Republic v Principal Secretary, Ministry of Lands, Housing and Urban Development ex parte Kenyatta Peter & 3 Others [2017] KEHC 7143 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JR MISC.  APPLICATION NO. 165 OF 2013

REPUBLIC……………………………………….…………..……APPLICANT

AND

THE PRINCIPAL SECRETARY, MINISTRY OF LANDS,

HOUSING AND URBAN DEVELOPMENT……...............…….RESPONDENT

EX PARTE:KENYATTA PETER & 3 OTHERS

RULING

Introduction

1. On 27th November, 2014, I delivered a judgement in this cause in which I found that the Respondent had not satisfied me that the intended action by the Respondents in evicting the applicants complied with the UN guidelines on evictions. I was similarly of the view that the rights of the applicants to adequate housing were threatened with violation and that the intended action threatened to violate the applicants’ rights to adequate housing.

2. Consequently, I proceeded to issue the following orders:

1) Certiorari removing into this Honourable court the Respondent’s directive dated 14th November, 2012 and 29th April, 2013 to evict the ex parte applicants and any other consequential orders emanating therefrom and the same are hereby quashed.

2) Prohibition against the Permanent Secretary Ministry of Housing his Officers, servants, agents or assignees from implementing or executing the order of demolishing, evicting, damaging or interference with the applicants’ business, homes, structures and properties located within Kibera Soweto East Zone slums or act in any other way that will prejudice their safe, quiet enjoyment of the same pending further orders of this Court.

3) Pursuant to Article 23 of the Constitution which does not limit the remedies this Court is empowered to grant in such cases, I direct that within30 days of this Judgment, a meeting shall be convened by the Respondent with the Applicants, where a programme of eviction of the Applicants shall be designed taking into account the following factors:

i) that at the time of eviction, neutral observers should be allowed access to the suit properties to ensure compliance with international human rights principles.

ii) that there must be a mandatory presence of Governmental officials and security officers.

iii) that there must be compliance with the right to human dignity, life and security of the evictees.

iv) that the evictions must not take at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and in fact preferably at the end of the school term or during school holidays.

v) that no one is subjected to indiscriminate attacks.

4) The Report of the progress shall be filed in this Court within 60 days from the date of this Judgement.

5) Liberty to apply granted.

6) As this was substantially a representative Cause, there will be no order as to costs.

3. By a Notice of Motion dated 23rd August, 2016, the ex parte applicants herein have moved this Court seeking the following orders:

1. That the matter be certified urgent and the same do proceed ex parte in the first instance prayers 1, 2, 3, 4 herein be granted ex parte and the court do order that personal service of this application and court orders extracted be personally affected on the respondents for their answer.

2. That pending the hearing and determination of this application inter partes the respondents their servants, agent  and cohort be restrained from mobilizing funds, enlisting and soliciting members of the public into Soweto East Zone A Market Stalls project apart from the verified and enumerated 345 beneficiaries as annexed in the supporting affidavit PK3.

3. That the respondents their agents servants and cohorts be restrained from further acts of violence, hooliganisms, Eviction and destroying the 1st ex parte applicants property being Victory Hope Community Centre, Kibera, and such process of eviction be halted until the court is satisfied that the orders of 27/11/2014 have been fully complied with or until further court orders and directions.

4. That court summons be issued forthwith for the 1st and 2nd respondent to appear personally in court to explain non-compliance of orders of court given on 27/11/2014 and do a comprehensive progress report as ordered by the court in its judgment

5. That a mandatory injunction do issue against respondent, his servants, agents and in particulars the  director of slum upgrading and his cohorts be restrained from collecting funds and enlisting and soliciting members of the public apart from the numerated 345 beneficiaries as annexed in the supporting affidavit PK3 from the benefiting from Soweto East Zone A Market Stalls Project.

