concept of interim judgment.
Under, the doctrine of functus officio, once a court has delivered a judgment, the matter is fully
settled and cannot be re-litigated.

The Court of Appeal’s opinion that the nature of orders issued amounted to ‘partial judgment’
and abdication of judicial functions is unsustainable. To hold this view would mean that

27
Joseph Kilonzo, Kenyan Court of Appeal Shackles the Novel and Innovative Remedies of Socio-economic rights
violation. August 2016, The Platform, Number 22, September 2016
adjudication and enforcement of social economic rights under the Constitution would never be
achieved.28

The rejection of post-judgment supervisory orders; borrowing from other jurisdiction.

The High Court had issued orders and directions in the mold of structural interdicts relying on
Article 23(3); the court stated that it had the power to grant appropriate and so it issued structural
interdicts requiring the respondents to provide, by way of affidavit, within 60 days, the current
state policies and programmes on provision of shelter and access to housing for the marginalised
groups such as residents of informal and slum settlements. The respondents were to engage with
Pamoja Trust and other civil society organizations with a view to identifying an appropriate
resolution. Further, the parties were to report back on the progress made towards a resolution of
the petitioners’ grievances within 90 days from today.

The Court of Appeal was of the opinion that structural interdicts was a foreign concept that is not
provided for by the 2010 Constitution and warned against borrowing from other jurisdictions
basing its argument on the premise that the circumstances in those jurisdictions may not be
identical to the Kenyan situation and that the progressive needs of the Kenyan Constitution are
different from those of other countries.

First, the High Court in a number of cases on socio-economic rights had granted orders and
directions akin to structural interdicts. Similarly, the Supreme Court in Communications
Commission of Kenya & 5 Others -v- Royal Media Services Limited & 5 Others issued
directions that have the markings of structural interdicts which requires the state or state organs
to correct a mistake under the supervision of the court.

It ‘castigated’ the High Court for borrowing jurisprudence on structural interdicts from other
jurisdictions such as South Africa, Canada, and India stating, “, “It is our considered view that
Article 23 (3) of the Kenya Constitution that permits the High Court to grant an appropriate
relief should not be construed to be provision that permits the High Court to borrow legislations

28
Moses K. Chelanga, The Court of Appeal Backpedaling in Enforcement of the Bill of Rights, The Platform, August
2016 Number 21.
from other countries and through judicial interpretation embed them into the laws of Kenya.
Article 23 (3) is not a legislative instrument for the courts.…” The court pointed out these other
jurisdictions had provisions in their constitutions permitting the application of post-judgment
supervisory orders.

The court actually misconceived the provisions of Article 23(3) which provides that in any
proceedings brought under Article 22, a court may grant appropriate relief. The list of remedies
that the can grant under Article 23 is not only limited to those listed under this provision and the
list is not exhaustive. The framers and drafters of the Constitution did not intend to limit the
scope of remedies that the High Court could grant to address violations of human rights. It has to
be noted that Article 23(3) gives the High Court the license to craft new and innovative remedies
to address violations of human rights. An obligation is placed on the High Court to forge new
tools to ensure that the provisions of the Bill of Rights do not only remain mere aspirations; this
includes socio-economic rights.

The Court of Appeal in its wisdom found it correct to argue that the fact that structural interdicts
are a ‘foreign concept’ they cannot be an appropriate remedy under Article 23(3). By terming the
concept of structural interdicts as a foreign concept and hence inapplicable in the Kenyan
situation because the Constitution does not expressly provide for it, the Court of Appeal dealt a
huge blow to judicial adjudication of social and economic rights. This has the implication of
turning the High Court into a toothless bulldog so far as socio-economic rights adjudication is
concerned. The reasoning is that, because unlike civil and political rights, socio-economic rights
impose both positive and negative obligations and so in order for these rights to be fully enjoyed,
all the tools should be made available to the courts. Without this ‘new tools’ the egalitarian
norms of the Constitution cannot be realized and the social justice concept under Article 10 will
remain a mirage.

