MOI UNIVERSITY

SCHOOL OF LAW

RESEARCH PAPER
FLB 400

ENFORCEMENT OF THE RIGHT TO HOUSING UNDER THE KENYAN

CONSTITUTION: A CRITICAL ANALYSIS OF THE REASONABLENESS
STANDARD/TEST APPLIED IN THE ENFORCEMENT OF THIS RIGHT.

BY:
MURIUKI JACKSON MURIITHI
LLB/42/12

RESEARCH PAPER SUBMITTED IN PARTIAL FULFILMENT OF THE

REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS (LLB) DEGREE
MOI UNIVERSITY, SCHOOL OF LAW

SUPERVISOR:
MR. MUTAI

AUGUST 2015

DECLARATION
I, Muriuki Jackson Muriithi of LLB/42/12, do hereby declare this thesis as my original work
in substance and style and has not been presented in any other institution and/ or is not being
presented in any other institution for conferment of an LLB degree or for any other academic
credentials. Due acknowledgement has been given for any work that has been cited.
As such, this work has been presented to the undersigned supervisor and has been duly
approved.
Dated at Moi University on this ..

Day of ..2015

...............................................

..............................................

MURIUKI JACKSON MURIITHI

Date

(Student)

..................................................

..............................................

MR. VINCENT MUTAI

Date

(Supervisor)

DEDICATION
I dedicate this work to my family whose persistent efforts of support and encouragement have
seen the completion of this dissertation. May the Lord continue showering His love and
blessings upon them.

ii

ACKNOWLEDGEMENT
My unrestrained thanks first go to the Almighty God for the grace that He has shown to me
throughout this academic journey. All glory to Him.
Secondly, I would like to express my sincere gratitude to my supervisor Mr. Vincent Mutai
for sacrificing his time to supervise this work, for his invaluable comments and without
whose guidance, the writing of this dissertation would not have been possible.
I would also like to thank my family first my father Mr. Muriuki for his financial support in
my pursuit for education and secondly my mother, Mary Wanjiku, for her constant
encouragement and prayer.
Lastly, I also take this chance to thank all my campus friends for their company, meaningful
engagements and assistance that has helped in moulding my character. Special thanks go to
Mark Omedo and Victor Liech in helping me towards moulding my research topic.
May the Lord Bless You All.

iii

TABLE OF CONTENTS
DECLARATION................................................................................................................ i
DEDICATION .................................................................................................................. ii
ACKNOWLEDGEMENT ................................................................................................ iii
LIST OF ABBREVIATIONS .......................................................................................... vii
LIST OF CONSTITUTIONS.......................................................................................... viii
LIST OF STATUTES ....................................................................................................... ix
LIST OF CASES ............................................................................................................... x
CHAPTER ONE ................................................................................................................... 1
1.0 Introduction ................................................................................................................. 1
1.1 Background. ................................................................................................................ 3
1.2 Significance of Study. .................................................................................................. 5
1.3 Statement of The Problem............................................................................................ 6
1.4 Research Objectives..................................................................................................... 7
1.5 Research Hypothesis. ................................................................................................... 8
1.6 Research Methodology ................................................................................................ 8
1.7 Literature Review. ....................................................................................................... 8
1.8 Chapter Breakdown ................................................................................................... 13
CHAPTER TWO ................................................................................................................ 15
2.0 THE RIGHT TO HOUSING UNDER THE KENYAN CONSTITUTION .................... 15
2.1 Introduction ............................................................................................................... 15
2.1.1 Why the right to housing? .................................................................................... 16
2.1.2 The evolution of social economic rights and the right to housing internationally .. 18
2.1.3 Constitutionalisation of the right to housing in Kenya.......................................... 20
2.1.4 The relationship between housing rights and other rights. .................................... 23
2.2 The legal framework on the right to housing in Kenya ............................................... 24
2.2.1 International legal instruments ................................................................................ 24
2.2.2 Regional legal instruments................................................................................... 26
2.2.3 The legal framework on housing under the constitution of Kenya 2010 ............... 27
2.2.4 Policy framework as to the right to housing in Kenya .......................................... 29
2.3 Conclusion................................................................................................................. 35
CHAPTER THREE............................................................................................................. 36
3.0 ON THE CHALLENGES AND THE WAY FORWARD ON THE STANDARD OF
ENFORCEMENT OF THE RIGHT TO HOUSING IN KENYA. .................................... 36
iv

3.1 Introduction. .............................................................................................................. 36

3.1.1 The status of realisation of the right to housing in Kenya ..................................... 37
3.2 The nature of state obligations: defining state obligations as per the Constitution in
regard to the right to housing. .......................................................................................... 40
3.2.1 Negative obligations of the state .......................................................................... 41
3.2.2. Positive obligations of the state .......................................................................... 41
3.2.3. Reconciling Positive and Negative Obligations in the Right to Housing ............. 41
3.2.4 Limitations of the Right to Housing ..................................................................... 42
3.2.5 Challenges on the Kenyan legislation and housing policies. ................................. 46
3.3 Assessing the Reasonableness test applied in Kenyan courts in the realisation of the
right to housing................................................................................................................ 48
3.3.1 The origin of the reasonableness test ................................................................... 49
3.3.2 The nature of the reasonableness test: the pros and cons ...................................... 50
3.4 On the way forward on the standard of enforcement of the right to housing: an
alternative in the test applied in the enforcement of the right to housing in Kenya............ 54
3.4.1 The minimum core standard. ............................................................................... 54
3.4.2 Enactment and amendment of laws and policies. ................................................. 56
3.5 Conclusion................................................................................................................. 57
CHAPTER FOUR ............................................................................................................... 59
4.0 COMPARATIVE STUDY: Drawing Lessons From South Africa, India And Colombia.
........................................................................................................................................ 59
4.1 Introduction ............................................................................................................... 59
4.2 India .......................................................................................................................... 60
4.2.1 Constitutional framework .................................................................................... 60
4.2.2 Public interest litigation ....................................................................................... 60
4.2.3 Commissions of inquiry....................................................................................... 61
4.2.4 Judicial activism in the enforcement of the right to housing and a minimum core
obligation. .................................................................................................................... 62
4.2.5 The Chameli Singh case....................................................................................... 63
4.2.6 The Olga Terris case. .......................................................................................... 64
4.2.7 Francis Coralie Mulin v Administrator ................................................................ 66
4.2.8 Observations. ...................................................................................................... 66
4.3 South Africa. ............................................................................................................. 67
4.3.1 The Constitutional Framework ............................................................................ 67

4.3.2 The Grootboom case............................................................................................ 68

4.3.3 The reasonableness test applied in the Grootboom case. ...................................... 69
4.3.4 Observation ......................................................................................................... 71
4.4 Colombia ................................................................................................................... 72
4.4.1 Sentencia T-025 de 2004 ..................................................................................... 72
4.4.2 Definition of Minimum Core by the Colombian constitutional court. ................... 74
4.4.3 Simple and Complex Orders ................................................................................ 75
4.4.4 Supervisory jurisdiction....................................................................................... 75
4.4.5 Observation ......................................................................................................... 76
4.5 Epilogue .................................................................................................................... 76
CHAPTER FIVE. .............................................................................................................. 79
5.0 CONCLUSION AND RECOMMENDATIONS............................................................ 79
5.1 Conclusion................................................................................................................. 79
5.2 Recommendations...................................................................................................... 83
5.2.1 Recommendations to the judiciary ....................................................................... 83
5.2.2 Recommendations to the state.............................................................................. 85
5.2.3 Constitutional Amendments................................................................................. 88
5.2.4 Recommendation to other institutions .................................................................. 88
BIBLIOGRAPHY ............................................................................................................... 90

vi

LIST OF ABBREVIATIONS
ICESCR

International Covenant on Economic Social and Cultural Rights

CESCR

Committee on Economic Social and Cultural Rights

CEDAW

Convention on the Eradication of Discrimination Against Women

CRC

Convention on the Rights of the Child

UDHR

Universal Declaration of Human Rights

UN

United Nations

HIV/AIDS

Human Immunodeficiency Virus/ Acquired Immunodeficiency Syndrome

COFEK

Consumer Federation of Kenya

SERs

Social Economic Rights

ICCPR

International Convention on Civil and Political Rights

UNDP

United Nations Development Programme

SERAC

Social and Economic Rights Action Centre

PRSPs

Poverty Reduction Strategy Papers.

IDPs

Internally Displaced Persons

NCBDA

Nairobi Central Business District Association

NHC

National Housing Corporation

KENSUP

Kenya Slum Upgrading Programme

NGOs

Non Governmental Organisations

vii

LIST OF CONSTITUTIONS
Constitution:

page(s)

Constitution of Colombia 1991:

Article 51
Art. 64
Art. 86
Art. 87
Art. 88

.........................................
..........................................
..........................................
..........................................
.........................................

72
72
72
72
72

Constitution of India:
Art. 14
Art. 19
Art. 21
Art. 37
Part IV

.........................................
65
.........................................
65
......................................... 62, 63, 64, 66, 67
.........................................
60
.........................................
59, 63

Constitution of Kenya 1963 as amended to 2008 (repealed):

Chapter V

.......................................

20, 68

Constitution of Kenya 2010:

Art. 2(5), (6)
Art. 20(3) (b)
Art 20(5)
Art 21
Art 24
Art 23
Art 35
Art 43(1) (b)
Art 53
Art 63
Art 165

.......................................
80, 83
......................................
28, 34
.......................................
28
.............................. 1, 6, 36, 43, 44, 56, 70, 83
....................................
2, 42, 56
...................................
88
...................................
36
...........................1,3,6,8,15,23,27,28,36,40,88
..................................
1
.................................
85
................................
28

Constitution of the Republic of South Africa 1996:

Section 26
Section 38

.................................
................................

viii

1, 6, 10, 36, 55, 67, 69

68

LIST OF STATUTES
page(s)

Statute:

Building Societies Act:

Part IV

21
.........................................................

21, 29

.........................................................

21

Childrens Act cap 141:

Section 98
Housing Act Cap 117:
Section 2
Section 3
Section 7(1) (b)

21,
...................................................
....................................................
...................................................

46

15
29, 39, 46
29

Kenya Railway Corporation Act:

Section 16(3)

..................................................

21

Prevention, Protection and assistance to internally displaced persons and affected

communities Act (no.56 of 2012):
Sections 5, 6, 7, 8, 9

.................................................

89

Rent Restrictions Act Cap 296:

Section 38

...............................................

48

Sectional Properties Act no.21 of 1987

Sections 4- 16

................................................

29

Supreme Court Act no. 7 of 2011

Section 3(c)
...............................................
Section 3 (d)
...............................................
Urban and Cities Act no.13 of 2011

57
57

Section 36(1)

87

..............................................

ix

LIST OF CASES
Case:
page(s)
Bandhua Mukti Marcha vs. Union of India AIR (1984) SC 802
62
Belporto school governing body v Premier of Western Cape Province (2002) (3) SA 265 10
Chameli Singh and others v State of UP and another (1996) 2SCC 549
63, 67
Charo wa Yaa v Jama Abdi Noor and 4 others High Court of Kenya at Mombasa
Miscellaneous Civil Application No. 8 of 2011 (unreported)
4, 9, 34, 35, 51, 53
Consumer Confederation of Kenya (COFEK) v Attorney General & 4 Others, High Court
Petition No.88 of 2011
11, 33
Francis Coralie v. The Union Territory of Delhi, (1981) 1 SCC 608
62, 66
Government of South Africa v Grootboom and others, Constitutional Court of South Africa,
Case CCT 11/00, 4th Oct 2000
2,9,32,33,35,44,50,52,53,55,68,74,77-80
Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C).
71
John Kabui Mwai & 3 others v Kenya National Examination Council & 2 others [2011] eklr
51
Kemai and 9 others v Attorney General and 3 others (1999) KLR 1 (&L) 326
4, 32
Kepha Omondi Onjuro and others v A.G. and 5 others (2015) eklr
83
KurraSubbaRao v. Distt. Collector [1984 (3) APLJ 249
64
Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 721
(CC).
36, 50, 92
Mitubell Welfare society v the A.G and 2 others (2011) eklr
46
Olga Tellis & Others vs. Bombay Municipal Council (1985) 2 SUPP SCR51
64
Patricia Achieng Osero and others v The Attorney general Unreported (petition No. 409 of
2009)
11
Paul Mungai and 20 others v The Attorney General and 3 others (2010) eklr
4, 20
Peter Waweru v R (2010) eklr
4, 21
R v Enfield LB (2002) EWHC 2282
41
S.P. Gupta vs. Union of India AIR (1982) SC 149
61
Satrose Ayuma and 11 others v Registered Trustees of the Kenyan Railways Staff Retirement
benefits scheme and 2 others (2011) eklr
4, 23, 46
Sentencia T-025 of 2004
72, 73
Shantistar Builders v Narayan K Totame (1990) 1 SCC 527
67
Social and Economic Rights Action Centre (SERAC) v Nigeria 2001 AHRLR 60 (2001)72, 73
Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696
10, 52
Susan Waithera and 4 others v Town Clerk, Nairobi City Council and 2 others (2011) eklr; 4,
32 46
Tanudjadja v Canada (2014 ONCA 852)
49

CHAPTER ONE
1.0 Introduction
The right to adequate housing has been entrenched as a justiciable right in the Constitution of
Kenya. Article 43(1) (b), provides that every person has the right to accessible and adequate
housing and to reasonable standards of sanitation. The right to housing is also provided for,
in relation to children, in Article 53 of the Constitution which guarantees every childs right
to shelter. Despite the guarantee of this right under the Constitution, the Constitution is silent
on the test to be applied in the determination of violation of this right under article 21 (2).
This is in contrast to the South African constitution which is clear under section 26 (2) on the
right to housing which provides that the test to be applied is the reasonableness test.1 Just as
the South African courts,2 the Kenyan courts have adopted this test in adjudicating cases on
the right to housing.3
This standard however, as noted by some scholars like Githii and Orago should not be
applied in Kenya as a means of determining the violation of the right to housing and other
social economic rights.4 This test has also been noted as an internal limitation in the
realisation of the right to housing and thus the Kenyan courts must take this into account in

Constitution of the Republic of South Africa 1996, S. 26(2)

For example in the Soobramoney decision (Soobramoney v Minister of Health 1998 (1) SA 765(cc) para. 19,
the court rejected the minimum core obligation assessment as was presented by the amicus curiae by saying that
the standard did not create a positive individual right to health on demand and instead preferred the application
of the reasonableness test. The same test is applied in Para. 41 and 42 of the Government of South Africa v
Grootboom and others, Constitutional Court of South Africa, Case CCT 11/00, 4th Oct 2000
3
Susan Waithera and 4 others v Town Clerk, Nairobi City Council and 2 others (2011) eKLR; (online copy at
www.kenyalaw.org as at 1st April 2015) pg.8-10 Satrose Ayuma and 11 others v Registered Trustees of the
Kenyan Railways Staff Retirement benefits scheme and 2 others (2011) eKLR para. 61
4
John Githii, The case for the justiciability of socio-economic rights in Kenya: drawing from the experiences in
South Africa, India and the United States (2008) available at www.etd.ceu.hu/2009/githii_john.pdf as at 27th
August 2015 pg.77; Orago NW, limitation of socio-economic rights in the 2010 Kenyan Constitution: A
Proposal for the adoption of a proportionality approach in the judicial adjudication of socio-economic rights
disputes (2013) per 71 Potchefstroom Electronic Law journal pg. 184 both note that the test has SERs
limitations not envisaged by our constitution and should therefore not be imported by our courts.
2

adjudication of social economic rights and therefore avoid the importation of social economic
rights limitations that are not envisaged our constitution.5
The reasonableness test is also problematic in the sense that the applicant is expected to
satisfy the court that a particular policy does not meet a reasonable standard.6 This task can
be daunting for the poor victims who have to meet the burden of proof. In circumstances
where they do so, the remedy seems to lie at the policy level so that the individual claimants
seem not to benefit. The reasonableness test can be located in the administrative law due to
its focus on procedural and technical issues related to the content and implementation of
socioeconomic policy rather than on the satisfaction of the survival needs of the poor and the
vulnerable in the society. For example in the Grootboom South African case, even though the
litigants litigated successfully, it has been noted that little has changed in terms of the
lifestyle of the litigants.7
The ineffectiveness of the reasonableness standard is buttressed by the doctrine of functus
officio. It is in this line that it has been accepted that despite the principle of functus officio
which require that the courts disassociate themselves with disputes once they have been
concluded, it is necessary for the judges to come up with post judgements interventions in
order to sustain oversight on the implementation of court orders so as to monitor progress.
This is so because it has been accepted that by just getting court orders on the right to housing
would not be enough.8
This research is aimed at criticising the application of this standard and proposes for the
application of the minimum core approach that is recommended under international law

Supra note 4
ibid
7
M Swart Left out in the cold? Grafting Constitutional remedies for the poorest of the poor (2005) 21 South
African Journal on Human Rights pg.215
8
ICJ Kenya, ICJ Kenya Lawyers laud and lament on the right to housing in Kenya (2014) available at
http://www.ij-kenya.org as at 6th March 2015
6

instruments such as the International Covenant on Economic Social and Cultural Rights
(ICESCR) and General comment 3 of the Committee on Economic Social and Cultural
Rights (CESCR).9 It is noteworthy that Kenya ratified the covenant on 6th January 1976. This
research supports the proposition that the minimum core approach is the standard that should
be applied in Kenya and it is well supported by the above argument.
As Jeane Woods puts itall human beings need a certain minimum caloric intake to stay
alive and healthy. An emphasis on the need to have a minimum core content in the
realisation of every social economic right.
1.1 Background.
There has been an evolution of human rights over the years that has led to the development of
social and economic rights which are now considered to be having the same status as civil
and political rights. This has been seen by the inclusion of these rights under different
international legal instruments such as the ICESCR,10 CEDAW- the Convention on the
elimination of all forms of discrimination against women11 and CRC- the Convention on the
rights of the children under article 27.12
Many nations globally have also inculcated social and economic rights in their Constitutions.
13