6. That comprehensive report of the loss incurred by Victory Hope Community Centre Kibera in the demolition carried out on the night of 20/8/2016 and 22/8/2016 be done and filed in court by a Professional Registered Valuer, (whose valuation costs shall be borne by the respondents jointly and severally) such assessed damages and loss be borne individually and personal liability and responsibility by the 2nd respondent, alternatively the 1st respondent do bear vicarious liability of the said loss and the same be paid forthwith.

7.  That the 2nd respondent be enjoined in the application to personally answer contempt of court charges against him and be committed to a civil jail for a maximum term of six (6) months and/or his moveable property be attached or fined and punished appropriately for contempt as the honourable court shall deem fit to achieve the ends of justice for disobeying orders and judgment of court dated 27/11/2014.

8.  That consequent to order 7 above the 2nd respondent be declared by the court to have breached Article 10 of the Constitution by being in contempt of court orders and therefore unfit to hold public office and recommendation of adverse sanctions be meted against him by the 1st respondent including termination from office and a report of such action be filed in court.

9. That the 1st respondent do bear consequential loss suffered by the beneficiaries businesses due to the inexcusable delay of resettlement of the project and the quantum of such loss be assessed and filed in court for appropriate orders of compensation.

10. That the respondents be declared to have violated the applicants right to property as enshrined in Article 40 of the Constitution, the right to a fair administrative action as enshrined to in Article 47, and the affected children’s right to education in Article 43(f) and contempt of court orders issued on 27/11/2014 due to the said illegal demolitions and destruction of the schools property and equipment and compensation be ordered for breaching the said rights

11. That cost of this application be provided for.

Applicants’ Case

4. According to the applicants, pursuant to the said Court order the then PS Ministry of Land, Housing and Urban Development, Ministry of Land, Housing and Urban Development in charge of the docket, Ms. Marian El Mawi, invited them with teir advocates and a special committee as stipulated by the court order was formed to oversee the resettlement process and the implementation of the project which is market stalls.  Accordingly, they had several fruitful consultative meetings chaired by the said PS and attended by the Director of Slum Upgrading who was aware of the implication of the courts orders which were subject of discussion and implementation having been duly served and warned of the consequences of court disobeying the court order.

5. It was averred that pursuant to the said meetings the ministry and the stakeholders captured and remunerated and verified 345 individuals who were given special remuneration identity cards as the bona fide beneficiaries and as their business fell on the target site for the project, majority of them voluntarily left the site paving way for the construction of the intended market stalls.

6. It was averred that one school, Baptist Academy was relocated and assistance given. However, one school, Victory Hope Academy, is still on site since it was not relocated and it hosts about 211 Pupils in its education programmes. Unfortunately the former PS was deployed in a different department in the Ministry and the docket is not under her influence and this left the cartels led by Mr. Charles Sikuku the Director of Slum Upgrading to come back and reign with impunity as a result of which things stalled due to the frustration of the progress.

7. It was averred that the applicants’’ advocates have severally written to the ministry over the matter to jumpstart the consultative stakeholder meetings with no response from the ministry as the said Charles Sikuku has been intercepting the correspondences and barring the applicants from presenting their cases.

8. The applicants averred that on the night of August 20 2016 the said Charles Sikuku led a group of goons and descended on the property and demolished it.  The same action was repeated on 22nd August, 2016 through a firm of auctioneers.  It was disclosed that the director of slum upgrading is using one Cyrus Mulandi and Jactone Kaparo TO mobilize the unsuspecting public and other 3 (sic) parties to enlist parallel to the first list issued under the guidance and chairmanship of the former PS and all stakeholders collecting money from unsuspecting public which is corrupt and also in breach of court orders as there are specific beneficiaries of the market stalls formerly with businesses on the earmarked site.  Accordingly, several underserving people were awarded houses in the housing project being close relatives, children, girlfriend’s mistresses and nominees of “connected” individuals at the lands departments.  Some  were outright purchasers while majority of the genuine and intended allottees as intended by the government are still not catered for and it is this confusion that the director of slum upgrading id deliberately creating and replicating in order to benefit from it as did the housing scheme and he must be arrested urgently. To the applicants, this is not the decision of the ministry since the PS and CS in charge are not aware of the cartels  and the impediments and frustrations of the 2nd respondent who has blocked all communication to the said state officers as the 2nd respondent is misusing his office just like a personal property.