The Court of Appeal also failed to take note of the fact that the jurisdictions from which the High
Court had borrowed the use of structural interdicts had constitutions which are as transformative
as the Kenyan Constitution. In addition, the court failed to appreciate that borrowing from other
jurisdictions enriches our jurisprudence.
Consequently, the court misinterpreted the supremacy of the constitution clause under Article 2
of the Constitution. The court purported to apply the supremacy clause when rejecting the
application of UN Guidelines on Evictions on the grounds that they were not general rules of
international law but forgot to completely apply the supremacy clause when it held that there was
no place for structural interdicts in the Civil Procedure Act and in the Rules. The constitution
ranks higher above the Civil Procedure Act and Rules and the fact that the court rejected the use
of structural interdicts on the grounds that they are an alien concept to the Act and the Rules
actually went against the supremacy clause.

By rejecting the use of structural interdicts on the ground that the Civil Procedure Act and Rules
do not authorize their use, the court failed to take note of the responsibility placed on courts by
Article 20(3) to develop the law to the extent that it does not give effect to a right or fundamental
freedom.

The upshot is that the Court of Appeal failed to interpret the constitution as a whole. The judges
preferred to apply Article 2(5) and (6) when rejecting UN Guidelines and then refused to apply
the supremacy clause under Article 2 when they noted that structural interdicts are not provided
for under the Civil Procedure Act and rules. The court seemed to engage in what can be equated
to selective amnesia. When called upon to develop the law and fashion new remedies to ensure
that the people of Mitumba slums were not denied their socio-economic rights, the court simply
abdicated its duty and by doing so threatened to do away with the only remedy that has the
potential to address the violations of these rights.

It has been argued that the Court of Appeal in this case failed to appreciate the difficulties and
context within which enforcement of socio-economic rights takes place and the fact that
structural interdicts tend to cure these problems.29

General rules of international law versus rules of international law; A fictitious distinction.

29
Joseph Kilonzo, Kenyan Court of Appeal Shackles the Novel and Innovative Remedies of Socio-economic rights
violation. August 2016, The Platform, Number 22, September 2016.
The Court of Appeal well aware that there were no guidelines in Kenya governing forced
evictions went ahead to hold that the UN Guidelines on Evictions could not be applied because
they were rules of international and not general rules of international law as demanded by the
constitution.

The court begun the discussion by noting the reliance on Universal Declaration of Human Rights
Guidelines on Evictions by the trial court in the Mitu-Bell case and guidance the Guidelines
provided in the Kepha Omondi Onjuro case and the use by Lenaola J in Satrose Ayuma case.

At paragraph 116, the Court stated, “It must be noted that Article 2 (5) of the Constitution makes
general rules of international law to be part of the laws of Kenya. It is the general rules that
form part of the laws of Kenya and not all rules of international law. In this context, rules of
international law are not part of the laws of Kenya unless they are part of the general rules of
international law. The general rules of international law are those rules that are peremptory
principles and are norms of international law; they are the customary rules of international law
or jus cogens in international law, they are those rules from which no derogation is permitted;
they are globally accepted standards of behavior; they are rules and principles that are
applicable to a large number of states on the basis of either customary international law or
multilateral treaties; the general rules of international law are not based on the consent of the
State but are obligatory upon state and non-state actors on the basis of customary international
law and peremptory norms (jus cogens).”

And with this distinction, the Court of Appeal not only questioned the applicability of the UN
guidelines but also went ahead to hold that the United Nations and any other international or
multilateral organization is neither a supplementary nor complementary legislature for Kenya.