Among the embraced rights thereon includes the right to housing. The right to housing is

also recognised by other international law instruments such as the UDHR and just as other
social economic rights, it imposes both positive and negative obligations on the state.
However, the right to housing has constantly been violated in Kenya with constant
9

Michael Nderitu (eds.) ,Case digest on the enforcement of economic, social and cultural rights (2014) pg.46
International Covenant on Economic Social and Cultural Rights adopted on 16th December 1966 came into
force in 3rd January 1976
11
Convention on the Elimination of all forms of Discrimination Against Women adopted in 1979 by the UN
article 14 (2) h
12
Convention on the right of the children (CRC) adopted on 20th November 1989 entered into force 2nd
September 1990
13
Constitution of Kenya 2010, article 43 as an example
10

evictions being the order of the day.14 Before the enactment of the current Constitution, the
courts decisions were inconsistent with the court refusing to grant the right to housing as seen
in the case of Kemai and 9 Others v. Attorney General and 3 others where the court refused
to rely on the right to life to grant the petitioners their right to shelter. The court stated that
they were destroying the forest.15 This decision in which the court refused to rely on the right
to life can be contrasted to the decision in Peter Waweru v R where the court construed the
right to life to mean the right to a clean and healthy environment.16 In addition, in Paul
Mungais case, the court of appeal continued to bar the respondents from evicting the
applicants as it would be wrong to allow such since it would result in violation of their rights
and thus inappropriate. The court continued to further note that the right to life under the
former Constitution meant more than the right to be allowed to live or exist.17
Upon the promulgation of the current Constitution, the courts have been consistent in
protecting applicants from evictions and deprivation of their right to housing as seen in the
cases of Susan Waithera Kariuki and 4 others v The town clerk, city council of Nairobi and 4
others (2011) eklr, Satrose Ayuma and 11 others v Registered Trustees of the Kenya Railway
staff Retirement Benefits Scheme and 2 others (2011) eklr. However, the courts have also
been inconsistent in the right to housing as seen in Charo wa Yamaas case in which the high
court in Mombasa failed to appreciate the fact that socio-economic rights are no longer
aspirational by holding that the right to housing as contained in the Constitution is:

14

Paul Mungai Kimani and 20 others v The Attorney General and 3 others2010 (eKLR) pg.9-13 where the
court of appeal held that it would be wrong to allow the respondents to demolish the structures erected on the
land by the applicants and evict them. This is among the many cases that depict arbitrary eviction in Kenya.
15
Kemai and 9 others v Attorney General and 3 others KLR 1 (&L) 326
16
Peter Waweru v R (2010) eKLR pg. 7
17
Supra note 14

Not a final product of dispensation but an aspirational right which the state is to endeavour
to render progressively.18
This decision shows the avoidance by the court to enforce the right to housing. This is an
error by the court since once socio economic rights were entrenched in the Constitution, they
are supposed to be enforceable otherwise they would amount to mere shenanigans by the
framers of the Constitution.
Despite this decision being inconsistent with the rest discussed above, the adjudication by the
courts on the right to housing has been consistent with the application of the reasonableness
standard being a common phenomenon. It is noteworthy that the litigation of the right to
housing in Kenya has mostly been based on negative obligations of the state.19
1.2 Significance of Study.
This research is aimed at providing an alternative approach in the enforcement of the right to
housing. It will begin by exposing the inadequacies that are there in the law and in the
judicial interpretation in the enforcement of the right to housing.
This research will espouse on the need to avoid the application of the reasonableness test in
the Kenyan courts. It will show the inadequacies of applying this test and will stress on the
application of the minimum core approach. It is the basis of this study that a minimum core
approach is the best test in the evaluation of both positive and negative obligations of the
state towards the progressive realisation of the right to housing.
The necessity to have a minimum core approach will also be central to informing the other
arms of the government on the need to have laws governing activities such as evictions which
18

Charo wa Yaa v Jama Abdi Noor and 4 others High Court of Kenya at Mombasa Miscellaneous Civil
Application No. 8 of 2011 (unreported)
19
East African Human Rights Centre, A compendium on economic and social rights cases under the
Constitution of Kenya 2010 available at http://eachrights.or.ke/pdf/2014/A-Compendium-On-Economic-AndSocial-Rights-Cases-Under-The-Constitution-Of-Kenya-2010.pdf as at 27th march 2015 pgs. 26-35

have been common, unregulated and arbitrary in Kenya.20 Evictions have been central to
violation of the right to housing in Kenya.21 A minimum core standard of enforcement means
a minimum core obligation on the state in provision of adequate and accessible housing.
An annotation is required on the fact that the special rapporteur on the right to housing has
stated that a series of failures to act constitute violation of the right to housing.22 Amongst
them include the failure to incorporate and implement acceptable international minimum
standards of achievement of the right to housing.23 An example is: there should not be an
eviction without an alternative being provided. This research will be important to the
judiciary in their obligation to enforce the right to housing; the executive in the formulation
of housing policies and the legislature in enactment of laws that prevent certain acts like
arbitrary eviction, grabbing of community land etc.
1.3 Statement of the Problem
Despite borrowing heavily from the South African Constitution, the Kenyan Constitution
does not provide for the test to be applied in the enforcement and determination of violation
of the right to housing as its South African counterpart.24 The South African constitution is
express in requiring the application of the reasonableness test as per the wording of section
26(2).
Contrastingly, Kenyan courts have been borrowing heavily from the South African
jurisprudence without being keen on this difference. As a result, the courts in Kenya are now
applying the reasonableness test in the adjudication of the right to housing. This test
20

Hakijamii, Assessment of the realisation of the right to housing in Kenya 2009-2010 available at
http://www.hakijamii.org/kenya accessed 10th march 2015 Pg18-19
21
As can be adduced from the fore-mentioned cases
22
Scott Leckie, The justiciability of housing rights (1995)available at http://www.alhrreosurcescenter.org/admini as at 5th may 2015 pg. 35
23
ibid
24
Contrast article 43(1) (b), article 21(2) of the Kenyan constitution 2010 and S.26 (2) of the South African
Constitution 1996. The South African constitution provides for reasonableness of state policy.

ought not to be applied in Kenya as it has been noted to be a limitation in the realisation of
social economic rights and to be weak in the realisation of positive obligations of the state.25
Application of this test will also be problematic in cases which will be premised on the
positive obligations of the state. The test seems not to have a remedy in case of violation of
positive obligations due to its over-focus on procedural technicalities and a hands off
approach to human rights.
1.4 Research Objectives
This research paper is aimed at:
1. Assessing the standard of reasonableness as has been applied by the Kenyan courts
through analysis of selected housing rights cases.
2. Exposing the challenges on the reasonableness test applied in the adjudication of the
right to housing.
3. Assessing the state of the realisation of the right to housing in Kenya.
4. Showing the necessity of application of the minimum core standard in the realization
of the right to adequate and accessible housing.
5. Assessing the legal framework and policies developed by the state in the realization of
the right to housing as a step towards a minimum core obligation on the state.
6. Carrying out a comparative study with other jurisdictions.
The purpose of these objectives is to accent the necessity to apply the minimum core
approach which is pivotal in meeting at least the minimum right to housing to be enjoyed by
all citizens. It is will also inform on the need to enact laws and policies geared towards
meeting the minimum of the right to housing. In carrying out this task, a comparative study
will be exemplar on the way forward on the application of the minimum core test in Kenya.

25

Supra note 4

1.5 Research Hypothesis.

1. The reasonableness test is very weak in the realisation of the right to housing.
2. The state has done little towards fulfilling its obligations as stipulated under article
21(2) in the progressive realisation of the right to housing.
3. A minimum core test is far much better in the realisation of the right to housing unlike
the reasonableness standard.
4. There is a need for revisions, enactments and implementation of laws and policies as a
step to ensure that the minimum core obligations of the state are met.
5. There are other jurisdictions that apply the minimum core approach in the
adjudication of the right to housing successfully.
1.6 Research Methodology
This research is going to apply qualitative technique. It will be based on analysing journal
articles, information extracted from textbooks from related fields, newspapers articles,
selected internet materials and international legal instruments.
1.7 Literature Review.
The drafters of the Constitution ideated a high goal of transforming the Kenyan society from
an unequal society to a society where the life of every citizen would be improved. This
concern is well evidenced by an expanded bill of rights that entails socio-economic rights in
which the right to housing is encompassed.26
However, there has been a lot of criticism from scholars on entrenchment of social economic
rights including the right to housing in the constitution. Jeremy Waldron argues that the
inclusion of these rights in the Constitution is meant to favour the lazy and the feckless over

26

Constitution of Kenya, preamble; article 43 which covers on SERs

the responsible and the deserving in a world of full of limited resources.27 This argument can
be opposed by Liebenbergs argument that the protection of socio-economic rights ensures
equality and such inclusion in the Constitution is meant to ensure that the socio-economic
needs of the poor are looked into in order to uplift their human dignity.28
It is utterly a misconception to claim civil and political rights are much more important than
social economic rights such as the right to housing as some scholars tend to argue.29 This is
because the two sets of rights are interdependent and cannot exist devoid of each other. Of
what importance would be the right to speech to someone with nowhere to sleep? The two
sets of rights are thus equally important.30
As argued in the Charo case31, the right to housing is not a final product of dispensation but
an aspirational right, which the state is to endeavour to render progressively. However, the
right to housing is very important and ought to be enforced via both positive and negative
obligations as placed on the state. There is also a need to ensure that the standards of
enforcement are set as a guarantee that that right will be achieved. Admittedly there have
been challenges in the achievement of this right with the government doing little to ensure
that every citizen has accessible and adequate housing32 while the judiciary as seen in the
South African context has come under criticism for failure to exercise supervisory
jurisdiction to ensure that the government carries out the judicial orders handed against it. As
a result the right to housing even though litigated successfully in the Grootboom case, little
27

Jeremy Waldron, Socio-economic rights and theories of justice (2010) available at

http://ssrn.com/id=1699898 as at 3rd May 2015 pg.2-3
28
S Liebenberg South Africas evolving jurisprudence on socio-economic rights: An effective tool to
challenging poverty? (2002) 2 Law, Democracy & Development 159pg. 16
29
Christopher Mbazira, Litigating socio-economic rights in South Africa: A choice between corrective and
distributive justice (2009) pg.57
30
Redson Edward Kapindu, From the global to the local The role of international law in the enforcement of
socio-economic rights in south Africa (2009) social economic project 6 available at
http://repository.uwc.ac.za/xmlui/bitstream/handle/10566/232/KapinduSocioEconomicRightsEnforcement2009.pdf?sequence=1 as at 18th February 2015 pg.16
31
Supra note 9
32
Betty Rabar (eds.), Assessment of the right to housing in Kenya 2011-2012 pg.13 available at
http://www.hakijamii.org as 5th May 2015

has changed among the petitioners of that case.33 The standard of enforcement of the right to
housing also needs to be more expletively included in the law instead of leaving the
discretion to the courts in Kenya to grapple with the matter.
As noted by Habitat,34 it can be argued that the standard of enforcement that should apply in
Kenya is the minimum core since Kenya is a signatory of the ICESCR and ratified the
Convention in 1976. However, despite being a signatory and giving reports to the committee
on economic social and cultural rights (CESCR), the Kenyan courts have been borrowing
from South African jurisprudence which has already rejected the provision of the ICESCR on
the application of the minimum core test. The South African constitutional court uses the
reasonableness test as a standard of enforcement. However, the reasonableness test should not
apply in Kenya since our constitutional wording is different from the South African one.
In addition, borrowing from the South African jurisprudence is problematic. This is because,
the South African court of human rights has come up with another standard of enforcement
called the equal treatment rationality test. This test was applied in the Soobramoney and
Belporto cases.35 Kenya should thus have its own standard of enforcement of the right to
housing instead of importing a jurisprudence that is unpredictable and variant.
As per the U.N special Rapporteur on adequate housing report, there is a recommendation to
the U.N and the member states to include and fully integrate the right to adequate housing in
urban planning and housing policies both at local and national levels.36 However, such an
inclusion is not a guarantee for the enforcement of the same. This therefore calls for there to
be a standard of enforcement in which the courts will rely in determining where the state has
33

Supra note 7
Habitat, SRAH: Mission to Kenya on the Rights to Adequate Housing available at http://www.hicnet.org/topdf.php?tupe=D&pid=2708 as at 5th march 2015 pg.1
35
Belporto school governing body v premier of the western cape province (2002) (3) SA 265; Soobramoney v
Minister of Health (kwa Zulu- Natal) 1998 (1) SA 769 (cc)
36
Adequate housing as a component of the right to an adequate standard of living, UN/63/275 (2008) ( Note by
the secretary general)
34

10

violated the right to housing. The internationally recommended standard is the minimum core
approach and it should be applied in Kenya.
By borrowing the reasonableness standard from South Africa, the Kenyan courts have ended
up misinterpreting the law and disregarding the spirit of the Constitution which largely differs
from the South African Constitution. As noted by Jotham, the Kenyan courts should be very
careful in borrowing their jurisprudence especially based on the standards of enforcement.
This is because; South Africa has not ratified the ICESCR like Kenya has.37 This means
therefore that the use of the reasonableness standard by Kenya is a violation of article 2(6) of
the Constitution which states that treaties ratified shall form part of Kenyan law. The South
African jurisprudence on the standard of enforcement should therefore not be imposed in
Kenya.
Justice Mumbi Ngugi in Patricia Achieng Osero,38 applied the distributive justice philosophy
as a standard of enforcement but later rejected the same argument in the COFEK case in
which she applied the reasonableness standard as applied in South Africa39. As Orago notes,
it is necessary for the judges to take into account the adjudication of SERs and not import
SER limitations that are not envisaged by the Constitution.40 In his paper he proposes for the
adoption of a proportionality principle as a standard of enforcement.

37

Jotham Okome Arwa, Litigating socio-economic rights in domestic courts- the Kenyan experience (2012)
Paper presented at The Colloquium on the African Charter on Human and Peoples Rights held in Cape Town
South Africa between 7th and 10th November 2012
38
Patricia Achieng Osero and others v The Attorney general Unreported (petition No. 409 of 2009) this case
was brought by HIV/AIDS infected persons challenging a new law that prohibited the importation of
generic drugs arguing that that law infringed upon their right to health
39
COFEK v A.G and 4 others (2012) Para 39
40
Orago NW, limitation of socio-economic rights in the 2010 Kenyan Constitution: A Proposal for the adoption
of a proportionality approach in the judicial adjudication of socio-economic rights disputes (2013) per 71
Potchefstroom Electronic Law journal pg.184

11

The use of reasonableness test by the courts is too thin on the enforcement of positive
obligations.41 This test tends to favour the state and the state may thus escape responsibility
by claiming and showing by any means that there is a limitation of resources in achieving the
right to housing.
Despite the inclusion of the right to housing, there have been several cases of forced eviction
that have occurred. As noted by the CESCR, the right to adequate housing has been gravely
violated and the government has failed to design mechanisms for securing this right and the
practice of forced evictions without consultation, compensation or adequate resettlement.42
This can be seen by the failure of the government to adopt a law that prevents forced
evictions. An adoption of a minimum core standard of enforcement of this right would thus
be a solution as it would require the adoption of laws, policies towards addressing the issues
of forced evictions, security of tenure, legalization of informal settlements and slum
upgrading and to ensure consultation with those affected at the earliest stages of planning in
order to protect their right to participate in decision making.
A minimum core standard of enforcement would also ensure that the state is held accountable
in provision of the right to housing without judicial inconsistencies.43 In addition, at least a
minimum core obligation would be for the state to refrain from violating the right to housing
or preventing private individuals from doing the same and this can be through legislation and
policies preventing arbitrary evictions, grabbing of community land, recognition of informal
settlements etc.

41

Malcom Langford, Domestic adjudication and economic, social and cultural rights: a socio-legal review sur.
Revista internacional de DireitosHumanosvol.6 Sao Paulo Dec.2009 pg. 92
42
Supra note 3 para 48
43
Some scholars such as Khoza have accepted that by using the minimum core standard. The government is
held more responsible when it is held liable to provide at least the minimum in the realisation of Social
economic rights. In Sabonile Khoza (eds.) Socioeconomic rights in South Africa ( 2nd ed. 2007) pg 9

12

1.8 Chapter Breakdown

Chapter two of this research will be on the evolution of the right to housing. This will cover
how the right to housing developed internationally. In addition, this chapter will cover the
relationship of the right to housing with other rights as mode of expressing the importance of
the right to housing. As noted by the CESCR, the violation of the right to housing results in
the violation of other rights such as the right to education. This chapter will also be on the
constitutionalization of the right to housing. That is, how the right to housing has found its
way into the Constitution of Kenya.
In this chapter, the legal framework on the right to housing will also be appraised and the
policies that have been developed by the state. This chapter will finally cover the judicial
enforcement of this right and the standard applied as will be revealed on a case to case basis
with regard to the cases which will be selected and the remedies provided.
There will be a conclusion.
Chapter three will cover on the challenges and the way forward on the standard of
enforcement of the right to housing in Kenya. It will be based on criticising the inadequacies
of the law on the right to housing and the effectiveness of the policies developed by the state.
This chapter will also be based on a discussion of the problems related to the reasonableness
standard.
This chapter will finally provide a way forward on the standard that should be applied. There
will be a conclusion to that effect.
Chapter four will be on carrying out a comparative study on select countries and deriving
lessons thereon.

13

Chapter five will be a conclusion and recommendations on the standard of enforcement on

the right to housing that can be applied in Kenya, the necessary amendments on the law
amongst others. Finally there will be a bibliography on all the materials that have been used
in this research.

14

CHAPTER TWO
2.0 THE RIGHT TO HOUSING UNDER THE KENYAN CONSTITUTION
2.1 Introduction
Housing is defined by the Macmillan dictionary as a place that people live in; also referred to
as a dwelling.