9. It was contended that no progress report has been made to Court despite the respondents represented by the able state counsel in defiance of court orders. To the applicants, the said director must take personal responsibility and liability for the loss inflicted by the owners of the Victory Hope Academy and in default his employer be vicariously liable for the breach of the court orders which destruction of books, school equipment, computers, chairs desk and structures run into Hundreds of Thousands.

10. It was averred that despite knowing that there is a technical committee and advising the current PS on its chair the said Director has taken authority unto himself and started issuing personnel edits (sic) and directions in defiance of the court order as he pleases with the aim of relocating the market stalls to his and members of his cartel nominees, and relations or outright sale to public and thus confer them unjust benefit as was done with the housing scheme. To the applicants, by deliberately disobeying court orders and directions and taking court orders and taking matters to his own hands the said director is in contempt of court and ought to be punished and  specific sanctions be recommended for breaching the Public Officers Ethics Act and Chapter six of the Constitution and the code of conduct of state departments.

11. The applicants urged that the 1st respondent do beat (sic) consequential loss suffered by the beneficiaries businesses due to the inexcusable delay of resettlement of the project and the quantum of such loss be assessed and filed in court for appropriate orders.

Respondent’s Case

12. According to the Respondent, following the judgement of this Court, the Principal Secretary responsible for the then Ministry of Land, Housing and Urban Development convened the first meeting on 19th December, 2014 with the view of implementing the court order and several issues were agreed upon. Key among them was formation of a technical committee of 8 members; two from those not enumerated; two from those enumerated and four from Government as well as an observer who was nonpartisan. In the said first meeting, the legal representative for the applicants committed to notify the Court on the progress made and to request for extension of set period. Further, the relocation of all affected people and institutions on the project site was inevitable and that the respondents were not bound to secure alternative site for the school of the applicants.

13. It was averred that several other meetings were held and subsequent enumeration of the affected persons on the project site where the 245 market stalls were to be developed and that an enumeration exercise conducted by the technical committee on the implementation of the court order was successfully completed with a total of 342 persons enumerated. The affected persons were issued with notice to vacate by 28th February, 2015 and that all the affected persons except the applicants vacated the site voluntarily.

14. According to the Respondent, the sale prices of the market stalls and houses were negotiated and agreed upon by the stakeholders in many forums whereby the community was fully represented by Settlement Executive Committee and cooperative officials before receiving the Cabinet approval and that upon vacation by the affected persons, the contractor took over the site on 13th March, 2015 apart from the area occupied by the applicants. At the moment 239 market stalls are complete except for the six to be erected on the section occupied by the applicants. The current complete market stalls cannot function as the remaining section is also where external works including the sewer, storm water drainage and solid waste receptacle are to be constructed.

15. In the Respondent’s view, by and large the key stakeholder is the Kibera Soweto East Zone ‘A’ community and that the community acts independently through Kibera Soweto East Settlement Executive Committee (SEC), Kibera Soweto East Zone ‘A’ Housing Cooperative Society Ltd., civil society organizations and local political leadership which needs to be enjoined in this matter.

16. The Respondents however denied that the demolitions conducted on 20th August 2016 were done by them or their agents and contended that if any other stakeholder in the project acted on their own, the respondents are not aware.  Similarly, the said auctioneers that descended on the property as claimed by the applicant were not acting on the instructions of the Respondents.