The reasoning of the court was based on the notion of sovereignty of states. The argument was
that the external sovereignty of Kenya is not only political but legal and legislative. This is
curious because Kenya, having ratified the UN Charter and being a member of the United
Nations has not only expressly but also impliedly accepted the application of international law
where the laws are consistent with the Constitution under Article 2(5) and (6). In the absence of a
legislative framework on evictions, the Guidelines are to be applied.
The implications of this reasoning cannot be ignored. What the Court of Appeal was saying to
the residents of Mitumba slums and other disadvantaged Kenyans faced with the threat of
evictions was that their socio-economic rights could be protected and enforced. The failures of
the state and legislative organs to enact a framework to govern evictions was to be visited on
poor Kenyans. It is hard to comprehend why the court rejected the application of the UN
Guidelines while it clear that the Guidelines seek to promote what the Constitution stands for;
the respect for human rights.

Of right to housing, alternative accommodation and borrowing from other jurisdictions.

On the issue of providing alternative accommodation to those affected, the court held that the
trial court erred in placing reliance on Indian case of Olga Telis & Others -v- Bombay Municipal
Corporation (1985) and the Irene Grootboom South African case. This was so because that
these cases involved interpretation of constitutional provisions of the respective countries and
similar provisions are not found in the Kenyan Constitution.

This reasoning has been faulted because of the Court of Appeal’s failure to recognize that the
Constitution of Kenya was borrowed from the Constitutions of jurisdictions such as South Africa
which in turn borrowed from other jurisdictions such as Canada. Maurice Oduor notes that, “If
the court was saying that borrowing must be done very carefully, it would be right. If the court
was saying, as it seems to, that borrowing must be stifled because Kenya ought not copy from
other jurisdictions, then it would have embarked on a misguided quest for originalism.”30

It has been opined that, “when it comes to analysis of comparative jurisprudence the Court of
Appeal engages in intellectual dishonesty. The Court only holds that Sections 32 and 226 of the
Constitution of India are dissimilar to Article 23(3) of the Constitution of Kenya 2010. It fails to

30
Maurice Oduor, Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others: Serious omissions and legal
missteps, The Platform, August 2016, Number 21.
make a holding on distinction between Section 23 (3) of Constitution of Kenya 2010 and Section
38 of Constitution of South Africa.”31

The right to adequate housing versus private property rights.

As already noted, the 2010 Constitution is very transformative in terms of ensuring that the
conditions of the disadvantaged are improved. That’s why the right to property is clearly
provided for under Article 40 and the right of all Kenyans to access economic and social rights
provided for under Article 43. The Constitution clearly anticipated the conflict between the right
to private property and the right to adequate housing but the tension is not as great as the Court
of Appeal envisions it.

The court notes, “Enforcement of private property rights has the potential to impose restrictions
on the fulfillment of socioeconomic rights. Realization of progressive social economic rights
…might be seen as violating justiciable constitutional property rights.”

Further, the court opines, “It is advisable to bear in mind that in interpretation of the
Constitutional Articles on socio-economic right, it is not the role or function of courts to re-
engineer and redistribute private property rights.”

A close reading of the two excerpts reveals the Court of Appeal’s willingness to protect private
property even at the expense of socio-economic rights more so the right to housing. The Court is
pro-private property rights. It proceeds from the premise that judicial adjudication of socio-
economic rights amounts to ‘re-engineering’ and ‘re-distributing’ private rights which according
to the court is the role of the executive and legislature and involves public participation (It has to
be remembered that the court referred to the engagement between the state and Pamoja Trust in
the Mitu-Bell case as an abdication by the trial court of its judicial function. Isn’t this public
participation?)

31
Joseph Kilonzo, Kenyan Court of Appeal Shackles the Novel and Innovative Remedies of Socio-economic rights
violation. August 2016, The Platform, Number 22, September 2016.
On this, Walter Khobe notes, “In contrast to this transformative vision of property that the
Constitution seeks to engender, the Court of Appeal proceeds from a warped vision, the Court
adopts private law’s liberal, free-market oriented interpretation of property as its approach, but
this approach is misinformed in face of the Constitutional entrenchment of the right to
housing.”32

The Court then goes ahead to note that in the absence of a legal framework, courts have no role
in the guise of constitutional interpretation to re-engineering, take away and re-distribute
property rights. This thinking is flawed and it proceeds from the traditional perception that social
economic rights including the right to housing are not justiciable. Isn’t this what the Court means
when it says that courts have no role in the guise of constitutional interpretation to re-engineer,
take away and re-distribute property rights?