44

The definition by the Blacks law dictionary is verbatim.45 Additionally, a

dwelling is defined by the Housing Act as a building the whole or part of which is intended to
provide residential accommodation. Thus, the right to housing can be defined as the provision
of houses or non-interference with housing as a legal entitlement. As per the constitution of
Kenya, the right to housing is bifurcate, it entails adequacy which is defined by the UN to
consist of legal security of tenure, habitability, affordability, availability of materials,
services, facilities and infrastructure, and taking into account cultural adequacy of the
inhabitants. Accessibility concerns taking into account the needs of disadvantaged and
marginalised groups such as such as the poor, people facing discrimination; persons with
disabilities, and victims of natural disasters.
The state is obligated to fulfil the right to housing. This is by taking legislative, policy and
other measures which include the setting of standards to achieve the progressive realisation of
this right as guaranteed under article 43.46
Progressive realisation tends to suggest that the right cannot be achieved immediately. It
means that the state must take steps to achieve the goal of the Constitution by
effectively meeting the basic needs of all in the society. Accessibility should be progressively
alleviated: legal, administrative, operational and financial hurdles should be examined

44

Macmillan English Dictionary (2nd ed. 2007) pg. 736

Blacks law dictionary (9th ed. 2009) pg. 807
46
Supra note 26, article 43(1) (b). The exact provision has been modified to accommodate the right to housing
since it is the subject of this research i.e. as read with article 21(2)
45

15

and, where possible, lowered over time. The right must be made more accessible not
only to a larger number of people but also to a wider range of people as time progresses.47
Progressive realisation tends to favour the poor and the disadvantaged over the well off in
the society. This is confirmed by the provision that the state shall give priority to ensure the
widest possible enjoyment of the right or the fundamental freedom having regard to
prevailing circumstances, including the vulnerability of particular groups or individuals and a
court may not interfere with the states decision on the basis that it would have reached a
different conclusion in the allocation of the available resources.48 This is bolstered by the use
of reasonableness test by the courts in which in some circumstances argue: that both the
content of the obligation in relation to the rate at which it is achieved as well as the
reasonableness of the measures employed to achieve the result are governed by the
availability of resources.49
Further discussions on the standards will be done later.
2.1.1 Why the right to housing?
The right to housing has been stressed on so much by the Committee on Economic Social and
Cultural Rights (CESCR). Adequate housing has been discussed in many international and
specialized forums and has been recognized as an important basic human right. Yet, the
existence of the right to adequate housing and its elements are still unknown to many.50 The
importance of these rights cannot be underestimated as the committee has identified the right
to housing as the most violated right under the covenant.51 The committee further continues
47

Government of South Africa v Grootboom and others, Constitutional Court of South Africa, Case CCT 11/00,
4th Oct 2000, para 45
48
Supra note 46 article 20 (5) (b) (c)
49
Supra note 47 para 46. The court noted that the availability of resources is an important factor in determining
what is reasonable.
50
Adequate Housing as a component of the Right to an adequate standard of living 63rd session, UN A/63/275
(2008) (Note by the Secretary General) para. 23
51
M.C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A

16

to note areas in which the judiciary should scrutinise with regards to enforcement of the right
to housing under the covenant. This include: class actions suits in cases of increased
homelessness, legal appeals on evictions aimed to prevent them, legal actions seeking
compensation in case of eviction, complains against landlords and allegations of
discrimination in housing.52
Current rates of population growth and urban-rural migration, particularly in developing
countries, have serious impacts on living conditions in human settlements. By the beginning
of the third millennium, it is estimated that there are 1.1 billion people living in inadequate
housing conditions in urban areas alone. In many cities of developing countries, more than
half of the population live in informal settlements, without security of tenure and in
conditions that can be described as life and health threatening. It is worthwhile that the
violation of the right to housing has a negative effect on other SERs.53 In addition, poverty
and violation of housing rights is exacerbated by rural urban migration that has caused a
strain in the resources that are already scarce leading to informal settlements. As a result,
most of the citizens living in such settlements are subject to potential arbitral evictions.
Inequality and poverty in Kenya is prevalent. The Kenyan society has been
reported to consist of 56% of its population living below the poverty line. That is,
living below two dollars per day. The countrys richest 10% households control
42% of the income while the poorest 10% control only 0.76% of the income.54
This clearly shows that Kenya has a challenge in the realisation of amongst other
human rights, the right to housing. This is buttressed by the notification by some
civil society groups stating that poverty engenders inequality, discrimination and

Perspective on its Development (Thesis submitted for the degree of Doctor of Philosophy, University of
Nottingham), Nottingham, September 1992, pgs. 360-383
52
General Comment No. 4 on the Right to Adequate Housing, paragraph 17.
53
UN HABITAT, Contributions to the Full and Progressive Realization of the Human Right to Adequate
Housing (2002-2004) available at http://ww2.unhabitat.org/programmes/housing as at 20th March 2015
54
John Githii, The case for justiciability of socio-economic rights in Kenya: Drawing from the experience in
South Africa, India and the United states (2008) available at http://www.etd.ceu.hu/2009/githii_john.pdf as at
24th March 2015 pg.38

17

exclusion, violating individual rights and freedoms. It attacks the very foundations
of human rights: the right to dignity and autonomy of the person.55
The violation of the right to housing in Kenya has in addition been noticed by the CESCR as
namely: Practices of forced evictions without consultation, compensation or adequate
resettlement which appear to be widespread in Kenya, particularly in Nairobi (Concluding
Observations on Kenya, 1993).56
With different challenges in regard to housing, the necessary resolution with regard to
achieving the right to housing ought to be examined. This research will mainly be on the
standard of enforcement.
2.1.2 The evolution of social economic rights and the right to housing internationally
The origin of socioeconomic rights can be traced to the French revolution in 1789. The
French revolution was agitated by the socio-economic exclusions and inequalities. The
French revolution was mainly triggered by the shortage of bread and limited access to land.
As a result of the revolution, the French declaration of the rights of man and citizens was
adopted on 26th August 1789 which strongly dealt with the issue of social inequality. The
declaration guaranteed equality of all men and women in all circumstances, including social
equality. It also, in effect, abolished feudalism, thereby opening up access to resources. The
French revolution was followed by the Russian Revolution of 1917.57
The Russian revolution was mainly triggered by the issue of distribution of land. Few
enjoyed the access to land and thus this ended up depriving the majority livelihood. Another

55

Supra note 54
Conclusions and recommendations of the Committee on Economic, Social and Cultural Rights, Kenya, U.N.
Doc. E/C.12/1993/6 (1993), para. 16
57
Christopher Mbazira, Enforcing the economic, social and cultural rights in the South African Constitution as
justiciable individual rights: the role of judicial remedies available at http//:www.ucl etd-gen8srvNme4-5739
1254751338.pdf as at 17th March 2015 pg.41
56

18

issue was the guarantee of workers rights who were previously exploited. Issues of poor
wages, poor conditions of work and exploitation of labour called for prompt response.58
The Russian revolution coincided with the formation of the ILO in 1919. The ILO was
formed in order to abolish the injustices, hardships and privation of labourers and to
guarantee fair and humane conditions of labour.59 By this time, the momentum for the
recognition of socio-economic deprivation as a human rights problem was gaining force.60
Later in 1945, in San Francisco, 50 nations adopted the United Nations charter. A document
that sets forth the United Nations goals, functions and responsibilities; article 1 of the charter
states that, one of the aims of the UN is to achieve international cooperation in promoting and
encouraging respect for human rights and for fundamental freedoms without distinction as to
race, sex, language or religion. For the protections to be effective, some rights had to be
defined first and then laws had to be drawn that would protect and promote those rights and
freedoms. As a result, the Commission on Human Rights was established and charged with
creating an International Bill of Human Rights.61In 1948, the Universal Declaration of
Human Rights (UDHR) was adopted.62 The UDHR does not make a distinction between civil
and political rights and socio-economic rights. The socio-economic rights the UDHR
proclaims include: the right to work and its related rights, the right to a standard of
living adequate for health and wellbeing, the right to education, the right to participate in
ones culture, and protection of interests resulting from scientific, literary or artistic

58

Supra note 57 pg.42

Steiner H and Alston P, International Human Rights in Context: Law Politics, morals (2000) pg.242
60
For example via the observation by the then president of the United States the need for America to adopt an
Economic Bill of rights on the realisation that true individual freedom cannot exist without economic security
and independence
61
Human Rights fundamentals available at http://www1.umn.edu/humanrts/edumat/ as at 10th march 2015
62
Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.
59

19

production.63However, the UDHR is not a treaty; it is a mere resolution of the assembly not
subject to ratification.
To have the full legal force, there was need for the adoption of Conventions or convenants so
as to set international norms and standards. However, during the drafting of the covenant on
human rights there arose disagreements due to the recommendation that economic social and
cultural rights be included in the draft covenant.64 It is because of these differences that the
ICCPR was adopted differently from the ICESCR.
The ICESCR came into force in 1966 and is among the worlds most ratified treaty
document. Kenya ratified it in 1976. The ICESCR has an explicit provision of SERs which
includes the right to housing.65
2.1.3 Constitutionalisation of the right to housing in Kenya
Prior to the promulgation of the current Constitution, the right to housing was not recognised
under the repealed Constitution. The right to life was the only right that the courts could rely
on as a means of enforcing SERs yet the Kenyan courts were always hesitant especially in
matters related to housing and evictions. This was seen in the case of Paul Mungai and 20
others v The Attorney General and 3 others66 where the court stated that the right to life
under the then S.71 was limited to mere human existence and or limitation from physical
existence but not to other rights that go with it as could be deduced from the limitation to the
rights under S 71(2).67 The provision could not be interpreted to include other rights as had

63

Supra note 62 articles 23 25 26 and 27 respectively

Supra note 12
65
ICESCR article 11 (1)The States Parties to the present Covenant recognize the right of everyone to an adequate
standard of living for himself and his family, including adequate food, clothing and housing, and to the
continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the
realization
of this right, recognizing to this effect the essential importance of international co-operation based on free
consent
66
Supra note 14
67
Constitution of Kenya 1963 as amended to 2008 (repealed) under chapter V
64

20

been done by the Indian courts because the Constitution of India did not have specific
limitation like the Kenyan provision. This decision can be contrasted to that in Peter Waweru
v Republic.68 The right of life, according to the Court, was not just a matter of keeping body
and soul together because in this modern age that right could be threatened by many
things

including

the environment.

The court further stated that the right to a clean

environment is primary to all creatures including man; it is inherent from the act of creation
the

recent

restatement

in

the

statutes

and

the

Constitutions

of

the

world

notwithstanding. Courts were that inconsistent and attitudinal towards expanding the meaning
of the right to life.
Despite the ratification by Kenya of the ICESCR, the country had not taken steps in the
assurance of the right to housing. Despite having the Housing Act69 and the Building Societies
Act,70 the legislations did not recognise the right to housing too. The right to protection from
arbitrary evictions could be found in the Kenya Railways Corporation Act, Cap. 397, Section
16(3). In addition, the rights to adequate housing, education and health are contained in the
Childrens Act (s. 98). The Rent Restriction Act also provides some protection from evictions
to tenants whose monthly rent is under Ksh. 2 500.71 These legislations do not expressly
apply to informal settlements. In addition, with these provisions, without the Constitutional
force providing for the right, it could not be held as an express right as per the current days
dispensation.
This was despite economic disparities that existed in the Kenyan society between the few rich
and the poor majority at independence. Kenya is among the poor countries in the world and

68

Peter Waweru v Republic (2006) eKLR

Housing Act no 17 of 1953
70
Building societies Act Cap 489
71
Rent Restrictions Act cap 296 s 38
69

21

the most unequal societies.72The provision for the right to housing was and is necessary due
to increased evictions, non-recognition of informal settlements and lack of security of tenure
to those living in such settlements.
As a result, the CESCR complained about Kenyas inaction in the protection of SERs.
Consequently, Kenya made its first periodic report on these rights in 2007 and since it was as
a result of pressure from the committee, Kenya merely made impressions of good will
towards the achievement of SERs instead of showing the steps which it was taking towards
the achievement of the same.73
Since then, the first attempt to ensure that SERs were incorporated in the Constitution was
through the Bomas draft of 2004 which bore a lot of controversies and thus did not happen.
The Wako draft also contained the SERs under articles 60 to 66. However, this draft was
rejected in the 2005 referendum.
On 27 August 2010 Kenya adopted a transformative Constitution with the objective of
fighting poverty and inequality as well as improving the standards of living of all people in
Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this equalitarian
transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral
part of the Bill of Rights.74 The entrenched SERs require the State to put in place a
legislative, policy and programmatic framework to enhance the realisation of its
Constitutional obligations to respect, protect and fulfil these rights for all Kenyans. 75The

72

UNDP, Kenya Human Development Report 2001, addressing social and economic disparities for Human
Development, P.31
73
Steve Ouma and Juma Ambani, Taking These Rights Seriously: Civil Society Organizations Parallel Report
to the Initial State Report of the Republic of Kenya on the implementation of the International Covenant on
Economic Social and Cultural Rights (2008) available at
http://www2.ohchr.org/english/bodies/cescr/docs/ngos/K-HURINET Kenya CESCR41 report.pdf as at 5th march
2015 pg.8
74
NW Orago, Limitation of socio-economic rights in the 2010 Kenyan Constitution: a proposal for the adoption
of a proportionality approach in the judicial adjudication of socio-economic rights disputes available at
http://www.saflii.org/za/journals/PER/2013/71.html as at 20th march 2015 pg. 173
75
ibid

22

Constitution can be termed as a transformative Constitution. It is aimed at ensuring the

equalitarian redistribution of power and resources through the eradication of systemic
forms of domination and material disadvantage. The Constitution of Kenya provides for a
justiciable right to adequate and accessible housing under article 43 (1) (b).
2.1.4 The relationship between housing rights and other rights.
The right to housing is related to other rights such as the right to education, health, reasonable
standards of sanitation and access of clean water amongst others. The relationship and
interrelatedness of rights is stressed on by the Vienna Declaration.76 The violation of the right
to housing causes a direct effect to other rights for example, an arbitral eviction of families
will render them homeless hence exposing them to vagaries of nature which may result to
children getting sick, having poor sanitation and it will also interrupt with their school going
routine. The citizens evicted will also be deprived their livelihood especially for those who
were using their structures as a means of livelihood.
The violation of the right to housing through eviction was noted in the Satrose case to
constitute gross violations of a range of internationally recognised human rights, including
the human right to food, water, health, education, work, security of the person, security of the
home, freedom from cruel, inhuman and degrading treatment and freedom of movement.77
The right to housing is monumental in the achievement of other rights.

76

Vienna Declaration adopted by consensus at the world conference on human rights on 25th June 1993.
Satrose Ayuma and 11 0thers v Registered trustees of the Kenya Railways staff retirement benefits scheme
and 3 others petition 65 of 2010
77

23

2.2 The legal framework on the right to housing in Kenya

2.2.1 International legal instruments
The right to housing is recognised in various international legal instruments. These include
the ICESCR- the International Covenant on Economic Social and Cultural Rights. This
covenant was adopted and opened for signature, ratification and accession by the general
assembly resolution on 16thDecember 1966. The covenant entered into force on 3rdJanuary
1976. It recognises the right to housing under article 11 which states that the state parties to
the present covenant recognise the right of everyone to an adequate standard of living and
inter alia an adequate housing.
The ICESCR is the main convention that covers social and economic rights as noted earlier in
the evolution of SERs. The formulators of many Constitutions that have inculcated the SERs
have had the provisions of this convention in mind.78 Article 2(1) of the ICESCR is the pivot
of the convention. It requires the states to 'take steps ... to the maximum of available
resources, with a view to achieving progressively the full realization of the rights
recognised in the Convention by all appropriate means including particularly the adoption
of legislative measures'. This provision has been expounded by the UN Committee on
Economic, Social and Cultural Rights (CESCR) in its General comment No. 3 in which
the Committee has sought to give content to the phrases progressive realization and
within available

resources' as well as

reading a 'minimum core obligation' into the

provisions of the Covenant. 79

The development and enforcement of the contents of the ICESCR lagged behind because of
the lack of a reporting mechanism on the violation of SERs. An optional protocol was

78

S. Liebenberg , The Interpretation of Socio-Economic Rights, in: S. Woolman et al. (eds.), Constitutional Law
of South Africa, 2nd ed. 2004, Vol. II, pg..33-34
79
Supra note 9

24

developed as to allow individuals and groups to report the violations of SERs.80 There was a
further need to develop expositions as to the contents of the ICESCR. This led to the
development of the Maastricht guidelines on violations and the Limburg principles on
implementations.81 Both offer an authoritative interpretation of the ICESCR.82
There are also general comments by the committee which offer tools of evaluation when
considering a particular right and also assist states in the implementation and promotion of
the rights.83 This includes the committees General Comment no.4 on the right to adequate
housing.
The UDHR though not a legally binding document, recognises SERs as some of the rights
that nations should achieve as a general standard. In concluding its preamble, the declaration
notes: now, therefore the general assembly proclaims this universal declaration of human
rights as a common standard of achievement for all peoples and all nations.84 This means
that the declaration is a standard that all nations should aim to achieve under the United
Nations. Under article 25(1), it notes that everyone has, amongst other rights, the right to
housing.
The Convention on the Rights of the Child (CRC) under articles 27 obligates the state to take
appropriate measures in accordance to national conditions to assist parents and others
responsible on the child to implement this right and shall in case of need, provide material
assistance and support programmes with regard to nutrition, clothing and housing. This
convention raises eyebrows by the use of words such as in accordance to national
conditions, provide material assistance and support programmes.

