The Supreme Court has reaffirmed that Kenyans living on public land without formal title deeds are entitled to constitutional protection against unlawful evictions.
In a judgment delivered on October 23, the court upheld earlier findings that the government violated the rights of members of the Nubian community when their homes were demolished during an eviction exercise at Kibos Settlement in Kisumu County in 2021.
A five-judge bench dismissed an appeal by Kenya Railways, which had challenged previous court decisions concerning the eviction of more than 3,500 members of the community.
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The bench, led by Deputy Chief Justice Philomena Mwilu, agreed with the Court of Appeal that the residents had acquired constitutionally protected proprietary rights under Articles 40, 43 and 60 of the Constitution.
"In agreement with the Court of Appeal, we hold that on the basis of the reasons foregoing, the 1st to 6th respondents had acquired constitutionally protectable proprietary rights under Articles 40, 43 and 60 of the Constitution. By the same token, we further hold that, the rights of the respondents were violated by the appellant, through their eviction in contravention of constitutional, statutory, and international safeguards," the judges ruled.
The court consequently dismissed Kenya Railways' appeal.
"The long and short of this determination, is that the appeal before us stands to be dismissed, and we do accordingly dismiss it," the bench stated.
The decision reinforces the principle that the absence of formal title deeds does not automatically remove constitutional protections enjoyed by people living in informal settlements. It also underscores the obligation of public authorities to observe legal safeguards when carrying out evictions.
Background to the Kibos eviction dispute
The dispute dates back to 2021, when Kenya Railways evicted residents of the Kibos informal settlement and demolished their structures following the issuance of eviction notices.
The affected residents challenged the exercise in court, arguing that their rights had been violated.
Members of the Nubian community maintained that they had occupied the disputed land for generations. They cited licences issued by the colonial administration in 1937 as part of their claim.
They also pointed to development plans prepared by the Kenyan government in 2012, which they said recognised the settlement.
In 2015, plans were reportedly announced to formalise the Kibos Informal Settlement Upgrading Scheme, with the intention of facilitating the issuance of allotment letters and eventually a community title deed.
Kenya Railways, however, maintained that the land formed part of its railway reserve and belonged to the corporation. It argued that the colonial-era licences did not confer ownership rights on the residents.
Court recognises community's constitutional protections
In considering the dispute, the judges took into account the community's long-standing occupation of the land and the development of homes, schools, health facilities and other amenities within the settlement.
The Supreme Court agreed with the Environment and Land Court and the Court of Appeal that the eviction violated the residents' constitutional rights.
The judgment cited three constitutional provisions: Article 40, which protects the right to property; Article 43, which guarantees economic and social rights; and Article 60, which sets out principles governing land in Kenya.
The judges found that the eviction had contravened constitutional, statutory and international safeguards governing the removal of people from occupied settlements.
The ruling is significant for residents of informal settlements who may lack formal ownership documents but still enjoy legal and constitutional protections against unlawful eviction.