Ex-gratia payments -or- a place to call home? The case of the Buxton Affordable Housing Project

“On my part, I think the petitioners should be grateful, because I have not seen any clause in their tenancy agreement that obligates the respondent to grant them alternative accommodation, in the event that the respondent needs its premises. It should not be forgotten that the relationship between the petitioners and the respondent is one of tenant and landlord despite the respondent being a public body. The petitioners and the respondent’s relationship is subject to the terms of the contract that they have.”

The judgement further states:

“I have looked at the tenancy agreements displayed by the petitioners. They all contain a clause that the tenancy agreement is subject to termination by the giving of a notice of one month. It means that the petitioners, or any other tenant of the respondent, is not a permanent tenant. There is nothing under their contract that bars the respondent to reclaim its premises by giving a notice of one month. Neither is there any provision in the terms of contract that obligates the respondent to house or facilitate the tenant in the event that it retakes its premises or wishes to pull it down. In our case, the tenants were given a notice of three months, which is more than the one-month notice stipulated in their contract.”

What struck me the most about part of the judgement is the logic behind the court’s argument. A little later in its judgement, the court had this to state:

They are also being given some ex-gratia payment (ex gratia because there is no legal obligation under the contract to make such payments) to enable them find alternative accommodation while the respondent undertakes the project. They have been given the first option to purchase, which will convert them from being tenants, to being owners. A deposit of Kshs. 60,000/= has already been made for them in case they wish to exercise this option to purchase. Where is the constitutional violation in the above? I do not see any.”  

“There was a claim that the respondent (county government) and 2nd interested party (private investor) have violated international instruments. I have pored through the submissions of counsel for the petitioners and they have not pointed me to a specific provision of a specific international instrument that is claimed to have been violated. It was alleged that this is a mass eviction that can be equated to a crime against humanity. There is absolutely no substance in this argument. What we are dealing with is a situation where a local Government needs to create additional housing from the limited land resource that it has. There is no crime being committed here, whether in the domestic, or in the international, forum. The petitioners have not convinced me that the respondent or the 2nd interested party has violated any of the international instruments that they have mentioned.”

To add salt to injury, the court also made the following order:

I have found that there was adequate public participation and even consensus with tenants reached. An adequate notice period was given. The tenants were given an ex-gratia grant to get alternative accommodation which was not stipulated in their tenancy agreement, meaning, that the respondent went beyond its obligations under the contract. This litigation had absolutely no basis. It is for this reason that I will order the petitioners to pay the costs of this litigation to the respondent (county government of Mombasa) and to the 2nd interested party (private investor). I make no orders as to costs in favour of, or against, the 3rd interested parties.”

The judgment depicts the sad reality of millions of urban poor Kenyans who because of their low social standing cannot afford housing. Immediately after the judgment was delivered, the county government of Mombasa hired the services of a bulldozer to demolish an estate that has housed Kenyans of low-social status for over four decades. 

In the Justus Chai case, the County Government of Mombasa was sued by former tenants of Buxton’s old estate because it undertook a project that demolished 520 Buxton houses to replace them with 1850 modern houses. The former Buxton tenants who were petitioners in the case were promised the right of first refusal where they could acquire ownership of the houses through a mortgage loan. According to the petitioners the project violated their constitutional right to housing because the project will create homelessness rather than provide affordable housing as alleged by the county government. According to the petitioners, the public participation that was conducted before the project commenced was a mere formality and not actual participation of the public.

What was the preference of the petitioners anyway? Did the court even mind asking what the petitioners preferred going by the public participation engagement? Did they prefer ex-gratia payments or affordable housing? Home ownership or social rental housing? Home ownership through tenant purchase scheme, or home ownership through home mortgage?

Before answering the question, it is necessary to first discuss the legal framework governingpublic participation. As a legal imperative, the principle of public participation is anchored in various relevant laws such as:

The Constitution of Kenya, 2010

Article 10 of the constitution expressly provides that public participation is one of the national values and principles of governance. This value binds all state organs, state officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions. The Environment and Land Court is one of the state organs that is bound by the Constitution whenever it makes judicial interpretations.

Urban Areas and Cities Act, 2011

The Urban Areas and Cities Act recognises public participation by the residents as a mechanism for realizing sound governance in urban areas and cities. The second schedule of the Act provides as follows: 

“A city or urban area shall develop a system of governance that encourages participation by residents in its affairs….”

The same act notes that:

“The board of a city or municipality shall promote constitutional values and principles.”[1]

County Governments Act No. 17 of 2012

Section 6 (6) of the Act provides:

“In exercising its powers or performing any of its functions, a county government shall ensure efficiency, effectiveness, inclusivity and participation of the people.”[2]

Section 30 (3) (g) of the Act provides as follows:

“In performing the functions under subsection (2), the governor shall promote and facilitate citizen participation in the development of policies and plans, and delivery of services in the county.”[3]

Sections 87 to 92 and 115 of the Act also outlines the principles of citizen participation in counties in detail.

Subsidiarity principle

The subsidiarity principle stipulates that those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account. 