80

Optional protocol to the ICESCR adopted 10 December 2012 GA Res A/RES/63/1 1 7

Supra note 79
82
ibid
83
ibid
84
Universal Declaration of Human Rights 1948, preamble
81

25

State parties under the Convention on the Elimination of all forms of Discrimination Against
Women (CEDAW) are obligated to take all appropriate measures to eliminate all forms of
discrimination against women and ensure that women in rural areas participate and benefit
from rural development. In particular, also ensure to such women the right to enjoy adequate
living conditions and in particular the right to housing.85
Other international legal instruments that recognise the right to housing include the
International Convention on Elimination of Racial Discrimination (CERD) under (Art.5 (e)
(iii).86 The Refugee Convention provides under article 21 that state parties are to accord
refugees as favourably as possible and in no less favourable way as that accorded to aliens in
the same circumstances in regard to housing.87
2.2.2 Regional legal instruments
The major instrument is the African charter.88 This is the most important document in the
protection of SERs in Africa. Shockingly, the charter does not recognise amongst the SERs
the right to housing and the right to food which has been blamed by some scholars on bad
faith from African dictatorial leaders who were scared to be deprived off power in their
unequal distribution of resources.89 The charter does not lay a distinction between these rights
and civil political rights due to the recognition that both sets of rights are indivisible,
interdependent and interrelated. Under article 30, the charter establishes the Commission
whose duty is the broad mandate of promoting rights under the Charter. The commission has
also the power to receive and make findings on state and individual communications. The
85

Convention on the Elimination of all forms of Discrimination Against Women adopted in 1979 by the UN
article 14 (2) h
86
International Convention on Elimination of Racial Discrimination adopted by the UN on 21st December 1965
entered into force on 4th January 1969
87
Convention and protocol relating to the status of refugees adopted by the UN in 1951 article 21. Contains texts
of the 1951 protocol, the 1967 and resolution 2198 (xxi) adopted by the UN General Assembly.
88
The African Charter on Human and Peoples Rights adopted 27th June 1981 entered into force 21st October
1986
89
Supra note 79 pg. 47

26

Charter notably does not provide for progressive realisation showing that it anticipates
immediate realisation and obligates that state should take legislative and other measures to
give effect to SERs and other rights under article I.
On the right to housing however, the Commission stated in the SERAC case that the right is
implicitly recognised in the Charter. It located this right within article 14 on the right to
property, article 16 on the right to health and article 18(1) on the right to family life.
In applying general comment no. 4 of the CESCR, the Commission held that at a minimum,
the right to housing requires states to ensure that all persons 'possess a degree of security of
tenure which guarantees legal protection against forced eviction, harassment and other
threats'.90
This implicitly shows that African states are bound to recognise the right to housing under the
charter.
Other regional instruments that contain the right to housing include: the Africans Childrens
Charter under article 20 (2) (a) and the Protocol to the African Charter on Human and
Peoples Rights on the Rights of Women under article 16. Another instrument is the Kampala
Convention for the protection and assistance of internally displaced persons in Africa.91
2.2.3 The legal framework on housing under the constitution of Kenya 2010
The Constitution of Kenya 2010 provides for the right to housing. The inclusion of this right
amongst other SERs has led to the constitution being referred to as revolutionary and

90

Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60(ACHPR
2001) para. 60
91
Kampala convention for the protection and assistance of internally displaced persons in Africa article 9 (2) (h)

27

progressive. Article 43 of the constitution provides for the justiciable SERs and among them
is the right to housing.92
Articled 165 of the Constitution gives the High Court jurisdiction to determine whether a
right or freedom contained in the Bill of Rights has been violated, denied, infringed or
threatened. The Constitution further continues to recognise the pressure of resources and
under article 20(5) thus providing the principles that the court, tribunal or other authority
should be guided by if the state claims that it does not have enough resources to implement
the right. Under article 20 (3) (b) the courts are obligated to adopt the interpretation that most
favours the enforcement of a right or fundamental freedom in the interpretation of
fundamental rights and freedoms.
The constitution further provides that SERs are subject to progressive realisation and
specifically that the State shall take legislative, policy and other measures, including the
setting of standards, to achieve the progressive realisation of the rights guaranteed under
Article 43.93 Remedies as to violation of the said rights are guaranteed under the constitution
too.94
Besides the constitution, Kenya has legislations on housing. The first is the Urban and Cities
Act which provides under section 36 (1) that every city and municipality shall operate within
the framework of integrated development planning which shall-contribute to the protection
and promotion of the fundamental rights and freedoms contained in Chapter Four of the
Constitution and the progressive realization of the socio-economic rights.95 Of course this
includes the right to housing.

92

Supra note 26 article 43 (1) (b)

Supra note 92 article 21 (2)
94
Ibid article 23 (1)
95
Urban and cities Act no.13 of 2011 S.36(1)
93

28

Kenya has six other legislations dealing with housing. The first sets of laws include the
Building Societies Act, the Housing Act and the Sectional Properties Act.96 The three provide
for the legal basis for financing and ownership arrangement. The Building Societies Act
provides for the formation and registration of building societies. The Housing Act provides
for the public financing for home development as it establishes the National Housing
Corporation, a parastatal organisation charged with providing loans from public funds for
construction of private dwellings. The Sectional Properties Act provides for the division of
buildings into units to be owned by individuals in addition to providing a framework for use
and management of common properties.
The other set of rights in Rent Restriction Act and Landlord and Tenant Act both meant to
regulate relations between landlords and tenants. The Employees ordinance also has
provisions that require employer to subsidize their employees housing costs.
2.2.4 Policy framework as to the right to housing in Kenya
Vision 2030 this is a policy framework that was launched in 2008. It is the nations
development blue print that aims to transform Kenya into a newly industrialising middleincome country providing a high quality life to all its citizens by the year 2030.97 This vision
was adopted as a result of a successful implementation the Economic Recovery Strategy for
wealth and Employment Creation which had seen the countrys economy back on the path of
rapid growth since 2002.98
Under this vision, the provision of housing is provided under the social strategy.99 The
provision entails housing and urbanisation. It provides that by the year 2020, the nation
should be adequately and decently housed in a sustainable environment. By 2012, the
96

Building Societies Act Cap 489 ;Housing Act cap 117; Sectional Properties Act no.21 0f 1987
Kenya vision 2030 popular version pg.2
98
ibid
99
Ibid pg.19
97

29

strategy was to increase housing unit production from 35000 units annually to over 200000.
The blueprint further notes the need for an initiative for a high urban planning laying a
strategy to be undertaken beginning with provision of adequate housing for those living in the
slums. The blueprint further continues to lay the projects for housing and urbanisation which
include: metropolitan investment plus initiative which requires the preparation of
metropolitan initiative for 11 regions, housing development initiative that calls for increase in
annual product of adequate housing with an emphasis on equity in access, beginning with low
income housing, mortgage financing initiative that establishes a secondary mortgage finance
corporation as a national housing fund while also introducing housing and infrastructural
bonds and finally the enactment of the Housing Bill 2006 to consolidate all housing-related
legislation into one law.
Sessional paper no.3 of 2004 The expansion of access to adequate housing for Kenyans has
featured in all key national policy initiatives, starting with the 1966 Sessional Paper No. 5 on
Housing. Subsequently, policy objectives relating to the access to adequate housing have
been elaborated in various five-year National Development Plans and Poverty Reduction
Strategy Papers (PRSPs). The latest addition to the housing policy framework is Sessional
Paper No. 3 on National Housing Policy of 2004.100
The Sessional paper also aims at development of a housing policy to address Kenyas
growing housing needs. The goal is to provide shelter to Kenyans at an affordable cost. The
key objective is to provide the progressive realisation of the right to housing by enhancing
ownership of houses via expansion of access to housing policy and to streamline the legal and
institutional framework to promote housing development. This policy is further aimed at
promoting the security of tenure to all land groups and especially to low income earners. It
further continues to note that this will not be possible without the active participation of
100

Supra note 20 pg. 14

30

citizens and thus aims at promoting such inclusive participation. The policy also aims at
promoting security of tenure and streamlining housing development, legal and institutional
framework.101
Sessional paper no.3 of 2009 on Kenyan national land policy.102 The National Land Policy is
based on views and expert opinions collected and collated through a structured all-inclusive
and consultatory process that brings together stakeholders drawn from the public, private and
civil society organizations.103
Under paragraph 209 on informal settlements, the policy notes that the major challenge of
informal settlements is the absence of security of tenure and planning. It continues to note
that many Kenyans live in slums and other squalid places and squatters are a challenge to
planning and development.
Paragraph 211(i) of the policy provides that the government should develop in consultation
with the affected community a slum upgrading and resettlement programme under specified
flexible tenure system. Under paragraph (j), it puts measures to prevent further development
of slums.
Draft National Policy on Human Rights, 2010 the draft national on human rights recognises
that there are serious disparities in the enjoyment of the right to housing in Kenya.104 One of
the aims of the policy is to compel the government to implement National housing policy,
upgrade slums and check on slum proliferation.

101

Supra note 20 pg. 15

Sessional paper no.3 of 2009 August 2009, fore word
103
ibid
104
Republic of Kenya, Draft National Policy on Human Rights, 2010, pg. 11 and 16-17
102

31

2.2.5 Judicial enforcement of the right to housing in Kenya.

Under the previous constitution, cases on SERs were few and far in between perhaps because
there were no provisions in the Bill of Rights or anywhere else in the Constitution
guaranteeing or protecting SERs.105 Claims of violation of SERs were brought under the Bill
of Rights provisions on the civil and political rights that were expressly protected such as the
right to life as seen in the Kemai case where the parties tried to rely on the right to life to
enforce their SER to housing.106 However, this research will not cover the enforcement of the
right to housing before the enactment of new constitution as it is based on evaluating the
standard(s) used by the Kenyan courts on adjudication of the right to housing after the
promulgation of the new constitution.
Susan Waithera Kariuki & 4 Others vs. Town Clerk, Nairobi City Council & 2 Others is
among the ante ceding cases on SERs in Kenya. In this case, the petitioners sought a
conservatory order, pending the hearing and determination of their petition, to restrain the
Nairobi City Council from evicting them and other scores of residents in informal settlements
within Kaptagat village and its environs. They argued that the respondents owed them a duty
of respect, protection and fulfilment of their socio-economic rights under the Constitution.
The High Court, relying on the Grootboom case,107 held that even though the city council
was under duty to properly plan the city, it should have done so respecting
constitutional rights of the people on the informal settlements. A conservatory order was
granted as pleaded, pending the determination and hearing of their petition. The main issue to
note is when the court stated that: The State has a positive obligation under Article 43(b) of

105

Supra note 67
Kemai & 9 Others v. Attorney General & 3 others cc no. 238 of 1999
107
Supra note 47
106

32

the Constitution to adopt and implement a reasonable policy, within its available resources,
which would ensure access to adequate housing over time.108
The court thus relied on reasonableness standard in the Grootboom case. It further
recommended the adoption of reasonable standard policy in Kenya in the enforcement of the
right to housing and other SERs.
Consumer Federation of Kenya (COFEK) v Attorney General & 4 Others. The case was filed
in relation to the failure of the relevant government agencies to take necessary fiscal,
regulatory, good governance and other necessary steps to control, stabilise or reduce high fuel
prices, leading to the high cost of subsistence goods and services, and thus violating the right
to be free from hunger as well as the right to adequate food as enshrined in article 43 of the
Constitution and in the UDHR.109 The case generally was on the effect of the respondents
actions towards SERs under article 43 including the right to housing as per the facts of the
case.
The Court affirmed its jurisdiction to adjudicate SERs as provided under the constitution.
However, the court threw out the case due to the failure of the petitioner to infer sufficient
evidence linking the actions or omissions of the Respondents and the violations of the
SERs.110
However, even though the court was left lamenting on the laxity and the lack of seriousness
with which public interest litigation of such fundamental importance was conducted. The
Court stated as follows:111

108

Susan Waithera Kariuki & 4 Others vs. Town Clerk, Nairobi City Council & 2 Others 2011 eKLR
Consumer Confederation of Kenya (COFEK) v Attorney General & 4 Others, High Court Petition No.88 of
2011
110
Ibid pg. 4 -5
111
ibid
109

33

It must be stated that in bringing matters such as this before the court, which have a critical
bearing on the rights, lives and livelihoods of citizens, it is not enough to make bare
statements with regard to the violation of rights without seriously addressing oneself to the
manner in which the violations have occurred and the reasonableness or otherwise of the
measures taken to avert or ameliorate their impact. At this nascent stage in the
implementation of the new Constitution, parties in the position of the Petitioner, should they
determine to take on cases which have a bearing on the public interest, must take them on
with all due seriousness.
The court overly referred to the standard of reasonableness as the key to justiciability or the
standard of judicial review in adjudication of SERs in Kenya. The court in fact stated that the
petitioners had failed to show how the actions of the respondents were unreasonable so that
they could be held responsible.
The Charo case concerned an application by about 270 households for an interim injunctive
order, restraining the Respondents from forcefully evicting them without the provision of
alternative land or accommodation.112 In addition, they sought a conservatory order to
maintain the status quo pending the hearing and determination of the main case. The
petitioners asked the court to take into account the transformative nature of the Constitution
as envisaged in article 20 (3) and their constitutional right to housing.
Further, the Petitioners, through a subsequent application, requested the Court to allow them
to construct makeshift shelters on the property, so as to protect themselves and their families
from the impending long rains which would have adverse consequences to their health and
well-being. The Respondents, on the other hand, argued that the land in question was private
land subject only to private law, and that the State was not responsible for the applicants lack
112

Charo wa Yaa v Jama Abdi Noor & 5 others, High Court of Kenya at Mombasa Misc. Civil Application No.
8 of 2011 pg. 3-4

34

of shelter and was thus under no obligation to provide alternative accommodation or shelter
to the applicants.
The court refused to apply the progressive and purposive interpretation of the Constitutional
provisions of the right to housing. It went on to state that the right said is aspirational. The
court found the right of property over the fundamental right to housing. The Charo Court
failed to take into account international and comparative law requirements for a lawful
eviction. The court further held the right to housing is subject to progressive realisation but
further failed to discuss the obligations of the state towards the applicants. It relied on
paragraph 41 of the Grootboom case which dealt with the ascertaining the reasonableness of
the government policy in hurriedly reaching a conclusion and failing to enforce the
applicants right to housing. This is a conservative and restrictive approach in the
enforcement of the right to housing.113
2.3 Conclusion.
The courts as demonstrated in the above cases have been consistent in applying the
reasonableness test as the test for justiciability of the right to housing in Kenya. The Charo
case however is exceptional since even though it relied on the reasonableness test in the
Grootboom case (paragraph 41), it took the restrictive and conservative approach in
determining whether the right to housing had been violated.
The next chapter will cover on the nature of the reasonableness test. It will further cover on
the challenges of using this test in the enforcement of the right to housing in Kenya while
providing an alternative test in the enforcement of the right to housing.

113

East African Human Rights Centre, A compendium on economic and social rights cases under the
Constitution of Kenya 2010 available at http://eachrights.or.ke/pdf/2014/A-Compendium-On-Economic-AndSocial-Rights-Cases-Under-The-Constitution-Of-Kenya-2010.pdf as at 27th march 2015 pg. 27

35

CHAPTER THREE
3.0 On the challenges and the way forward on the standard of enforcement of the right
to housing in Kenya.
3.1 Introduction.
The standard that has been applied in the enforcement of the right to housing in Kenya
generally is the standard of reasonableness of state policies. The standard of reasonableness
can be lauded for several of its advantages but can also be scorned upon due to its
disadvantages. It is worthwhile that the standard has been applied in Kenya despite the
Kenyan Constitution being different from the South African one. The South African
constitution is clear in its reference of the word reasonable. It states that the state shall take
reasonable and other measures in achieving the progressive realisation of the right to
housing.114 The Kenyan constitution on the other hand under article 21 (2) provides that the
State shall take legislative, policy and other measures, including the setting of standards, to
achieve the progressive realisation of the rights guaranteed under Article 43. The difference is
clear that it does not endorse reasonableness as the standard to be applied in Kenya. It is
manifest therefore that the reasonableness standard cannot be applied in Kenya.
This chapter is aimed at inter alia, articulating the reasonableness standard, the weakness of
the laws and policies discussed in chapter two of this research. It is also aimed at providing a
way forward as to the authors view on the standard that should be applied in Kenya.

