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State at liberty to demolish Jogoo Rd estates after land court dismisses residents' petition

Court gavel. EV.

By Joseph Ndunda | 09 May 2024

Justice Ogutu Mboya dismissed the petition and said the residents are not deserving of the orders they had sought, for lack of sufficient grounds to stop the government's plans.

The Environment and Land Court has dismissed a petition filed by civil servants living in government estates along Jogoo Road in Nairobi to stop the state from demolishing the houses to pave way for the Affordable Housing Project (AHP).

The residents led by their chairman Kennedy Ochuodho had moved to the high court to halt the Ministry of Lands, Housing and Urban Development after they were issued with two months' vacation notice.

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But the Ministry through the office of the Attorney General responded by telling the court that the residents did not prove ownership of or entitlement to the disputed properties.

Justice Ogutu Mboya dismissed the petition and said the residents are not deserving of the orders they had sought, for lack of sufficient grounds to stop the government's plans.

He believed that the residents had contended that the properties in the suit belonged to the government.

The judge stated that the government cannot be limited by a temporary injunction over land that belongs to it, noting that public land is owned by the government through the National Land Commission for the benefit of the people.

The residents had argued that they are lower cadre civil servants whose scope of work entails providing essential and critical services to the government and people of Kenya.

They argued that without due consultation and public participation, the Principal Secretary for Lands and Housing ordered them to vacate to allow the construction of AHP units.

The notice was issued on February 29 giving the residents up to April 30 to move out of the premises. Residents said the order was irregular, illegal, and unconstitutional because there was no public participation and consultation with the residents.

They said they have school-going children enrolled in schools situated within the neighbourhoods and the order would interfere with and violate the children's right to education.

However, the AG's office said that the residents are housed in the government's houses as tenants who pay rent to the government.

"By being tenants, the applicants (residents) have a tenancy relationship with the government and thus the same (tenancy) is liable to termination upon issuance of appropriate and reasonable notice," the office of AG submitted.

Justice Mboya said that like all other civil servants, the residents are paid house allowances.

He noted that the residents agree that the rental income from the houses they occupy and that to be derived from the designated housing units is meant for the benefit of the public.

"For good measure, the payments of the house allowances are tailor-made to enable the beneficiary to find suitable housing for themselves and their families," stated the judge.

"Consequently, and in the premises, the application is hereby dismissed, albeit with no orders to the costs."

Ochuodho said they are appealing for financial support to file an appeal against the court's verdict that favoured the government.

The notice period had lapsed before the court issued its verdict and the government is at liberty to demolish the houses as there is no existing order to stop the same.