Post Mitu-Bell; Moi Education Centre Co. Ltd v William Musembi & 16 others [2017]
eKLR.

It was an appeal from the judgment of Mumbi J who had declared that: the demolition of the 1st
to 14th respondents houses and their forced eviction from the appellants property without
providing them and their children with alternative land or shelter was a violation of the
fundamental right to inherent human dignity, security of the person, and to accessible and
adequate housing; a violation of the fundamental rights of children guaranteed by Article 53 of
the Constitution; and a violation of the rights of elderly persons guaranteed by Article 57 of the
constitution.

As the High Court has always held, it was held that the state had an obligation to provide
alternative accommodation to the evictees and the rights of those affected had to be respected
and upheld.

The Court of Appeal once again had an opportunity to consider its stance on the nature of socio-
economic rights and remedy the mistakes made in the Mitu-Bell appeal case. The Court did not
have any difficulty in proclaiming that the state has an obligation to provide alternative

32
Walter Khobe, The Resurrection of Justice Norbury Dugdale, The Platform, August 2016 number 21.
accommodation to the evictees. The main point of appeal was the holding by the trial court that
the appellant, a private person, had an obligation to provide alternative accommodation to the
evictees in conjunction with the state.

The Court correctly held that the Constitution imposes both vertical and horizontal obligations
and that private persons can be responsible for violations of socio-economic rights.

The Court did not deal with the issue of applicability of UN guidelines because unlike in Mitu-
Bell, there was now a legislation to govern evictions {Land Laws(Amendment) Act 2016}.

Once again the Court of Appeal, citing its reasoning in Mitu-Bell chided the High Court for
what it termed as the failure by the Court to note the tension between socio-economic rights and
property rights.

The Court did not have the occasion to address the flaws in the Mitu-Bell case as the issue of the
use of structural interdicts did not come up. In addition, the borrowing of jurisprudence on the
judicial adjudication of socio-economic rights from other jurisdictions was not an issue that the
Court was called upon to decide. However, this would have been a great opportunity for the
Court to correct the missteps made by the Court in the Mitu-Bell case and to address the
allegations that the Court does not seem to comprehend and understand the needs of a
transformative constitution.

Conclusion.

An appeal has been made to the Court of Appeal to instantly tune its juridical aerials to the beat
of the frequency from which the Constitution of Kenya 2010 signals the right interpretative
approach.33 The pro-private property stance portrayed by the Court in the Mitu-Bell case has the
effect of adversely affecting the transformative project undertaken by the Kenyan people, by
giving to themselves a transformative Constitution. The society which the Constitution envisions

33
Ochiel J Dudley, When Courts Lie: Interrogating the Court of Appeal’s myths about the Kenyan legal system in
the Mitu-Bell case, The Platform, August 2016 Number 21.
is an egalitarian and caring society where social injustices and inequalities are a thing of the past.
By holding in favour of private property rights and rendering the residents of Mitumba slums
homeless with no alternative accommodation, the Court of Appeal was in no way promoting the
egalitarian leitmotif of the Constitution.

The liberal and free-market ideals exhibited by the Court of Appeal in the Mitu-Bell decision in
interpreting the right to property have adverse consequences on the Constitutional right to
housing. The Court will have another shot in the Satrose Ayuma appeal case to affirm its
commitment to promoting the egalitarian ideals of the 2010 Constitution and to redeem itself.
Meanwhile, the Supreme Court is expected to settle the matter in the Mitu-Bell case which is
now before the Court.