17. The Respondents therefore averred that they bear no responsibility for the destruction of the said property as they never issued any instructions to anyone to demolish the property of the applicant. Accordingly, the allegations that the Respondent is using public resources to do demolitions are not true and  insinuations that they are using the project to enrich themselves and their cartels are malicious and aimed at diverting the issue of the requirement for the applicants to vacate the site denying majority of the affected persons to benefit. To the Respondents, they have not appointed anyone to list, solicit or collect money from the beneficiaries.

18. The Respondents deposed that the market stalls are part of Kibera Soweto Zone ‘A’ slum upgrading project and cannot be treated separately and that the bona fide beneficiaries are to raise money to buy the stalls through their existing Kibera Soweto East Zone ‘A’ Housing Co-operative as it happened in the sale of 691 houses and this was the clarification given during the house key handing over function held on the 13th of July 2013 at the new housing estate.

19. The Respondents’ case was that the genuine beneficiaries of Kibera Soweto East Zone ‘A’ slum upgrading project are as enumerated in 2005 and captured in the master register then, whereby at that time the 2nd Respondent was not the Director of Slum Upgrading Department neither was he working in the Department then. It was disclosed that Cabinet approved sale of the project as seen in the memo dated 24th February 2016 on redeveloped houses and market stalls to the Zone ‘A’ community at community prices and the letter of offer with specific conditionalities quoted from the same and that the upgrading programme which started in 2005 is nearing completion and all those affected were enumerated.  It asserted that as earlier directed by the court only bona fide beneficiaries are to benefit from the project.  However, the whole process herein is to the benefit of the community at large thus the project is in the interest of the public. Therefore the applicants action of not vacating the project site is clearly intended to defeat this purpose by trying to reap more benefits at the expense of other persons.

20. It was contended that pursuant to the Court Order issued on petition No 304 of 2015, the Court directed that the Kenya National Commission on Human Rights to oversee the allocation of houses and ensure that only genuine beneficiaries reap from the benefits of the project as per the set criteria and that it is expected that also the market stalls will only benefit genuine target persons. Thereafter on 22nd March, 2016, the houses were successfully allocated to the beneficiaries through a ballot process overseen by the Kenya National Commission on Human Rights and the EACC was also involved in the implementation of the aforementioned Court Order.

21. It was deposed that the list of successful beneficiaries was generated by the Kenya National Commission on Human Rights and not by the respondents based on the master register of 2005 and other set criteria as projected in their letter. Therefore the applicants allegations that the respondents benefitted their children, girlfriends, mistresses, nominees and connected individuals are not true and of ill motive.

22. It was averred that the 2nd respondent has never restricted the applicants or their representatives from accessing or communicating with the Cabinet Secretary and the Principal Secretary. It was disclosed that the contract for the project has been extended several times due to the applicant’s failure to vacate the site and there are costs running in millions of Kenya Shillings associated with such extensions whose costs be borne by the applicants.

23. The Respondents therefore contended that they are not in contempt of Court, but rather it is the Applicants who are in contempt of Court due to their selfishness and have repeatedly declined to vacate the project site to complete the remaining market stalls, sewer line, storm water drainage and solid waste receptacle. It was therefore contended that the applicant’s actions are frivolous and vexatious and intended to derail/defeat the whole project and the Court was urged to issue orders compelling the applicants to vacate the site as they are infringing on the rights of others. Since the entire project is projected to benefit and uplift the lives and livelihoods of over 4,000 people, it was contended that it is not fair that their welfare is jeopardized by selfish interests of one or two individuals.