So, we do have a wide range of laws governing public participation as a pillar of good governance. A keen look at the legal framework touching on the right to public participation is that the public has to be given opportunities to be involved in meaningful ways and the government is obligated to listen to their concerns, values, proposals, suggestions and preferences and to consider these in shaping their decisions.

Preference of the Buxton petitioners during the public participation engagement

In the Justus Mbaru case, the petitioners preferred social rental housing and tenant purchase scheme while the private investor was parting with public land to sell houses in order to invest, to make profit and not really provide housing to the people.

There is no problem in the private sector driving the housing agenda, but there is a big problem when the private investor is remaining with 90% (1665 houses) offered for sale through home loans while the County Government’s stake has been reduced to 10% (185 remaining as social housing) as seen in the case of Buxton housing project. Instead of improving the 1970s housing policy we are shifting away from it.  I repeat, housing is no longer seen as human right rather it is a commodity, a piece of investment. 

To buttress the argument that the petitioners’ concerns and preferences were genuine, I proceed to pose a question. If Kenya is actually a country of renters and statistics[4] reveal that many Kenyans are struggling to rent a house, can you actually say that you are providing affordable housing when in essence you want Kenyans to buy houses through home loans which is beyond the reach of many of the urban poor? It’s a no brainer. Or I can put this way, how do you expect a wage earner earning a mere Ksh. 200 or Ksh. 500 daily to service a mortgage? How do you expect a landless, homeless, and a jobless person to access mortgage financing? How do you expect a person of old age with children who are not in a salaried employment to service a mortgage? How do you expect the urban poor to service a mortgage especially at a time when there has been an increase in mortgage defaults which have been reported by banks and which is an indication of the economic hardship facing the people of Kenya? Where does this lead us to? This leads to a conclusion of a case of illegal privatization of public land for private benefit.

So, the Environment and Land Court failed to declare the public participation conducted by the County Government of Mombasa was ineffective, unconstitutional and illegal by definition. It failed to declare that the Buxton housing project is unconstitutional as it does not serve the public interest because the County Government did not consider the views of the public before deciding to sell the houses through a model that is not aligned with the reality of the needs of the low-income earners. What this means is that both the County Government of Mombasa and the court were unwilling to respond to the concerns of the people that came before them.

Court’s interpretation of the right to housing

The right to housing has not only been recognized by the constitution as a fundamental human right. The right to housing has also received judicial endorsement. The Supreme Court in the case of Mitubel Welfare Society vs. The Attorney General & 2 Others pronounced itself on the right to housing as follows:

“The right accrues to every individual or family, by virtue of being a citizen of this Country. It is an entitlement guaranteed by the Constitution under the Bill of rights. The right to housing over public land crystallizes by virtue of a long period of occupation by people who have established homes and raised families on the land. This right derives from the principle of equitable access to land under Article 60 (1) (a) of the Constitution.”

However, in the Justus Mbaru case, the court contravened Article 43 of the constitution by ignoring the precedent set by the Supreme Court in the Mitubel case. Indeed, there may be no provision in the tenancy agreement that obligates the county government to house its people as argued by the judge in the Justus Mbaru case, but there is an obligation imposed on the government to house its people as decided in the Mitubel case. In addition, the county government of Mombasa might have been the owner of the estates as argued by the court but undeniably it was not the owner of the Buxton public land.

So, the Environment and Land court has an obligation to protect the right to housing and we cannot overemphasize the duty of the courts in the protection and advancement of the right to housing because it is the institution that is constitutionally designed to be objective, fair and just in applying the law when issues as the right to housing are brought before it.

For emphasis, it is clear in the constitution that actual public participation is perceived as a measure of social justice, the absence of which results in social oppression. Therefore, when interpreting the constitution, judges have a duty make judgements in accordance with the spirit, purport and objects of the Constitution.

Conclusion

The judgement of the environment and land court in Mombasa is particularly concerning at a time when the right to housing is one of the priority initiatives to be implemented by the Government. Simply put, judicial precedents should be moving towards greater protection of the right to housing.

In my respectful submission, the language of judgment in the Justus Chai case demonstrates that the full meaning of the right to housing has not been internalised by the bench.

The court did not think beyond ex-gratia payments, it did not look at the bigger picture of what public participation and the implementation of the right to housing entails thus arriving at an incorrect conclusion.

Despite the fact that the Environment and Land court is now almost a decade old, it is a worrying feature of judicial reasoning that judges can still make wrong and unfair interpretation of the law. Put differently, the judgment in the Justus Chai case is a perfect demonstration of how the court can risk relegating the Constitution to a worthless document.

Recommendation

When interpreting the constitution, judges have a duty to make judgments in accordance with the spirit, purport and objects of the constitution. For the Environment and Land court to contribute to social transformation, there is a need for it to look at the right to housing through the human rights lens.  The right to housing should not be eclipsed by ex-gratia payments.

Munira Ali Omar isan advocate of the High Court of Kenya working with Haki Yetu Organization as a Lands Programs Officer. She has a passion to serve by reaching to vulnerable communities at the grassroots level.


[1] S 21 (1) (d).

[2] S 6 (6).

[3] S 30 (3) (g).

[4] Information available at https://epaper.nationmedia.com/Kenya<Assessed on 11th December 2022>.

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