114

South African Constitution 1996 S.26 (2); Joan Fitzpatrick and Ron C. Slye, Republic of South Africa v
Grootboom case no11/00. 2000(11) BCLR1169 and Minister of Health v Treatment Action Campaign case
no.CCT 8/02 Vol. 97, No. 3 (Jul., 2003), The American Journal of International Law pp. 669-680

36

3.1.1 The status of realisation of the right to housing in Kenya

The government may be working towards the realisation of the right to housing in Kenya via
legislations and policies as discussed earlier. However, despite having ensconced the right to
housing as a part of the larger right to human dignity, right to equality, social and economic
rights (SERs), the basic provisions, which form the spirit of the right to housing, are yet to be
enacted or implemented in Kenya.115 E.g. the legislations dealing with evictions and
community ownership of land which are among the legislations that form the minimum
protection in the realisation of the right to housing do not exist. The law on eviction and
resettlement for example is aimed at protecting citizens from arbitrary eviction while the law
on the community land is aimed at protecting community land and recognising tenure.116
Demand for affordable housing, particularly in urban areas, has continued to rise
without the requisite movement on the supply side. This has pushed prices up making the
houses unaffordable for the majority of Kenyans.117 While investors and the well-to-do are
putting up houses in every corner of the country, those who are economically challenged
and in this case, the slum dwellers, are constantly threatened with evictions for various
reasons. This can be seen by the increased court cases since the promulgation of the new
constitution and even before.118
Other evictions go unreported as there is no data of evictions that take place in Kenya and the
humaneness of such evictions depend on those carrying out the evictions. Forced evictions

115

Supra note 8
Collins Odote, The legal and policy framework regulating community land in Kenya An appraisal available
at http://www.fes-kenya.org/meida/publication as at 5th April 2015 Pg.32
117
Other factors such as the increase in the oil prices have contributed to the increase in the price of houses. This
was well demonstrated in the Consumer federation of Kenya (cofek) v Attorney general & 4 others [2012] eKLR
case. Para 1: In this case, the petitioners claimed that the respondents had failed to control and stabilise the oil
prices hence the increase in the prices of social economic goods.
118
Peter Mungai and 20 others v the attorney General and 3 others (2010) eKLR; Kemai and 9 others v The
Attorney General and 3 others HCC no. 238 of 1999 were case before the enactment of the new constitution.
Satrose Ayuma and 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefit Scheme and
2 others (2011) eKLR is the first case on SERs in Kenya and it was based on the right to housing;
116

37

in Kenya tend to be undertaken by the Provincial Administration, Local Authority

policemen and gangs hired by private developers, often acting under the cover of
darkness. Admittedly, it is possible to seek court injunctions to halt the evictions. However,
the residents being evicted in most circumstances have no financial capability of hiring
counsel to represent them. In Kenya, several organisations that offer pro bono services for
such people are few and seem to be overstretched. Even where such injunctions are issued,
instances of non-compliance by local authorities or private developers continue to be
documented.119 There have been different evictions in Kenya e.g. from forests, for instance,
the Mau Forest evictions,120 the evictions from the banks of the Nairobi, Ngong and Mathare
rivers, eviction from Sinais paradise B in Nairobis Makadara area, evictions from Upendo
slum, Mitumba village near Wilson airport amongst others.121
In terms of provision of housing for vulnerable people in the society, the Kenyan government
has overly failed. The Kenya National Housing policy does not recognise the need for
terminally sick people or even those suffering from incurable ailments such as HIV and AIDS
to be given prevalence in housing in Kenya as required by the UN. Instead, it provides
prevalence generally for the poor, women and the children.122 In addition, the government is
supposed to take steps in ensuring the realisation of the right to housing to these groups.
Contrarily, the Kenyan government has done little to less in this. This can be seen by the
ineffectiveness of the governmental projects such as the Kenyan Slum Upgrading programme
which has reportedly been corrupt in its allocation of upgraded houses.123 In addition, some
members of the executive have acknowledged that the governments effort in the provision of

119

Supra note 20 Pg18-19

Thomas Kipkorir Ronoh and Fred Simiyu Barasa, integrating indigenous knowledge in Adult Education
through the ODL strategies for sustainable conservation of Mau forest, Kenya : the Ogiek experience Huria:
Journal of the Open University of Tanzania vol. 13 no.2 of 2012 pg 384
121
Supra note 20 pg.19
122
Ibid pg. 21
123
ibid
120

38

adequate housing has been a drop in the ocean.124 The failure of this project or its
ineffectiveness thereon can be termed as a violation of the right to housing by the state owing
to the fact that majority of Kenyans living in urban centres live in informal settlements.125
The Housing Act that establishes the National Housing Corporation has been
ineffective.126This is because there has been a report by the Nairobi Central Business District
Association (NCBDA) in a statement dated 19th March 2012 that the Inspectorate of
State Corporations

should get to the bottom of claims that the National

Housing

Corporation (NHC) officials illegally allocate houses to themselves.127 Corruption has

dishearteningly ruined the benefits that Kenyans should be enjoying from such an institution.
In terms of internally displaced persons, the government has reportedly taken steps in the
resettlement of IDPS in Kenya especially after the 2008 post-election violence. However,
there was a report by the Special Rapporteur on the Human Rights of Displaced persons
during his mission in Kenya in 2012 that around 314000 IDPs were yet to benefit from a
durable solution.128 Up to date, the issue of IDPs is a menace in Kenya and the changes
experienced are meagre. The state also tends to equate the provision of money to provision of
settlements whereas the money provided thereon is inadequate.
In terms of accessing housing finance, the access of the financing for affordable housing is a
serious challenge in Kenya. Housing finance has been reported to be mainly accessible to
Kenyas middle-to-high income households.129 By 2012, the mortgage market had less than
14000 accounts and this is a symbol for the inadequacy in terms of access. Bank rates remain
124

Supra note 123 pg. 22

UN HABITAT, Contributions to the Full and Progressive Realization of the Human Right to Adequate
Housing (2002-2004) available at http://ww2.unhabitat.org/programmes/housing as at 20th March 2015
126
Housing Act no.17 of 1953 S.3
127
Hakijamii, The Kenya Housing Rights Update (2012) available at
http://www.hakijamii.com../hupdate0113.pdf as at 20th march 2015 pg. 2
128
Report of Special Rapporteur on the Human Rights of Displaced Persons: Mission to Kenya, 12 February
2012 A/HRC/19/54/Add.2, p.13
129
Hakijamii, assessment of the realisation of the right to housing in Kenya 2011-2012 available at
Http://www.hakijamii.org as at 10th march 2015 pg. 27-28
125

39

high which is buttressed by the fact that Kenya is a nation that overly relies on oil imports
thus making Kenya vulnerable to external factors hence causing inflation.130
In terms of adequacy of housing in rural areas, housing in these areas is still at retardation in
comparison to the urban set up. Though it can be said that rural areas have much space
needed for construction than in urban areas, the problem of financing is real in most of these
areas. The National Housing Corporation provides the rural housing development,
development loans at the relatively low rate of 13 per cent, the loan is considered limited
since it only covers 50 per cent of the estimated cost of a proposed dwelling.131 This is
obviously not enough to cover for the rural household as to ensure adequate housing as
guaranteed in the constitution owing to the fact that no other initiatives specifically targets the
rural areas.
3.2 The nature of state obligations: defining state obligations as per the Constitution in
regard to the right to housing.
The state is obligated to ensure the enjoyment of the right to housing under article 43 (1) (b).
The provision on the right to housing entails the meeting of positive and negative obligations.
When a State entrenches human rights in the Bill of Rights of its Constitution, it assumes a
continuum of negative and positive obligations for the realisation of those rights.132

130

Supra note 129

Ibid
132
Supra note 74 pg. 176; Social and Economic Rights Action Centre (SERAC) v Nigeria 2001 AHRLR 60
(ACHPR 2001) (SERAC case) para 44
131

40

3.2.1 Negative obligations of the state

This includes the duty to:133
Respect- this entails the obligation not to arbitrarily take away peoples SERs or make it
difficult for them to gain access. In housing, it entails the duty to refrain evicting scores of
people from say public land where they had initially been settling. As noted under the
previous chapter, courts in Kenya have readily dealt with this issue.
The next obligation entails the duty to protect the violation of the right to housing by private
individuals. The state is obligated to pass laws that prevent such people from violating other
peoples rights and enforce such laws.
3.2.2. Positive obligations of the state
Positive obligations entail the duty to promote in which the state should use the media to
inform people of their rights, educate people about policies and programmes that will help
them have access to socio-economic benefits, inform the people about their rights via the
media, where to go in case their rights are violated and encouraging the work of NGOs in
SERs. The other duty includes the duty to fulfil which the state is supposed is supposed to
take positive steps to fulfil these rights. An example is via provision of low cost housing to
those in desperate need.134
3.2.3. Reconciling Positive and Negative Obligations in the Right to Housing
In the application of tests to determine the violation of the right to housing, the test in
determining violation of both sets of obligations should be invariant. This will be essential in

133
134

Supra note 43 pg. 35-39

Supra note 2Para 44; R v Enfield LB [2002] EWHC 2282 Admin.

41

ensuring the development of a consistent jurisprudence in the enforcement of the right to

housing.
3.2.4 Limitations of the Right to Housing
The right to housing just as other rights is subject to limitation. Limitation of socio-economic
rights is two pronged: 135
1) External limitations.
2) Internal limitations
External limitations are limitations contained in article 24 of the constitution on limitation of
rights. A limitation can only be effected by the state in accordance to a legal instrument
containing the right. This is to ensure a culture of justification and accountability for use of
public power. The objects limiting rights must be legitimate, be prescribed by law, limitations
must not be disproportionate and must not exceed the aim envisioned by a particular
limitation provision. Limitations of rights are meant to operate to curtail the enjoyment of
rights only in instances where the exercise of rights would prejudice the rights and freedoms
of others or would be against public interest.
Rights can only be limited justifiably in an open and democratic society. Rights cannot be
limited so as to derogate the essential core content of the right. The state organ wishing to
limit a right must proof/justify such a limitation.136
However, though rights such as the right to housing can be limited, article 4 of the ICESCR
as interpreted by Limburg Principles provides that increased stress on the limitation of SERs
would make the rights thereon to be illusory.137 To avoid the distortion of the raison dtre of

135

Supra note 74 pg. 178 -181

General Comment 14, para 28
137
Limburg principles Para 56
136

42

the right to housing, it would be inappropriate to begin with an argument of limitation instead
of laying focus on enforcing the components of the right. In addition, article 24 is clear in
stating that the essential content of a right which is the minimum core averred by this
research cannot be limited. Limitation of rights is thus based on a balance of probabilities or
what Orago refers it as a proportionality principle.138
Internal limitations are limitations contained in the wording of SERs. These include the
provisions of article 21(2) of the constitution which require the state to take legislative, policy
and other measure to ensure progressive realisation of those rights. The ICESCR under article
2(1) requires that the state should apply maximum of available resources to ensure the
realisation of SERs. In Progressive realisation, the state is obliged under the constitution of
Kenya to take steps towards the gradual realisation of the right to housing.139 This concept is
based on the realisation that SERs are to be achieved over time based on the realities of the
world and the difficulties of ensuring full realisation of SERs. The Kenyan courts have not
given a definition of this expression.
The meaning can be borrowed from the international standards and the interpretations applied
in other jurisdictions. The Limburg principles require the state to move as fast as possible
towards the realisation of the rights meaning that the states cannot defer indefinitely measures
to ensure the full realisation.140 The state thus must initiate steps towards fulfilling its
obligations.
The CESCR suggests that progressive realisation does not mean divesting the guarantees of
all meaningful content based on the idea that the SERs cannot be achieved immediately.141

138

Supra note 74 pg.196

Supra note 26, article 21 (2)
140
Limburg principles para.21
141
Committee on Economic Social Rights general comment no.3
139

43

Any retrogressive measure by the state must be justified in regard to the right; if it not, it will
amount to violation of the right under the constitution.
Progressive realisation is a sword and a shield at the same time. The state is to take steps
towards the realization of its obligations but on the other hand the state can limit the same in
regard to the availability of resources.142
The duty to take steps toward the realisation of SERs- this duty is engraved under article
21(2). It requires the state to take legislative, policy and other measures including the setting
of standards to achieve the progressive realisation of the rights guaranteed under article 43.
Article 42 of the International Covenant on Economic Social and Cultural Rights (ICESCR)
require each state party to undertake steps by all appropriate means including the adoption of
legislative measures to ensure realisation of guarantee in the Covenant. The CESCR in
addition under general comment 3 provides that states are to undertake steps towards actual
realisation of SERs within a short period of time on entry into the Covenant. The steps must
be concrete, deliberate and directed towards meeting the obligations under ICESCR.143
The use of legislative and policy measures means is not enough. There is a need to apply
other measures that the state can legitimately engage in e.g. educational and administrative
actions.
Taking steps in the Grootboom case was held to be based on the reasonableness by the South
African Constitutional court.144 The court added that a reasonable plan by the state was to be
the one that clearly allocated responsibility to various levels of government and ensured the
availability of appropriate human and financial resources. It is also a plan that is

142

Supra note 9 pg.63

Ibid pg.62
144
Government of South Africa v Grootboom and others, Constitutional Court of South Africa, Case CCT 11/00,
4th Oct 2000, para. 41
143

44

comprehensive, well-coordinated, flexible and balanced to address the need of those who are
desperate.145
On the availability of resources: It is accepted that the achievement of the right to housing
and other SERs by the state is determined by the availability of resources. Resource
constraints is one of the grounds on which the state may delay in provision of SERs provided
under the Constitution. However, for a state to attribute its failings to inadequacy of
resources, it must show that it has expended all effort towards meeting the minimum
core obligations and even where resources are not adequate, the state's obligation to realise
SERs subsists. This is per the international standard provided by the CESCR.146
Other treaty bodies have considered the issue of availability of resources in realisation of
rights and have come up with different interpretations.147 For example the Committee on the
Rights of the Child (hereafter CRC) has stated that public policies should be for the purpose
of fulfilment of rights. According to the CRC, transparency, availability of information and
participation are an essential part in ensuring that the rights of the children are prioritised in
resource allocation.148

145

Supra note 144 para 38 39 42

Supra note 133 para. 10 and 11
147
Supra note 134 pg. 67
148
ibid
146

45

3.2.5 Challenges on the Kenyan legislation and housing policies.

The Housing Act does not recognise the right to adequate and accessible housing to every
Kenyan.149 This was well captured under the Housing Bill of 2009 which up to date has not
materialised in terms of its enactment.150 The current Act also does not recognise devolution.
There is a necessity to devolve the National Housing Policy to the county level as provided
under schedule four of the Constitution. This is because, even though the aforesaid schedule
provides for the implementation of housing to the county governments, the status of National
Housing Corporation remains in doubt. The reason being that the new levels of government
have their roles defined.151 There is also a great relationship between land allocation and
housing development. Land issues remain largely under the control of the National
government and thus it would be interesting to see how both levels of government would
coordinate in ensuring the realisation of the right to adequate housing.152
On evictions, there are no laws in Kenya governing evictions. In addition the laws do not
recognise land tenure by communities on what can be termed as community land. There is a
necessity to have laws governing community land and evictions in Kenya. The law governing
evictions has been called upon by many courts in different right to housing cases such as the
Satrose Ayuma case,153 the Mitubell case154 and the Susan Waithera case.155
On informal settlements, the government of Kenya has not recognised informal settlements
despite the Nairobi Informal Settlement Coordination Committee recommendation that it is

149

Housing Act no. 17 of 1953- The act needs to be amended to capture constitutional provisions on the right to
housing generally.
150
For example the bill under S.2 recognised the right to adequate housing. Among the objectives of the said
legislation was to facilitate progressive realisation of the right to adequate housing which is now a constitutional
guarantee.
151
The National Housing Corporation is formed under S.3 of the Housing Act
152
Eric Kanyi, Who is in charge of the Housing sector (2013) available at http://internationalbudget.org/Kenya
as at 10th March 2015 pgs. 1-8
153
Supra note 77 Para.109
154
Mitubell Welfare society v the A.G and 2 others (2011) eKLR Pg.15
155
Susan Waithera Kariuki & 4 others v Town Clerk Nairobi City Council & 3 others [2013] eKLR para. 64

46

imperative that any actions relating to informal settlements in Nairobi be preceded by a clear
expression of good intent on the part of the authority and should include the formal
recognition of all existing settlements.156 Instead, the government has not heeded on all
processes of evictions of such settlements in the capital city and beyond. For example on
evictions in Mau forest, the government had a merit on such evictions relying on the fact that
it was protecting the water catchment areas.157 However, the government did not act in
accordance to the internationally recognised standards and procedures in evicting the
informal settlers in the forest. These include: consulting with the affected communities and
providing an alternative settlement for them.158
The government has not in addition set up measures to improve governance in settlements.
The provincial administration still enjoys significant formal and de facto powers in
settlements without clear mechanism of accountability to the local community and even
parliament. It reports directly to the president.159
Slum upgrading projects can be lauded as they are meant to improve the lifestyle of Kenyans
in the housing sector and thus achieving the constitutional right of adequate and accessible
housing. The slum upgrading projects however remain significantly low and this is due to the
failure of the government to engage the community in the representation during the process.
Corruption has been a malaise to the achievement of the right to housing under this project as
some houses in places such as Kibera have been reportedly allocated to people who were not
the initial owners of the structures or the tenants thereon.160

156
Centre for Human Rights and Evictions, Listening to the poor? Housing Rights in Nairobi (2006) COHRE
mission report available at http://www.sheltercentre.org/ as at 30th March 2015 pg.8
157
Ibid
158
ibid
159
ibid pg.5
160
IRIN, AFRICA: Slum dweller representatives denounce forced evictions (2012 )available at
http://irinews.org/report/9513/ as at 10th March 2015

47

The National Housing Policy does not explicitly recognise persons with terminal diseases,
mentally ill, victims of natural disasters or those suffering from HIV and AIDS as deserving
priority in housing. The National Housing Policy tends to have a very narrow definition on
what vulnerable groups are.161
Due to devolution, it is not clear as per the current policies and legislations as to which levels
of government are supposed to cater for the county civil servant housing.162 These roles
should be clearly stipulated.
Under the Rent Restrictions Act, Rent tribunals are established under S.4 of the Act which
provides that the minister shall by notice in the gazette establish such tribunals having
jurisdictions in areas that he may deem fit.163 Such tribunals are however funded by the
Kenyan budget. In the 2012-2013 budget, only 20 million of the 47 million provided in the
budget was allocated to funding these tribunals in the different regions in Kenya. This is a
sign of under-funding of tribunals that are supposed to deal with rent matters that are directly
related to the enjoyment of the right to housing in Kenya.164
3.3 Assessing the Reasonableness test applied in Kenyan courts in the realisation of the
right to housing.
The reasonableness test has been used to a very high degree in the South African context in
the enforcement of both positive and negative obligations of the state in the realisation of
different social and economic rights. Thus, under this section, the reasonableness test will be
assessed from its origin and in a nutshell some South African cases will be mentioned in
accordance to their relevance in this context. It is worth noting that in Kenya the right to

161

Supra note 143 pg.44

Supra note 148
163
Rent Restriction Act no.35 of 1959 S.4 (1)
164
Supra note 143
162

48

housing has not been litigated based on the positive obligations of the state as has been the
case elsewhere.165
3.3.1 The origin of the reasonableness test
The reasonableness standard came from Etienne Mureinik at that time a professor of law at
the University of Witwatersrand in Johannesburg. He made a case for the inclusion of rights
in the South African Constitution via an article that he wrote in the South African Journal of
Human Rights.166 He argued that judicial review of these rights is similar to traditional
review of civil and political rights: standards against which to measure the justification of
laws and decisions. In Mureiniks view, the government has a duty to make an honest and
reasonable effort to realize social and economic rights.167 He suggested judicial review for the
sincerity and rationality of governmental action. In case of doubt the courts should defer to
any decision by the government for which a plausible justification could be offered. As a
result, it is only dishonest or unjustifiable actions that could be set aside.168
The reasonableness review also seems to have originated from administrative law concepts
and contains some procedural elements derived from this field of law. This standard gives a
substantive rights based content via the emphasis on the value of human dignity as the
guiding principle and the requirement to provide a short term relief to the desperate and the
needy.