24. There was also an affidavit sworn by one Tom Ndeche, a resident of Kibera Soweto East Slums Zone A.

25. According to him, he had lived there here for the last twenty four years and one of the more than 600 families on whose behalf this suit was filed. To him, the applicants have also on their part been in contempt of court proceedings on diverse dates on 10th July, 2015, 13th July, 2015 and 23rd July, 2016 including but not limited to:

a. Calling for the eviction of the residents of Kibera Soweto Zone A which was against the court orders which were distributed by the ex parte applicants on diverse dates in December 2015.

b. Fencing and demarcating properties within Kibera Slums Soweto Zone A without proper cause and in instruction and in a clear case of contempt of court orders.

c. Enlisting its members in the intended list of beneficiaries leaving out genuine beneficiaries of the Soweto Market Stalls Zone A.

d. Destroying properties belonging to the interested parties and other residents of the Kibera Soweto Zone A

26. It was the interested party’s averment that whereas the applicants have a genuine claim in alleging that that the respondents have acted in contempt of court orders they have not come to this court with clean hands and have acted in bad faith with malice and unreasonably afflicted damage to the interested party’s properties and other beneficiaries they claim to represent despite them receiving demand notices informing them to desist from this particular actions.

27. The interested party therefore urged this Court to find the applicants and the respondent liable and to order them to pay him and other beneficiaries damages for the properties they stole, destroyed and demolished.

28. According to the interested party, the enumeration and intended resettlement of the beneficiaries of Soweto Zone A stall project has been marked by allegations of bribery and inclusion of underserving members to the list of beneficiaries occasioned by the applicants. The said discrepancies according to him include  the fact that:

i. Some of the beneficiaries of the stalls have been granted two (2) stalls in the project.

ii. One of the ex parte applicants John Demisi has enlisted all his family members and some of his friends as beneficiaries of the stalls (Nos. 38, 40, and 88)

iii. One of the Schools, Victory Hope Academy, linked with the applicants has listed its personnel as beneficiaries. (No. 275-281)

iv. Two Non-existent organizations also linked with the applicants have listed as part of the beneficiaries this include;

Little steps women group (no. 340)

Neighbourhood self-help group (no. 342)

v. Half of list of the 345 members are members not affected by the eviction.

vi. The list is not properly numbered and it has blank spaces with no clear reason afforded as who are the intended beneficiaries of the aforesaid numbers with no listed names.

vii. The beneficiaries were never consulted in relation to the aforesaid list.

29. The interested party therefore averred that the said discrepancies clearly go against the orders sought by the applicants that the respondent herein should only enlist the 345 members as beneficiaries.  T him, this is an action premised upon fraud and misrepresentation by the applicants.  It is also an act of bad faith taking into account that the applicants represent and protect the rights of the beneficiaries herein.

30. The interested party therefore urged the Court to ensure that its orders are obeyed and that its directions are followed to the letter. Accordingly, he prayed that the Court finds the respondents and applicants guilty of contempt of court for disobeying the orders of this Court given on 27th  November, 2014 and upon a satisfactory purge of this contempt, order the respondent to commence a fresh relocation program in compliances with the said orders.

Determinations

31. I have considered the issues raised in this application.

32. With due respect the manner in which the supporting affidavit was drawn made it difficult for the Court to properly comprehend the exact issue that the applicants were complaining about since some of the sentences were clearly disjointed while others were incomplete. I have however endeavoured to make the best of a bad situation. I must agree with the Respondents that part of the language employed by the applicants in these proceedings have no place in judicial proceedings. Judicial proceedings are meant to establish facts and to mete justice in accordance with the law and is not a platform of idiosyncrasy to unleash vituperative remarks. The employment of unsupported derogatory terms without basis are unnecessarily scandalous and ought not to find their way in judicial proceedings as that amounts to an abuse of judicial immunity. Those allegations are frowned upon under Order 19 rule 6 of the Civil Procedure Rules. In my ruling in this same matter given on 29th June, 2015 I had occasion to caution parties against this same conduct when I expressed myself as follows:

“I wish to remind parties and their legal representatives that affidavits ought to contain facts and facts alone. There is therefore no place in affidavits for derogatory remarks and innuendoes. In fact the law prohibits the inclusion in affidavits of matters which are deemed to be scandalous, irrelevant or oppressive. I must say some of the depositions in the replying affidavit filed herein were not meant to bring facts to the attention of the Court but to scandalise the applicants and their counsel. Such affidavits ought not to be admitted in evidence and the Court will not hesitate in future to strike out the same.”

