Kenya Railways violated Nubians’ rights in Kisumu evictions, Court of Appeal rules

Kenya Railways has suffered a blow after the Court of Appeal in Kisumu upheld a ruling by the Lands and Environment Court that it violated the rights of 3,500 members of the Nubian community when it forcefully evicted them from land they had occupied since pre-colonial times in 2021.

Justices Milton Asike-Makhanda, Hellen Omondi and Luka Kimaru reaffirmed that it was quite evident that the statutory procedure for evictions was not followed and that the community was not given sufficient notice.

They held that it every eviction, forcible or otherwise, adequate and reasonable notice should be given.

“Respect for human rights, fairness and dignity in carrying out the eviction should be observed and the constitutional and statutory provisions on fair administrative action must be adhered to,” the judges said in their judgement delivered in Kisumu on March 21.

The court further determined that the community’s right to housing was violated as their houses were demolished without considering their welfare.

It added that by destroying the respondents’ houses, mosques and schools, Kenya Railways denied the Nubian community their economic and social rights under Article 43 of the Constitution of Kenya 2010.

The parastatal had moved to the Court of Appeal after Justice Anthony Ombwayo in August 2021 faulted it over the manner it conducted the evictions, saying they were done without according them alternative shelter or accommodation therefore exposing families to the vagaries of weather in the middle of the night.

“Children faced the imminent danger of being stranded in the cold for days with no access to reasonable shelter, food and other basic amenities,” he said.

Human rights groups, including Amnesty International Kenya, reported that a child died following the evictions.

“That any forceful eviction and or demolition without relocation is illegal and violates the rights of the petitioners to property and that the petitioners are entitled to the property or compensation before relocation,” he ruled.

The community had told court that they were relocated from the presently Kisumu International Airport in 1937 by the colonial government and resettled in Kibos area.

The court said the subject land parcel L.R No. 31937 has never been surrendered to the Government of Kenya for allocation to any party including the Nubians as they have always been designated and reserved for the Kibos Railways Station

However, even though the community held no land documents to prove ownership, they were not served with a notice before the evictions were conducted.

He allowed the community to file a civil suit for compensation citing the loss of housing structures during the exercise from both Kenya Railways and the national government.

Kenya Railways had argued, among others, that the Nubian community members were trespassers on its lands and reserves and that they were given sufficient notice to vacate and/or remove any illegal structures from as early as March 20, 2018.

It added that it had never surrendered the land to the government or other authority for allocation to any entity terming the allocation of titled over the suit property as creatures of fraud, void and of no legal effect.

However, Justice Ombwayo determined that the community still maintained a licence in respect of the disputed land issued to them by the colonial government, which was long-term and could not be taken from them and thus had rights capable of being protected by the court.

Aggrieved, Kenya Railways moved to the Court of Appeal arguing, among others, that the trial court erred by holding that the community still had enforceable rights to the property under Article 140 of the Constitution based on the licences issued to Nubian soldiers in 1937.

It argued that the licences were to expire upon the soldiers’ deaths and that their heirs were supposed to get temporary occupation of the land and pay rent.

However, in their ruling, Justices Asike-Makhanda, Omondi and Kimaru said they did not detect any error on the part of Justice Ombwayo’s ruling to warrant interference with his decision.