165

For example in Canada (Tanudjadja v Canada 2014 ONCA 852) and South Africa (Grootboom case)
Fons Coomans, Reviewing Implementation of social and economic rights: An assessments of the
Reasonableness Test as Development by the South African Constitutional Court (2005) 65 Heidelberg
journal of international law 167
167
Ibid pg. 181
168
ibid
166

49

3.3.2 The nature of the reasonableness test: the pros and cons
The reasonableness test seems to fit in well with the system of separation of powers. It
requires the courts to defer to other branches of the government if a matter of policy options,
choices and decisions about how much to spend in the realisation of rights comes up.169
It should also be noted that this standard does not grant individual relief, that is, an immediate
access to housing. This standard seems to be an internal limitation in the realisation of the
right to housing and other SERs. This was seen in the TAC case in which the court rejected
the minimum core obligation by stating that SERs in the Constitution do not guarantee
everyone to demand that the minimum core be provided to them.170 There is a difference
between enforcement and the state meeting its obligations on the right to housing by actual
provision than merely developing policies or being seen developing such policies as was the
argument in Grootboom.171This argument is flawed in the sense that if it is just a requirement
for development of policies towards the realisation of the right to housing, then it will not
help the petitioner.
The reasonableness test is governed by the availability of resources and the state cannot do
more than what it considers to have. The use seems to sway the meaning of rights and
obligations and shifts from the ICESCRs wording of all appropriate means.172
Though it may be argued that the reasonableness test takes into account the domestic
situation or the local context and requires the protection of the needs of the people who are
most in need, the test is vague.173 This is in the sense that it depends on the context. It is not

169

Supra note 168

Minister of Health and Others v Treatment Action Campaign and Others2002 (5) SA 721 (CC). Para. 34
171
Supra note 145 para 40 and 42
172
Supra note 167
173
ibid
170

50

possible to identify the programmes that governmental authorities are supposed to set up and
implement in order to satisfy the needs of separate vulnerable groups. Of course different
interpretations will ensue on what is reasonable. In addition, reasonable can be argued as
whatever state policy is desirable to the court.174 For example in a Kenyan case though not
related to housing but instead the right to education, the court in John Kabui Mwai averred
that one of the obstacles to the realisation of SERs is limited financial resources on the part
of the Government. In the courts opinion (perhaps misguided), the available resources are
not adequate to facilitate the immediate provision of socio-economic goods and services to
everyone on demand as individual rights.175
The court ignorantly went on to say that the focus should be past an individual. In addition, it
went on to absolve itself the constitutional mandate to enforce rights by claiming that a public
body should be given appropriate leeway in determining the best way of meeting its
constitutional obligations.176 A similar retrogressive jurisprudence relying on the
reasonableness test was seen in the Charo Wa Yamaa case relating to the right to housing.
As its strength the reasonableness test provides a strong impetus for the government to fully
justify its policy in order to be held reasonable.

177

This element of the test performs the role

of a touch stone and a checklist for the governmental actions and inactions. This test has also
been said to enhance the justiciability of rights more tangible as it does away with the
separation of power issues. However, the court in applying this test may find itself failing to
abdicate its responsibility as the ultimate protector of rights and the guardian of the
Constitution, on the basis of respect and deference where the political institutions are
adamant, incompetent or unfocussed to their responsibility. Thus this test is likely to bear

174

Supra note 173

John Kabui Mwai & 3 others v Kenya National Examination Council & 2 others [2011] eKLR pg.6
176
ibid
177
ibid
175

51

a situation where access to housing rights and other SERs is restricted by means of financial
and policy considerations.
The reasonableness test in addition does not set a priority.178 It has been argued that the
standard of reasonableness review is difficult to define and apply in practice, for example
with respect to the deplorable situation in which people live and the urgency of the relief
required. Although the Constitutional Court has held that a reasonable program must cater for
the needs of those people in desperate situations, it has not ruled that such needs must be met
on a priority basis, that is, take precedence in time over the (housing) needs of other segments
of the society. On the other hand, the UN Committee has emphasized that a state must use all
resources at its disposal in order to satisfy, as a matter of priority, its minimum core
obligations.179
The reasonableness test is also faced with challenges in assessing the availability of resources
in the determination of achievability of the right to housing.180 The courts in applying this test
have not confirmed as seen in the Grootboom case whether the test apply to all policies and
processes that determine the overall availability of resources, allocation of resources as well
as the level of resources allocated to various governmental spheres. In addition, would the
court have the capability of determining that the resources are available or not? Do the SERs
provisions in the constitution provide for reallocation of resources from one sector to the
other?181 As a result, the content of rights as seen from the Grootboom and the Soobramoney
South African cases, the courts applying the reasonableness test indirectly stated that the
availability of resources determines the rate at which a right can be achieved in practice.182 It

178

Supra note 167 pg.190

General Comment no. 3, Para. 10.
180
Supra note 167
181
Supra note 167 pg. 190-191
182
Supra note 145 Para 46; Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 para 11
179

52

is necessary for the courts to realise the content of obligation of rights are purely independent
of available resources and cannot be subject to reasonableness.
In application of reasonableness test, it is incumbent for the courts to realise that the state
cannot use the limitation of resources as a tool to limit peoples rights. In the Charo wa
Yamaa case, the court used a limitation language in failing to give an injunction to prevent
the eviction of the applicants arguing that the right to housing is aspirational and subject to
progressive realisation but avoided to discuss the state obligations that arose thereon.183
Shockingly, the court relied on paragraph 41 of the Grootboom case which dealt with the
analysis required to ascertain the reasonableness of a government plan in the realisation of the
right to housing.184 As a result the court failed to enforce the right to housing of the applicants
ruling in favour of the respondents right to property which was an imbalanced evaluation.
By using the reasonableness test, it is clear that the courts would struggle to differentiate
between limitation of resources and failure by the government to provide or use maximum
available resources in the progressive realisation of the SERs.
The reasonableness test also has been blamed by the court failing in most cases to recognise
direct individual rights as seen in the Charo case above. As a result, this discourages social
rights claiming by individuals.185
In a nutshell, the reasonableness review has been viewed as a proxy that is likely to be used
by the courts in endorsing the states own views about the justification of its policies.186 In
conclusion therefore, however a state policy may be said to be reasonable or not, citizens

183

Charo wa Yaa v Jama Abdi Noor & 4 others High Court of Kenya at Mombasa Miscellaneous Civil
Application No. 8 of 2011 (unreported) Pgs.17-18
184
ibid
185
Sandra Liebenberg, Needs, rights and transformative adjudication of social rights(2005) pgs. 23-33
186
ibid

53

need to be guaranteed a minimum that they enjoy in terms of the right to housing and other
SERs. This has even been acknowledged by the South African constitutional court.187
It ensures that the satisfaction of, at the very least, minimum essential levels of each of the
rights is incumbent upon every state party as endorsed by the CESCR.
3.4

On the way forward on the standard of enforcement of the right to housing: an

alternative in the test applied in the enforcement of the right to housing in Kenya.
The emerging point from the above concerns is that there is a need to adopt an
alternative approach with regard to the test applied in the enforcement of the right to
housing.
3.4.1 The minimum core standard.
This standard was developed by the Committee on Economic and Social Rights (CESCR).
Under paragraph 10 of the General comment 3,188 the committee observes that the provision
for a minimum core is to ensure that the state satisfies at least the minimum essential levels of
each of the rights. Such a minimum obligation should be incumbent upon each state. In
addition, it states that failure to establish a minimum core obligation would be to largely
deprive the covenant and the rights thereon their raison dtre. If the state fails to provide the
minimum core obligations, then it is to be held liable. If the state relies on the unavailability
of resources, it must demonstrate that it has used all resources that are available to it in an
effort to satisfy minimum obligations.189

187
Supra note 145 para.33 even though the court applied the reasonableness test in adjudicating this case, it
recognised that a minimum core approach could be used in some circumstances in the enforcement of other
SERs.
188
CESCR General Comment No. 3: The Nature of States Parties Obligations (Art. 2, Para. 1, of the Covenant)
Adopted at the Fifth Session of the Committee on Economic, Social and Cultural Rights, on 14 December 1990
(Contained in Document E/1991/23) para. 10
189
ibid

54

As observed by some scholars such as Katherine Young, this standard of enforcement is very
effective in the justiciability of positive obligations by the state. This is effective especially in
the reversing of the onus of proof. That is, when the claimants have proved that the minimum
core has not been met, it is for the state to prove that it has taken the necessary steps to ensure
the realisation of the right to housing and other rights.190 She also asseverates that this
standard was argued in South Africa that without its recognition, SERs would amount to
empty rights and false promises.191
Unlike the reasonableness standard, the minimum core makes it easier to see where the
policies of the state have fallen beneath. Courts have been admonished for applying the
reasonableness standard that sets the bar lower.192
As was remarked in Grootboom,193 this standard is not applicable in South Africa. This is
because an interpretation of article 11(1) of the ICESCR defers greatly with that of S.26 the
South African constitution. Thus the court in this case was very categorical in realising this
and thus stating the inapplicability of the standard in that jurisdiction. The Kenyan courts
need realise this difference and thus apply the minimum core standard.
This standard also provides for immediate relief for individuals unlike the reasonableness test
that basis its enforcement of rights on the availability of resources and peoples needs. In
addition, the minimum core obligation on the state targets or can be translated to the national,
regional and local levels in to carefully targeted policies and programs that duly implement
obligation. In addition, this test does not require the courts to define in abstract, the precise
basket of goods and services that must be provided to people as some scholars tend to argue.

190

Kathrine G Young, The minimum core of Economic Social Rights: A concept in search of empty rights and
false promises (2008) 33 Yale journal of international Law pgs. 158-159
191
ibid
192
Elizabeth Waikeri, Grootbooms legacy: securing the right to access to adequate housing in South Africa?
Available at http://www.chrgj.org as at 7th May 2015 pg.3-6
193
Supra note 145 para.28

55

This is because; expert knowledge may be used to lay down minimum packages of housing
facilities.194
In dealing with the issue of polycentricity, the court should assess article 24 of the
constitution. This is to help it not to become overly differential to the executives policies in
relation to the right to housing by over-focussing on the limitation of the right to housing.
A higher standard of enforcement of the right to housing is necessary and the court should be
proactive in determining the minimum that each person should enjoy in the realisation of the
right to housing. This will be necessary for the right to housing for example where the
adequate and accessible housing is not well defined.
3.4.2 Enactment and amendment of laws and policies.
As has been stated above, the minimum core obligation on the state in relation to housing
should be translated into national, regional and local levels. This should be via carefully
targeted policies and programmes that duly implement the obligation. This means that to
meet the minimum core obligations, at the very least the state is to develop laws and policies
from the grass root.
As was observed in chapter two, the state policies and legislations as obligated under article
21 of the constitution need to be revised as a first step towards meeting the minimum
standard. The details on the necessary amendments will be discussed in chapter 5 in addition
to other recommendations.

194

Fons Coomans et al (eds.) The Right to Complain about Economic Social and Cultural Rights (1995) pg 84-

85

56

3.5 Conclusion
As discussed in this chapter, the application of the reasonableness standard in the
enforcement of the right to housing in Kenya is problematic. This can be seen by the
challenges that the test presents as espoused above. The minimum core standard if applied in
Kenya will be of significance as it will end up developing a Kenya specific jurisprudence
which will refrain from borrowing blindly from the South African one. This will be
significant as it has been observed under this chapter that the South Africans have a
constitutional provision relating to housing that is different from the Kenyan constitution and
the ICESCR. A minimum core approach in determination of violation will also be effective in
enforcement of both positive and negative obligations.
The need for a Kenya specific jurisprudence that does not pay unthinking deference to other
jurisdictions and that we can export to other jurisdictions however distinguished has been
stated by the Chief Justice Willy Mutunga in different instances. These include; in his
keynote speech for the Africa and international law conference in Albany law school and at
the Supreme Court during the admission of advocates on 19th June 2012. This is also
acknowledged under Section 3(c) and (d) of the Supreme Court Act.195
Admittedly, new paradigms of judicial enforcement of socio-economic rights are emerging as
liberal states come up with new standards and approaches to the enforcement of socioeconomic rights.196However, these approaches depend on the constitutional needs of each
state and therefore there can be no uniformity in the constitutional standards of enforcement
of SERs. Nevertheless, the proposed alternative approach should be taken into consideration
as it is addressed towards a concern facing the justiciability of the right to housing in Kenya.

195

Supreme Court Act no. 7 of 2011

Jeanne .M. Woods, Emerging paradigms of protection for second generation rights Human rights6 Loyola
Public interest Law Journal (2005) p.104
196

57

The amendments and enactments of the laws will be dealt with later. The next chapter is
aimed at carrying out a comparative study with other jurisdictions with an aim of carrying
lessons from them thereon.

58

CHAPTER FOUR
4.0 COMPARATIVE STUDY: DRAWING LESSONS FROM SOUTH AFRICA,
INDIA AND COLOMBIA.
4.1 Introduction
The Constitution of Kenya may be said to be transformative based on the expanded
constitutional provisions that it contains. These include an expanded bill of rights which
includes social economic rights (SERs) such as the right to housing. This can be lauded as a
positive development in Kenya owing to the fact that the Kenyan society has been a society
burdened with poverty197 and inequality.
However, the constitutional provisions for the right to housing and other SERs have been
incorporated in the constitutions of other countries too.198 Different jurisprudences have
developed in terms of enforcement of these rights particularly on the tests applied in
determining violations in regard to progressive realisation. This chapter is aimed at carrying
out a comparative study between these jurisdictions in order to gain an understanding of their
jurisprudence on the standards of enforcement of the right to housing.
This chapter will focus on the Indian, Colombian and the South African constitutional models
in evaluating the test applied under these constitutions. The Constitution of India will be
focussed on since it does not have the requisite provisions for these rights but instead has
directive principles under part IV. The courts in India have been very active in the
enforcement of these rights despite this setback. The Indian and Colombian courts have also
read a minimum core obligation towards the state in the enforcement of these rights which is

197
John Githii, The case for justiciability of socio-economic rights in Kenya: Drawing from the experience in
South Africa, India and the United states (2008) available at http://www.etd.ceu.hu/2009/githii_john.pdf as at
24th March 2015 pg.38
198
Supra note 43Pg.19

59

pivotal for this study. The South African constitution on the other hand has a very rich
jurisprudence in the enforcement of SERs and has heavily been relied on by Kenyan courts.
4.2 INDIA
4.2.1 Constitutional framework
Social economic rights in India are not guaranteed as justiciable rights but rather as political
aspirations to be achieved by the state over time.199 They are offered as directive principles
and with such constitutional status, they cannot be enforced by the court. The provision for
these principles is necessary to India since just like Kenya, economic privileges are mainly
with the minority while the majority are impoverished.200
However, these provisions are a weaker means of protecting SERs. The Indian constitution
does not lay a directive towards the realisation of the right to housing.
4.2.2 Public interest litigation
The development of the jurisprudence of social and economic rights is inextricably linked to
the development of public interest litigation and social action litigation together with
the groundbreaking role played by the Supreme Court of India. This is characterised
by a non-adversarial approach, the participation of amicus curiae, the appointment of
expert and monitoring committees by the court, and the issue of detailed interim
orders by courts.201 In addition, it entails the relaxation of the rules of standing hence
allowing even the poor and those not directly affected by adverse actions to litigate on behalf
of those who have been affected as such.

199

Constitution of India, Article 37 Part IV

Henry J Steiner, International Human rights in context (3rd ed. 2007) pg.322
201
Shivani Verma, Justiciability of Economic Social and Cultural Rights Relevant Case Law, (2005) available at
<http://www.ichrp.org/files/papers/96/108_-_Justiciability_of_Economic_Social_and_Cultural_Rights__Relevant_Case_Law_Verma__Shivani__2005__background.pdf as at 12th April 2015 p. 3,
200

60

Justice Bhagwati in the Gupta case was categorical in emphasising the necessity of locus
standi. He stated that where a legal wrong is done to a person or a determinate group of
persons, and by reason of poverty, hopelessness or disability, any person may proceed to the
High court on their behalf under article 126 for appropriate directions and in case of breach
may proceed to court under article 32 for redress.202
In terms of application to the high court however, there is a requirement for a person to be
acting bona fide and not acting in personal interest.
The provision for public interest litigation is very important owing to the fact that the court
takes a further step in ensuring the participation of amicus and the appointment of experts and
monitoring committees. These help the court in monitoring what the state is doing in the
realisation of a right.
Even though Kenya has changed its position over public interest litigation by allowing such
litigation203 and relaxation of rules of procedure, it can learn other factors relating to
enforcement of the right to housing. This is such as the participation of amicus curiae and the
appointment of expert committees.
4.2.3 Commissions of inquiry.
One of the main concerns in the enforcement of the right to housing is the lack of skills,
competence and information. The judiciary in India has come with the idea of formation of
commissions of inquiry or socio-legal commissions whose function is to provide the judiciary
with the relevant information regarding the enforcement of SERs in cases where there are
budgetary implications.

202
203

S.P. Gupta vs. Union of India AIR (1982) SC 149

Supra note 26article 22 and Mutunga rules 2013 part II 4

61

The courts thus deviates from an overly adversarial position to a more inquisitive position
posing questions to parties as well as exploring solutions. It does not rely on the parties
strengths in reaching a solution. This is among the best methods in avoiding the problem of
inadequacy or lack of information in the adjudication of the right to housing. The importance
of these commissions was expressed by the court in the case of Bandhua Mukti.204
4.2.4 Judicial activism in the enforcement of the right to housing and a minimum core
obligation.
The courts in India have been very active in the enforcement of the right to housing even
though it has not been expressly provided.205 The jurisprudence is centred on the right to
life,206 which has been given a broad and expansive interpretation. Not only has the Indian
courts read the right to housing under the right to life but also they have imposed a minimum
core obligation on the state that is non-negotiable.
In terms of the application of the minimum core approach that imposes a minimum core
obligation on the state on the right to housing, Justice Bhagwati in Francis Colarie stated:207
Of course, the magnitude and content of the components of this right would depend upon
the extent of the economic development of the country, but it must, in any view of the matter,
include the right to the basic necessities of life and also the right to carry on such function
and activities as constitute the bare minimum expression of the human self. Every act which
offends against or impairs human dignity would constitute deprivation of pro tanto the right
to live.