33. In my view, counsel who continuously allow themselves to be used by parties to make such remarks may themselves not escape the Court’s reprimand.

34. In this case, it is clear that prayers 1 and 2 being interim reliefs do not fall for determination in this ruling. With respect to prayers 4, 7, 8 and 10, the said reliefs stem from allegations of contempt of Court orders. It is therefore important to interrogate the current position with respect to contempt of Court. Parliament vide Act No. 46 of 2016 enacted the Contempt of Court Act, 2016 which was assented to on 23rd December, 2016 and commenced on 13th January, 2017. That Act introduced various procedural provisions relating to contempt of Court particularly where the allegations of contempt are made against a State organ, government department, ministry or corporation as is the case in the instant matter. It may be argued that the provisions of the said Act ought not apply to contempt committed before the Act was commenced. However in Said Hemed Said vs. Emmanuel Karisa Maitha & Another Mombasa HCEP NO. 1 OF 1998it was stated as follows:

“The general rule is that when the law is altered during the pendency of an action or proceeding, the rights of the parties are to be decided according to the law as it existed when the action or proceeding was begun unless the new statute shows a clear intention to vary or affect such rights and such intention may be even by implication. But in the case of an enactment, which alters or affects only procedure or practice of the Court, the general principle is that it has a retrospective effect unless it has some very good reason against it”.

35. This position was confirmed by the Court of Appeal in Mistry Jadva Parbat & Company Ltdvs. Ameeri Kassim Lakha & 2 Others Civil Appeal (Application) No. 296of2001 in which the Court stated inter alia as follows:

“It is also a rule of construction of statutes that prima facie, if a provision of legislation affects procedure only, it operates retrospectively. Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation, the courts are guided by certain rules of construction and one of these rules is that if the legislation affects substantive rights, it will not be construed to have retrospective effect unless a clear intention to that effect is manifested. Whereas, if it affects procedure only, prima facie, it operates retrospectively unless there is a good reason to the contrary. But in the last resort it is the intention behind the legislation, which has to be ascertained, and the rule of construction is only one of the factors to which regard must be had in order to ascertain that intention”.

36. According to the said Act contempt includes civil contempt means wilful disobedience of any judgment, decree, direction, order, or other process of a court or wilful breach of an undertaking given to a court. It is therefore clear that the wilful disobedience of a judgement, decree or order properly constitutes contempt of Court. Section 30 of the said Act provides that:

(1) Where a State organ, government department, ministry or corporation is guilty of contempt of court in respect of any undertaking given to a court by the State organ, government department, ministry or corporation, the court shall serve a notice of not less than thirty days on the accounting officer, requiring the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.

(2) No contempt of court proceedings shall be commenced against the accounting officer of a State organ, government department, ministry or corporation, unless the court has issued a notice of not less than thirty days to the accounting officer to show cause why contempt of court proceedings should not be commenced against the accounting officer.

(3) A notice issued under subsection (1) shall be served on the accounting officer and the Attorney-General.

(4) If the accounting officer does not respond to the notice to show cause issued under subsection (1) within thirty days of the receipt of the notice, the court shall proceed and commence contempt of court proceedings against the accounting officer.

(5) Where the contempt of court is committed by a State organ, government department, ministry or corporation, and it is proved to the satisfaction of the court that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of any accounting officer, such accounting officer shall be deemed to be guilty of the contempt and may with the leave of the court be liable to a fine not exceeding two hundred thousand shillings.

(6) No State officer or public officer shall be convicted of contempt of court for the execution of his duties in good faith.

