REPUBLIC OF KENYA

IN THE HIGH COURT

AT EMBU

CONSTITUTIONAL PETITION NO.2 OF 2011

IN THE MATTER OF:  ARTICLES 2(6), 22(2) (a, (3)(d), 23(1), (3) & 165 (3) (a), (b), (d) (I), (II) OF THE CONSTITUTION OF KENYA 2010

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 26(1), (3), 27(1), (2), 28, 29 ( c ), (d), (f), 35, 40(1) (a), (b), (3), (4), 43 (1) (b), (c), (f), 45(1), 47 (1), (2), 50(1), 53 ( C ) (d), (2) & 57 (b) and (c ) OF THE CONSTITUTION OF KENYA

BETWEEN

IBRAHIM SANGOR OSMAN…………………………………………………………PETITIONER (ON HIS OWN BEHALF AND ON BEHALF OF 1, 122 EVICTEES OF MEDINA LOCATION, MUNICIPAL COUNCIL OF GARISSA)

~VS~

1.   THE HON MINISTER OF STATE FOR PROVINCIAL ADMINISTRATION & INTERNAL SECURITY………………………………………………………….1ST RESPONDENT

2.   THE MUNICIPAL COUNCIL OF GARISSA………………………..2ND RESPONDENT

3.   THE HON. MINISTER FOR LANDS……………………………3RD RESPONDENT

4.   THE HON. ATTORNEY GENERAL……………………………………..4TH RESPONDENT AND

GLOBAL INITIATIVE FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS SOCIO-ECONOMIC RIGHTS INSTITUTE COMMUNITY LAW CENTRE

CENTRE FOR ECONOMIC AND SOCIAL RIGHTS CENTRE FOR EQUALITY RIGHTS IN ACCOMODATION SOCIAL RIGHTS ADVOCACY CENTRE

MALCOLM LANGFORD…………………………INTERVENING AS AMICI  CURIA

JUDGMENT

This Petition was filed on 23/2/2011 by the Petitioner on his behalf and on behalf of 1,122 persons (all hereinafter referred to as (“the Petitioners”) who were evicted from Bularika, Bulamedina, Sagarui, Naima, Bulanagali and Gesto (commonly known as “Medina location”) on

24th, 30th  and 31st  December 2010 by the officers of 1st  and 2nd  Respondents.   Those evicted

included children, women and the elderly.   Some of the children were school-going.   The Petitioners were evicted from unalienated public land in respect of which title deeds have not been issued.  The land is within the jurisdiction of the 2nd Respondent.  It had been occupied by the Petitioners since 1940s, initially as grazing land but in the 1980s they put up permanent and semi-permanent dwellings in which they were living prior to eviction.

Sometimes in December 2010 word started going round that the local provincial administration and  the  2nd  Respondent  were  planning  to  evict  the Petitioners.    On  3/12/2010  the  District Commissioner, Garissa by name Samson Macharia came to the location in a GK Land-rover.  He came along with a bulldozer and four saloon cars.  In the vehicles were administration police officers and a group of unidentified youths.  The District Commissioner informed the Petitioners that he had come to prepare the ground for the construction of a ring-road and warned that any homestead that fell along the road would be deemed to be on Government land and would be

demolished.  The team proceeded to mark the area where the purported road would pass, and left thereafter.  There was no further communication.  The Petitioners made numerous attempts to have audience with the District Commissioner and the officers of the 2nd  Respondent but were not successful.