204

Bandhua Mukti Marcha vs. Union of India AIR (1984) SC 802

Supra note 200
206
Supra note 200 article 21
207
Francis Coralie v. The Union Territory of Delhi, (1981) 1 SCC 608
205

62

This is in line with the argument that the Universal Bill of Rights places duties on all member
states to provide SERs on their citizens and to participate in international efforts to foster
social welfare throughout the world. This obligation applies to all nations despite their
economic system, political arrangements or their levels of development.208
Following hereon are cases to illustrate this conception that the courts have taken in India.
4.2.5 The Chameli Singh case.
In Chameli Singh and others v State of UP and another,209this case was an appeal by a land
owner to the Supreme Court of India from a decision of the Allahabad High Court, which
affirmed the right of the state to acquire private lands for the development in the public
interest. Key issues of the case were whether the exercise of the state power of eminent
domain and land acquisition infringes an individuals right to livelihood under the
constitution; whether individual constitutional rights must yield to the public interest;
whether the provision of housing for the poor is an urgent state obligation. Given that the
Indian constitution assures to every citizen economic and social justice, equity of status,
opportunity and dignity, the question was whether state resources should be distributed to
promote the welfare of the weaker sections of society and minimise inequality.
The Supreme Court held that the lack of decent housing for poorer communities was a
national problem that required urgent attention and that the states action was appropriate. It
further held that individual interests must yield to the greater public interest like the provision
of housing for the poor. In its reasoning, the Court defined the meaning of the right to life
under Article 21 of the Constitution in an expansive way in the sense that the right to life is

208
209

David M Trubek in Human rights in international law, legal and policy issues (1984) pg.207
Chameli Singh and others v State of UP and another (1996) 2SCC 549

63

secured only when man is assured of all facilities to develop himself and is freed from
restrictions which inhibit his growth.
The court went further to define the core or what constituted of the right to housing:
Shelter for a human being, is not a mere protection of his life and limb.
It is home where he has opportunities to grow physically, mentally,
intellectually and spiritually. Right to shelter, therefore, includes adequate living
space, safe and decent structure, clean and decent surroundings, sufficient light,
pure air and water, electricity, sanitation and other civil amenities like roads etc.
so as to have easy access to his daily avocation. The right to shelter, therefore,
does not mean a mere right to a roof over one's head but right to all the
infrastructure necessary to enable them to live and develop as a human being.
Right to shelter when used as an essential requisite to the right to live, should be
deemed to have been guaranteed as a fundamental right.
Noteworthy, under paragraph 9 of the judgment the court used a precedent in the Kurra
Subba Rao case in stating the necessity for a minimum that should be enjoyed by the citizens
by stating that: There could be not individual liberty without a minimum of property.210 As
can be inferred from the further explanations under the paragraph, the court was actually
stating the need for a minimum core that the state should provide which is non-negotiable
evidenced by the requirement of immediate realisation of the right to housing by Indian
courts.
4.2.6 The Olga Terris case.
In this case,211 pavement and slum dwellers were to be evicted by the Municipal council of
Maharashtra and Bombay in accordance with the 1888 Bombay Municipal Corporation
Act.212 The slum dwellers moved to court claiming that such an action would violate their
right to life under Article 21 of The Indian Constitution since having a home in the
city gave them a chance to livelihood. The court was of the opinion that the right to life
210

Kurra Subba Rao v. Distt. Collector [ 1984 (3) APLJ 249

Olga Tellis & Others vs. Bombay Municipal Council (1985) 2 SUPP SCR51
212
Bombay municipal corporation Act SS. 312-314
211

64

encompassed the means of livelihood as supported by the directive principle of adequate

means of livelihood and work. The court held that such an eviction would be fair only where
a just and fair procedure was under taken in accordance with the law. In the instant case, the
court found that these procedural safeguards were fulfilled and there was no right to an
alternative site. However, the court went ahead to grant a one month temporary reprieve
before any eviction was undertaken.
Although the final orders in Olga Tellis found that the Bombay Municipal Corporation Act
was constitutional (under Article 14 and 19 of the Constitution) ; and that pavement dwellers
should be evicted, the Supreme Court also laid down that this could only be done after
arranging an alternative accommodation for them. The court ordered that (i) sites should be
provided to residents presented with census cards in 1976 (ii) slums in existence for 20 years
or more were not to be removed unless land was required for public purposes and, in that
case, alternative sites must be provided (iii) high priority should be given to resettlement.
The evictions were to be delayed until one month after the monsoon season (31
October 1985).
In rejecting the idea of the lack of necessity for a notice by respondents, Justice Chandrachud
stated:
The contention of the Corporation that no notice need be given since there can
be no effective answer to it, betrays a misunderstanding of the rule of hearing,
which is an important element of the principles of natural justice The eviction
of the pavement or the slum-dweller not only means his removal from the house
but the destruction of the house itself. And the destruction of a dwelling house is
the end of all that one holds dear in life.213
The court was keen to state that if there was no alternative accommodation for those
residents, then they could not be evicted thus emphasising the need for a minimum enjoyment

213

Supra note 211 pg. 582

65

that is, no evictions without an alternative and the state has the obligation to provide that
alternative.
4.2.7 Francis Coralie Mulin v Administrator214
The need for a minimum core enjoyment in the right to housing is averred by justice
Bhagwati. In this case he observes:
Of course, the magnitude and content of the components of this right would depend upon the
extent of the economic development of the country, but it must, in any view of the matter,
include the right to the basic necessities of life and also the right to carry on such function
and activities as constitute the bare minimum expression of the human self. Every act which
offends against or impairs human dignity would constitute deprivation of pro tanto of this
right to live.
In addition, expressions such as "basic necessities of life" "bare minimum expression of the
human self" and "human dignity" found in the judgement stresses on the need for a minimum
core that has been read from the right to life under article 21 of the Indian constitution.215
4.2.8 Observations.
Although some scholars such as Kothari have been critical on how the Indian jurisprudence
has been avoiding the application of international legal instruments in the adjudication of the
right to housing,

216

as can be adduced from the cases above, the Supreme Court has been

active in enforcing the right to housing by reading a minimum core in this right which is
broadly derived from the right to life under Article 21.217 The Supreme Court for example in

214

Supra note 207

ibid
216
Jayna Kothari, Right of housing: constitutional perspective on India and South Africa lawyers collective
(2001) available at http://docs.escr-net.org/usr_doc/kothari_article.doc as at 13th April 2015 pgs. 19, 20
217
Supra note 200 article 21
215

66

the Chameli case relied on article 11(1) and 25 in enforcing the right to housing.218 India also
acceded the ICESCR 10th April 1979.219 The minimum core standard is also the international
standard that is recommended by the CESCR thus, Kotharis argument cannot stand.
Indias role in enforcing the right to housing is in line with international legal instruments.
This is evidenced by the provisions that no one may be evicted without consultation, one may
not be evicted without an alternative accommodation being provided and the state has a duty
to provide a minimum amount which in India may even include a mud-built thatched house
or a mud-built fire-proof accommodation.220
Finally the system in India is more of an inquisitorial system.
4.3 South Africa.
South Africa has not ratified the International Covenant on Economic and Social
Rights (ICESCR) but its Constitution includes key social and economic rights including the
right of access to adequate

housing.221 This constitution does not only adopt socio-

economic rights, but also makes no distinction between civil and political rights, and the
socio-economic rights. The South African constitution and its Kenyan counterpart are similar
in that they both provide for the justiciable right to housing.
4.3.1 The Constitutional Framework
The South African constitution provides for the right to housing under section 26. The section
under paragraph (1) states that; every person has the right to have access to adequate housing.
Under (2), it provides that the state must take reasonable legislative and other measures
within its available resources to achieve the progressive realisation of this right.
218

Supra note 210

UN Data base, status of the ICESCR as at 4th April 2015 available at https://treaties.un.org/pages as at 4th
April 2015
220
Shantistar Builders v Narayan K Totame (1990) 1 SCC 527
221
South African constitution 1996 S.26
219

67

Before the enactment of the current constitution in 1996, the former constitution of South
Africa did not provide for the social and economic rights but after extensive debates, the
rights were included.222 This situation can be compared to the Kenyan context in which the
right to housing and other SERs had not been included under chapter v of the repealed
constitution. The current dispensation is different now and it provides for this right and has
heavily borrowed from the South African one.
The South African jurisprudence can be termed as one of the most progressive jurisprudence
in the world in terms of SERs. It provides for the rules of standing unlike its Indian
counterpart that heavily relies on the relaxation of the rules of standing by the court.223
The following case law will show how the court in South Africa has adjudicated upon the
right to housing and what test has been used.
4.3.2 The Grootboom case
In the Government of the Republic of South Africa and Others vs. Grootboom and
Others, the respondent,224 Mrs Grootboom, was one of a group of people living in an
informal settlement that proceeded to illegally occupy a nearby land earmarked for low cost
housing. As they were forcibly evicted from that land, their shacks and possessions
were destroyed in the process. They then settled on a sports field as their original places of
residence had already been occupied by other people. They then approached the Court,
claiming that their right to access to adequate housing was being infringed as well as
their childrens right to shelter. The Court issued a declaratory order requiring the state to
remedy this failing by devising and implementing a programme that included measures to

222

Eric .C. Christiansen, adjudicating non-justiciable rights: Socio-economic rights and the South African
Constitutional Court. Available at http:// http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999700as at 3
January 2015 pg. 373
223
Constitution of the Republic of South Africa 1996, S.38
224
Government of the Republic of South Africa and Others vs. Grootboom and Others 2000 (11) BCLR 1169

68

provide relief for those desperate people who had no land, no shelter and had not been
catered for in the state programme. The court then assigned the South African Human Rights
Commission, an independent national body, to monitor and report on the status of the
changes.
The reasonableness test, as applied in this case that has been a major precedent in South
Africa and Kenya,225 is worth examination. Manifestly, it is the heartbeat of this research.
4.3.3 The reasonableness test applied in the Grootboom case.
As per section 26(2) of the South African constitution, the reasonableness standard is
applicable in South Africa in regard to enforcement of the right to housing. This is true based
on the wording of the said section.226
As per Yacoob J under paragraph 21, the reasonableness standard has been established in the
South African constitution and it delimits the scope of the positive obligation imposed upon
the state to promote access to adequate housing. He continues to state under paragraph 28 that
differences exists between the International Covenant on Economic Social and Cultural
Rights (ICESCR) and the South African Constitution. These differences, in so far as they
relate to housing, are:
a. The Covenant provides for a right to adequate housing while section 26
provides for the right of access to adequate housing.
b. The Covenant obliges states parties to take appropriate steps which must
include legislation while the Constitution obliges the South African state to
take reasonable legislative and other measures.

225
226

Supra note 77para 16

ibid para. 19

69

Note that the Covenant obliges the state to take appropriate steps while the South African
constitution is express in stating that the state is to take reasonable legislative and other
measures. This is a clear difference as compared to the Kenyan constitution which under
article 21 does not imply the application of a reasonableness test.
The court continues to identify the need for a minimum core by stating that under
international law, the state parties to the Covenant are supposed to demonstrate that every
effort has been applied. This means to use all resources at its disposal to satisfy the minimum
core of the right.227
Strangely, the court later under paragraphs 32 and 33 rejects the idea of a minimum core
obligation by stating that it is difficult to determine what the minimum core would be and that
the CESCR has also not defined it. In addition, the court runs away from the application of
this standard by stating that the constitutional provision provides for the application of the
reasonableness test under paragraph 33 but it leaves an ambivalent state as it acknowledges
that the minimum core is equally important. The court concludes on the minimum core
standard by acknowledging that if it had sufficient information it would have applied that
standard.
The court was ignorant of the fact that just as the reasonableness test is applied and a
consideration of the reasonability of legislative, policy and other measures is at stake, the
minimum core obligations also require the states to take legislative, policy and other
measures, including the setting of standards, to achieve the progressive realisation of the
rights. In addition as admitted under paragraph 42, mere legislation is not enough, the state is
obliged to act to achieve the intended result, and the legislative measures will invariably have
to be supported by appropriate, well-directed policies and programmes implemented by the

227

Supra note 226 para 30

70

executive. However, despite the orders and overturning the minimum core obligation test that
had previously been applied in the dispute in the high court, the respondents in the case did
not benefit from any durable solution.228
In addition the reasonableness test as per the case generally should consider the programme
or the steps taken by the state have prioritised those in desperate need.229
4.3.4 Observation
The South African Constitution has laid a precedent for the application of the reasonableness
test. The test though can be lauded for its recognition of the separation of power principle in
the enforcement of positive obligations of the state; it has several weaknesses as seen in the
previous chapter. It creates several difficulties for the enforcement of the housing right by
individuals and groups living in dire poverty. It is argued rigorously that a reasonableness
review can convert into an excessively deferential standard and thus fail to impose an
obligation upon the State to formulate and implement national strategies based on a clear
understanding of the guaranteed right to address access to SERs for the population at large.230
This problem was very clear in the aftermath of the above case in which the lifestyle of the
citizens who litigated in this case has not changed. Additionally, this has been blamed on the
lack of the court to undertake a supervisory role in ensuring that the state followed the orders
that were granted to it.231

228

The original case in the High court was Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR
277 (C).
229
Supra note 226 para 63
230
D.M. Davis, South African Constitutional Jurisprudence: The First Fifteen Years (2010) vol.6 Annual
Review of Law and Social Science pg. 285-300
231
Supra note 7

71

4.4 Colombia
The Colombian Constitution is clear under Article 51 which provides that: All Colombian
citizens are entitled to live in dignity. The state will determine the conditions necessary to
give effect to this right and will promote plans for public housing, appropriate systems of
long-term financing, and community plans for the execution of these housing programs.
Moreover, the constitution imposes a duty on the state to ensure the gradual access of
agricultural workers to landed property and services involving housing with the purpose of
improving the life of peasants.232
Chapter four of the Colombian constitution is on the protection and application of rights. The
constitution introduces different ways for the protection of rights. This is through procedures
to safeguard different types of rights and interests protected by the Constitution, including a
writ to order administrative authorities to fulfil their legal mandates in specific situations
(Accin de Cumplimiento), article 86 to protect collective rights (Accin Popular), article 87
to secure rights of specific social groups (Accin de Grupo); finally article 88 the writ of
protection of fundamental rights (Accin de Tutela).233
In Colombia, the minimum core standard for protection of the right to housing, which falls
under article 88 of Accin de Tutela, has been embraced as per the case below:
4.4.1 Sentencia T-025 de 2004
This case involved the displacement of people that led to the filing of a writ by 1150
households all averaging at 4 persons per core. The Snow Conditions for IDP associations
filed the action. The suit was heard after consolidation of files of different people who had

232

Constitution of Colombia article 64

Vanice Regina Lirio Do Valle, Judicial Adjudication in Housing Rights in Brazil and Colombia: A
comparative perspectiveavailable at http://www.ssrn.com/abstract=2252991 as at 5th June 2015 pg.22. Tutela
means to be under the courts guardianship or protection
233

72

been displaced at the time by the state. They composed mainly of women, children and the
elderly.
The court found the displacement unacceptable and based on the serious impact that it had on
the plaintiffs in this case, it posed a question on whether to declare an unconstitutional state
of affairs.234 The court went further to state the grounds on which it would declare the
constitutional state of affairs which include : (i) the massive and widespread violations of
various constitutional rights that affects a significant number of people; (ii) the prolonged
failure of the authorities in fulfilling their obligations to ensure the rights are fulfilled; (iii) the
adoption of unconstitutional practices, such as the incorporation of the tutela as part of the
process to ensure the rights are violated; (iv) the failure to issue legislative, administrative or
budget necessary to prevent the violation of rights. (v) the existence of a social problem
whose solution compromises the intervention of several entities, requires the adoption of a
complex set and coordinated actions; requires a level of resources and substantial additional
budgetary effort; (vi) if all affected by the same problem would come to the tutela (for the
protection of their rights), it would ultimately produce a greater judicial congestion.
The court found that the case qualified under the above qualifications and thus declared the
unconstitutional state of affairs.
Under paragraph 9 of the judgment, the court stated that the minimum protection should be
timely and effectively guaranteed. It further stated that:
1) Under no circumstance can the core of the basic constitutional rights of displaced
persons be violated.
2) The state has a duty to provide the minimum rights to life, dignity, physical,
psychological and moral integrity, to family unity, to provision of health services and
234

Sentencia T-025 of 2004 para. 7

73

basic protection against discrimination. Furthermore, on this condition displacement

and also the right to education.
The court further stated that the state had the freedom to comply with the orders that it later
gave in this case by redefining priorities and modifying state policy. It granted the order for
compliance within one year further noting that the state though granted one year of
compliance had the obligation of respecting the minimum core.235 There are different crucial
issues to perceive in the above case as will be discussed below.
4.4.2 Definition of Minimum Core by the Colombian constitutional court.
The court was able to define what a minimum core meant in that peculiar circumstance of
displaced people. This is a commendable development since in South Africa as per the
Grootboom case; the court stated that it would be impossible to define what a minimum core
entails.236 The Colombian constitutional court in this case asseverates that there is a need to
differentiate between the obligation of the state to respect and not to interfere with the core
minimum of the displaced Vis-a -Vis the satisfaction by the authorities of certain derivative
duties of internationally recognised rights and constitutional rights of the displaced.
The court set the bar higher by averring that the authorities cannot violate the minimum core
and have no power to prosecute anyone that they have displaced or are trying to displace in
the Colombian territory. The court also rebutted the arguments seen in other jurisdictions that
tend to infer that SERs are not important since they involve public spending or redirecting
other governmental authorities in spending. In the ultimate definition of what constitutes the
minimum core the court tends to infer that the violation of rights that allow survival with
dignity is the violation of the minimum core. As a result, there is a need to draw a line
between state and imperative obligations and the need for urgent compliance against the
235
236

Supra note 234 para 9

Supra note 225 para 30

74

displaced population in contrast to those that are well-off. However, this does not relieve the
state the responsibility of applying the maximum available resources in meeting its obligation
for every citizenry in the country as obligated under International law.237
The court further indexed a number of rights that the state must meet the minimum: 1) the
right to life 2) the right to dignity physical, psychological and moral integrity 3) the right to
family and family unity. 4) the right to minimum subsistence as an expression of fundamental
right to a living wage which inculcates the access to food and water, basic shelter and
housing, appropriate clothing and essential medical services and sanitation.
4.4.3 Simple and Complex Orders
The Colombian constitutional court gives two types of orders these are complex and simple
orders. Complex orders relate to the state of unconstitutional state of affairs and aim at
guaranteeing the rights of all displaced people regardless of whether they have gone to the
tutela for protection of the rights or not. Such orders are aimed at entities responsible for
assisting the displaced population to establish within the orbit of its power and reasonable
time the necessary correction to overcome shortages of resources and precarious institutional
capacity to implement state policy of assistance to the displaced population.
Simple orders on the other hand are aimed at responding to specific requests of the actors in a
tutela. They are compatible with the line of jurisprudence of the constitutional court to protect
the rights of the population displaced.
4.4.4 Supervisory jurisdiction
In the Colombian judicial system, the procedure to be observed in accin de tutela
is regulated by Decreto 2591 de 1991, in which a provision can be found (art. 27) that allows

237

Supra note 234 para 9

75

the Court to dedicate itself to a supervisory jurisdiction. That strategy is being fully used in
monitoring the compliance with the Courts decision in such a difficult matter as that of the
displaced people.238
In some instances the court has even promoted a special public audience which according to
its own rulings should evaluate the effectiveness of the different disciplinary, fiscal and
judicial mechanisms that provide compliance with the orders delivered by the Constitutional
Court as ruler of an accin de tutela intending to protect displaced people; also the
obstacles

and institutional practices that have turned difficult the application of the

decision.239
4.4.5 Observation
The Colombian experience is ultimately the perfect example of how the minimum core
approach has been applied successfully and as discussed it has overcome every single
argument that has been raised by scholars and judges against the minimum core approach in
the realisation of the right to housing. Further discussions will be done below.
4.5 Epilogue
As observed under this comparative study, most jurisprudences have applied the minimum
core test in the progressive realisation of the right to housing even on positive obligations.
The problems of this test asserted in the previous chapter have been dealt with, leaving no
reasonable doubt that this test is the best test that should be applied. The need for having a
minimum core of enjoyment is a basis of ensuring that individual SERs are not largely
deprived off their raison dtre/ purpose.