37. It is therefore clear that before any civil contempt of court proceedings are instituted in disobedience of a judgement, decree or order, the applicant must first move the Court to issue a notice to show cause against the accounting officer of the State organ, government department, ministry or corporation concerned. Such notice is to be served on both the accounting officer and the Attorney General. If no response to the notice is received, the Court may then at the expiry of the said thirty days’ notice period direct that contempt of court proceedings be commenced against the concerned accounting officer. In my view the thirty days’ period is meant to enable the Attorney General to give legal advice to the entity concerned and thus avoid the necessity of contempt proceedings. Where however the entity believes that contempt of court proceedings ought not to be commenced, the entity is required to within the said period show cause, in my view preferably by way of an affidavit why the said proceedings ought not to be commenced. The Court will then determine whether cause has been shown or not based on the material before it. Without the rules of procedure having been promulgated it is therefore my view that an application for notice ought to be accompanied by an affidavit and that application may be heard ex parte since the merits thereon may be dealt with when the cause is shown by the entity or public officer concerned.

38. Where no cause is shown and the contempt of court proceedings are commenced, the Court can however only find that officer guilty of contempt upon satisfactory proof that the said contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of the accounting officer.

39. It is therefore clear that prayers 4, 7, 8 and 10 in so far as they relate to contempt cannot be issued due to procedural non-compliance. Apart from that prayer 4 seeks an order against the 2nd Respondent who is not as yet a party to these proceedings. In fact the said person is being sought to be joined to these proceedings by prayer 7 which has not as yet been granted. To that extent also prayer 4 is premature, speculative and pre-emptive.

40.  In the judgement that provoked the instant application, when the Court granted liberty to apply, the Court did not draw a blank cheque to the parties to introduce fresh causes of action or to open new legal battle fronts in order to litigate matters which were not in the contemplation of the parties at the time the judgement was delivered. It is therefore my view that whereas the applicants and the interested party may well successfully sustain a claim for damages, to open up these proceedings in order to determine those claims would be unprocedural more so as those claims arose post judgement. Accordingly, prayers 6 and 9 are unsustainable.

41. That leaves prayers 4 and 5. It is clear that the directions which were given by this Court in its judgement in particular with respect to the filing of progress report within 60 days thereof were not complied with. In my view the cause of problems between the parties herein is the failure to file the said report as the issues which are the subject of this application would have been sorted out following the filing of the same.

42. Article 23(3) of the Constitution empowers this Court to grant appropriate reliefs. In the South African case of Minister of Health and Others vs. Treatment Action Campaign and Others [2002] 5 LRC 216, it was stated at page 249 as follows:

“Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant ‘appropriate relief’. It has wide powers to do so and in addition to the declaration that it is obliged to make in terms of s 172(1)(a) a court may also ‘make any other order that is just and equitable’ (s 172(1)(b))…Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamusor such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights…The courts have a particular responsibility in this regards and are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal…Nor would it necessarily be out of place for there to be an appropriate order on the relevant organs of state in South Africa to do whatever may be within their power to remedy the wrong here done to Mohamed by their actions, or to ameliorate at best the consequential prejudice caused to him. To stigmatise such an order as a breach of the separation of state power as between the Executive and the Judiciary is to negate a foundation value of the Republic of South Africa, namely supremacy of the Constitution and the rule of law. The Bill of Rights, which we find to have been infringed, is binding on all organs of state and it is our duty to ensure that appropriate relief is afforded to those who have suffered infringement of their constitutional rights”.

43. This Court has the power pursuant to Article 23 of the Constitution to issue appropriate relief including what is known as structural interdicts. Accordingly, the order that commends itself to me and which I hereby issue is that the Principal Secretary, Ministry of Land & Urban Development, do within 60 days from the date of service of this ruling prepare and file a comprehensive status report in respect of the resettlement process herein.

44. There will be no order as to costs.

45. It is so ordered.

Dated at Nairobi this 16th day of March, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Okemwa for the ex parte applicant

Miss Chimau for the 1st and 2nd Respondents

Mr Nyambane for the interested party

CA Mwangi