238
239

Supra note 233

ibid

76

One of the challenges as articulated in the previous chapter in regard to applying the
minimum core is the access of information which has been dealt with through commissions
of inquiry observed in the Indian courts. These commissions have the sole duty of providing
information to the judges.
Kenya has failed to embrace the minimum core test but as compared to India, the courts there
have been proactive to enforce the right to housing as seen in the above cases. The courts
have read a minimum core requirement and have broadly interpreted the right to life to
incorporate the right to housing and other SERs. The courts in India have not only read a
minimum core into the right to housing but have also defined what that minimum core
consists of. This has overcome the problem that the South African courts have claimed of
being unable to define what a minimum core consists.
The courts in South Africa as seen from the Grootboom case (supra) have also acknowledged
that the minimum core evaluation of SERs cases is important. Thus, why dont they just
apply it? The problem is that their constitution is express in stating that the reasonableness
test should be applied.
The Colombian court on the other hand has also applied the minimum core test. The courts
have been categorical that the core of a right cannot be violated and if such violation occurs,
the court declares an unconstitutional state of affairs. The court has also stated that upon
violation of the right to housing, priority should be offered to those who have been displaced.
The court has dealt with the problem of polycentricism by providing complex and simple
orders as explained. Unlike in South Africa where the reasonableness test has been applied
and courts do not have a supervisory power, the courts in Colombia while applying the
minimum core test are empowered by legislation with supervisory jurisdiction to ensure
compliance.
77

To meet the minimum core as paragraph 42 of the Grootboom case, the state must take
measures such as legislative measures and well-directed policies and programmes must be
implemented by the executive. The recommendations on the steps that should be taken will
be in the following chapter.

78

CHAPTER FIVE.
5.0 CONCLUSION AND RECOMMENDATIONS.
5.1 Conclusion.
This research compares and contrasts the application of the two standards in evaluating
progressive realisation in housing. As can be deduced from it, the minimum core standard
appears to be much superior to the reasonableness standard in the enforcement of obligations
of the state.
The reasonableness test is coupled with difficulties such as the failure by the state to devote
maximum resources in the realisation of the right to housing. It is difficult to ascertain what is
reasonable or not. In addition, the standard tends to be skewed towards favouring the state
whenever a claim of unavailability of resources is raised. This is because the standard in its
ambit to ensure the separation of power principle stands, it compromises with the state and
may result in the states failure to apply all the available resources. These amongst other
weaknesses may result in disfiguring the raison dtre of the right to housing.
There is a need for a higher standard that recognises the minimum of a right that cannot be
violated by the state or should be met by the state thereon. Would a government programme
be reasonable if it does not provide the effective implementation of the most essential
elements of a right (the minimum) especially for those people whose situation is most urgent
or intolerable? The answer is negative. Nonetheless, a court applying the reasonableness test
might find it reasonable if the state is able to prove that it is working towards implementing
laws and policies in the achievement of such a right. This is because the reasonableness test

79

requires the state to just proof such an arrangement and thus it is deemed to have met its
obligation.240
The application of the reasonableness test as disclosed in South Africa has brought less to
them as compared to what they had expected upon the enactment of their constitution. This is
per the scholars who have analysed the aftermath of cases such as the Grootboom case.
It is the high time that the Kenyan courts should realise that the application of the
reasonableness standard is a kind of limitation that should not be imported blindly into our
circumstance. The application of this test is not appropriate in Kenya but the Kenyan courts
seem to apply foreign jurisprudences just because they seem to fit a particular circumstance.
Such mechanical and haphazard application of jurisprudence from other jurisdictions will
have an adverse effect in Kenya since such jurisprudence was developed in those
jurisdictions to cater for their circumstance which is different from ours. The constitution of
South Africa is clear in endorsing the reasonableness test, the Kenyan one does not endorse
such a test and relying on article 2(5) and (6), the international standard i.e. the minimum
core test is the applicable test.
South Africa has not been able to effectively remedy housing rights with the application of
the reasonableness test. As a result, a weak courts and strong rights system has arisen.
Kenya can learn from other jurisdictions as discussed in chapter four that have applied the
minimum core standard and thus there is no reason to shy away from this test.
Issues that have been raised due to the application of the minimum core test such as the
polycentricism issue have been catered for in other jurisdictions such as Colombia and India.
In a judicial context, a polycentric situation is one in which a judicial decision will have
complex repercussions that will extend beyond the parties and the factual situation before the
240

Chapter 3 para 3.3.1

80

court. This in Colombia has been dealt with through simple and complex orders and also the
supervisory jurisdiction of courts in monitoring the states compliance with its orders.
The courts in Kenya should know that it is their mandate to provide an interpretation that will
help in the realisation of the right to housing. If courts cannot translate written law into
immediate, effective and systematic remedies, then the provision for social rights would
amount to a mere guile by the constitutional framers.
As noted by the chief justice,241 it is the high time that we develop a jurisprudence that we
can export to other jurisdictions however respected. Admittedly, there have been a number of
litigations regarding housing rights in Kenya. Most of them are however inclined to the
negative obligations of the state with none being on the positive obligations. It is the high
time that the courts in Kenya be prepared to handle litigations regarding the enforcement of
positive obligations. This is because these kinds of litigations are going to flood the Kenyan
courts in the near future and the application of the minimum core is to ensure a settled nonconfused line of thinking in progressive realisation.
The promulgation of the Kenyan constitution does not mean that constitutional making
process came to an end. Constitutional making is progressive and its interpretation is even
more crucial. In the enforcement of the right to housing for example, a preference needs to be
given to the suffering sections of the society.
For the minimum core standard to apply; there has to be measures that should be undertaken.
Mere declarations of the law capped by the functus officio doctrine will not help in the
realisation of the right to housing.242

241
242

Chapter three para 3.5

Chapter 1 para 1.0

81

In Kenya for example, emergency accommodation which is an essential element in the right
to housing is largely in the hands of private charities. The state does not have a programme
that exists to address emergency accommodation for those who find themselves in the need of
such accommodation. The government also tries to equate the provision of funds for
resettlement in Kenya as provision for an alternative. For example after the 2007/2008 post
election violence, the government considered the internally displaced persons who had
received sh.10000 as resettlement funds from the Ministry of Special Programmes as
resettled.243 Would such an act by the government be said to be reasonable? If the answer is
in the affirmative then the displaced persons in a court that uses the reasonableness test would
not be helped. On the other hand if it is not reasonable what criteria would the court use in
determining what is reasonable.
Courts need to have a mechanism to access factual information that they can use in the
adjudication of the right to housing. They also need to incorporate a collective problem
solving mechanism.
On its part, the state has taken some commendable steps in the realisation of the right to
housing. The measures as seen in chapter two include those of institution of policy and legal
measures towards the realisation of the right to housing. In spite of these positive
developments, majority of these policies and laws are not comprehensive and concrete
enough to assure total realisation of the right to housing.244
It is remarkable that the Kenyan citizens who have been displaced without the ability to
proceed to court have not benefited from a durable solution by the state. The presence of

243
244

Chapter 3 para 3.1.1

Chapter 3 para 3.2.5

82

street families and the recurrent suppositions by the government that there are no IDPs
supports this fact. The dependence on outdated data buttresses the issue.245
As a result, the state ought to take certain policy and legislative measures to at least meet the
minimum of the right to housing. This is as required under international law and as required
in the application of the minimum core test.
5.2 Recommendations
5.2.1 Recommendations to the judiciary
1. Application of the Minimum core test- as has been overly declared in this research,
the standard test that should be applied in Kenya is the minimum core test. The test is
in line with the constitutional provisions under article 21 (2) which obligates the state
to take legislative, policy and other measures, including the setting of standards, to
achieve the progressive realisation of the rights guaranteed under Article 43 and also
article 2(5) and (6) which provide that the general principles of international law and
treaties ratified by Kenya shall form part of Kenyan law respectively. The
reasonableness test should not be applied in Kenya.
There is necessity for consistency of the jurisprudence that is developed by the
Kenyan courts in the enforcement of both positive and negative obligations of the
state and the application of this test will be crucial to meet those ends. The courts
should not shy away in the application of this test since the Indian and the Colombian
courts have applied it successfully and have been able to even give the meaning of
what a minimum entails an issue that the South African courts have previously
claimed impossible in the avoidance of applying this test.246 In addition South African

245
246

Kepha Omondi Onjuro and others v A.G. and 5 others (2015) Para 13
Chapter four Para 4.3.3

83

constitution is different from ours in terms of the wording and thus we should not
follow their jurisprudence blindly.
2. Development of Kenyan specific jurisprudence- as stated by the Chief justice, the
Kenyan courts should endeavour to develop a jurisprudence that caters for the Kenyan
circumstance. The current constitution is viewed by majority of Kenyans as the
saviour and courts should therefore by very consistent in their adjudication of rights
by avoiding haphazard mechanical application of jurisprudences from other
jurisdictions just because such jurisprudence seems to cater for a specific situation. As
an example the borrowing of the reasonableness test has had differential effects on
Kenyan cases as discussed in chapter one and two.
3. Capacity building in the judiciary- one of the main problems in Kenya is the backlog
of case. There is need to employ more judges to deal with right to housing cases
owing to the fact that there are no specialised courts for SERs cases. In addition, the
minimum core approach requires immediate realisation thus backlog of cases may be
a hindrance. Emergency housing for those in utmost need would also be
inconvenienced especially for the internally displaced.
4. The appointment of commissions of enquiry which consists of experts to assist the
court in both information gathering and monitoring compliance with its judgments.
One of the problems that has been raised in the application of the minimum core
approach is the lack of information. To enable the actualisation of this approach as
envisaged by this research these commissions will be necessary to provide such
information as they consist of experts who will be able to advise the court on SERs.
5. Issuance of complex and simple orders as means of total assurance that the petitioners
will get a remedy. The courts should also borrow the Colombian and Indian

84

constitutional court manner of ensuring that there is public participation and

proceedings are more inquisitorial in nature.
5.2.2 Recommendations to the state
To meet the minimum obligations under international law and as envisioned by the minimum
core approach, the state should:
1. Ensure the provision of security of tenure- the state should recognise informal
settlement in a bid to ensure that those citizens are not arbitrarily removed from their
premises without an alternative. This is would be a very bold step in ensuring that the
minimum is met.247 The state in that regard should thus ensure:
(a) The Community Land Bill 2013 is enacted into law- the bill recognises and
defines what community land is while also providing for its ownership and tenure
system under section 6 and as per article 63 of the constitution. The definition of a
community is also provided for under the Bill in section 2.
(b) The Eviction and Resettlement Bill 2012 should also be enacted into law. The
courts in Kenya have called upon the enactment of this law since there are no
clear guidelines on the manner in which evictions should be taking place in Kenya
and courts overly rely on international law as the authority of law.248 The
legislation will thus recognise that there cannot be an eviction without an
alternative being provided and community participation is a must amongst other
provisions.
2. Slum upgrading projects should be transparent- one of the major barriers in the slum
upgrading project is the fear by the structure owners losing out once the upgrade is
done. Cases of corruption also have been rampant as some of those involved in the
247
248

Chapter three para. 3.2.5

Chapter one para 1.7

85

project allocate themselves or other people the upgraded houses instead of the original
owners.249 The state should work towards assurance of those who are evicted to pave
way for such upgrade will regain the refurbished houses. This can only be done
through participation and representation during the process. The government should
thus work to improve the Kenya Slum Upgrading Programme (KENSUP) to ensure
more local community participation or collaboration. KENSUP projects remain
significantly low and thus a need for a better functioning project that has legal and
institutional framework guide to ensure a responsible implementation of slum upgrade
on a sustainable basis.
3. Access to Information- this is important in meeting the bare minimum. The
government through agencies like the Ministry of Housing should take up the
challenge of documenting and making available data on the right to housing. This is
because there is no organisation in Kenya or even the state that has credible data on
areas such as homeless people, the number of housing units available to people of
different social economic status or even the number of evictions. The provision of
such information will be in line with article 35 of the constitution. In line with that,
the government should also ensure the enactment of the Access to Information Bill
2013. Access to information in Kenya is one of the major hurdles in human rights
promotion in Kenya. Citizens ought to know violations and the options they have.
Such access will also enable the state to know what sections of the society require
priority in provision of housing.
4. Equity in housing- the government seems to be over focussed on urban areas for
example in terms of slum upgrading projects. There is a need for the government to
also focus the projects to the rural areas too.

249

Chapter three para 3.1.1

86

5. The Housing Act need to be streamlined with the constitutional provisions recognising
the right to housing. The role of the National Housing Corporation should be radically
reviewed to bring it in line with the devolved system of government as per the fourth
schedule: national housing policy is a duty of the national government while planning
and development is a devolved duty of the county government.
6. The state should also put in place a mechanism to deal with the problem of
homelessness and displacement in Kenya. This will be aimed at dealing with those
with the immediate housing needs. This is by development of the Draft Policy on
Internal Displacement.
7. Increasing the funding of housing policies and projects. For example the rate at which
the slums are being upgraded has been stated as a drop in the ocean by some
government officials. The government needs to increase the funding of that project,
the National Housing Cooperation and the Rent restriction tribunal which have
previously been underfunded.250
8. The development of well planned policies on urban planning and regulation to inhibit
the sprawling of slums and other informal settlements as a major way of preventing
citizens from living in squalid conditions. In this regard, there is a need to actualise
the provisions in the Urban and Cities Act 2011.
9. The state should step up its war on corruption for example the corruption that has
been unearthed in the National Housing Corporation and under the KENSUP project.
10. The National Housing Corporation also needs to increase the amount of funding for
rural housing development past the current 50% value of a dwelling. This is because
the current funding is inadequate.

250

Chapter 3 para 3.2.5

87

11. The state should also develop a policy to cater for emergency accommodation needs
in Kenya.
5.2.3 Constitutional Amendments.
1. Article 43 ought to be amended to incorporate a provision that prohibits arbitrary
eviction from ones home or destruction of ones home without the necessary
procedures being followed. The article should read as follows:
Article 43 (1) .Every person has the rightb) To accessible and adequate housing, and to reasonable standards of sanitation:
(i) No one may be evicted from their home or have their home demolished without
an order of the court being made after consideration of all the relevant circumstances
and a requisite alternative being provided.
(ii) The legislature shall ensure the enactment of laws that prohibit arbitrary eviction
and grant security of tenure even for informal settlements.
2. A clause should be added under article 23 conferring courts a supervisory jurisdiction
in a bid to ensure compliance on orders in SERs cases. The said section should read
as:
Article 23(4) the courts shall have a supervisory jurisdiction over any matter that they
shall adjudicate upon in the enforcement of social economic rights.
5.2.4 Recommendation to other institutions
These are recommendations to civil society groups such as NGOs and the Kenya National
Human Rights and Equality commission. These institutions should;
1. Establish a monitoring and documentations system to record trends on different
aspects of housing rights as a means to optimize the impact of their protagonism.

88

There is also a need to begin recording and keeping data on evictions and
displacements in Kenya.
2.

Pressure the director of public prosecutions to take steps in ensuring that those
involved in corruption, or abuse of office e.g. in the National Housing Corporation
and KENSUP are prosecuted.

3.

Solicit for the enactment of crucial bills into law such as the Eviction and
Resettlement Bill and the Community Land Bill. They should also be active in
lobbying for the implementation of the Prevention, protection and assistance to
internally displaced persons and affected communities Act (no.56 of 2012). These
legislations will be a very important development if enacted and implemented since
they will play a part in the provision for the minimum enjoyment of the right to
housing.

In conclusion therefore a comprehensive move to change the adjudication of rights in Kenya

by applying the minimum core approach, the revision, enactment and implementation of laws
and policies there under will play a crucial part in ensuring that the minimum right to housing
as envisioned by this research is actualised in Kenya. It would be unfair for the application of
the reasonableness test that does not focus on the enforcement of rights but on the procedural
process or technicalities.

89

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