Court rejects bid to stop Kibera housing project

THE High Court yesterday declined to issue orders stopping the planned slum upgrading and road construction projects in Kibera, Nairobi. Justice Mumbi Ngugi ruled that it would not be in the public interest to issue orders stopping the project.

She, however, directed that the Attorney General files a report indicting the nature of the project, its beneficiaries and the extent to which the applicants have been included in the planning and how they will benefit from the project. She conceded to the fact that it is common knowledge there has been an urgent need to upgrade the kibera settlement and provide services and housing to the people living there. “It has been also argued that the Nubian community has a historical claim to the land. The government is now in the process of upgrading should the court find or rule in favour of the petitioners, it would be an adequate remedy to compensate them. But I am unable to issue the orders sought by the applicants,” said Justice Ngugi.

During hearing, the petitioners, through lawyer Onsando Ogonji, argued that ''the government cannot go on acting with impunity''. “They can’t go there and make developments for purposes of upgrading as if the Nubians do not exist,” he said.

Osansdo said that since the project is at a preparatory stage, the court should grant the conservatory orders sought. ''After having lived there for 100 years, compensation can never be adequate for ancestral land,'' he said. But in a quick rejoinder, the state argued that the Nubians cannot claim ownership over government land, which they were told to vacate in 2004. ''The only issue for determination is whether they are entitled for settlement by the government. The petitioners have not even demonstrated ownership of the land,” said the state.       

The Nubians in their suit papers claim that if the projects are allowed to go on, it  will infringe on their constitutional rights on land ownership now that the  community is faced with the danger of losing its land in Kibera. They add that despite the fact that they have inhabited Kibera for over 150 years, the government has failed to recognise their rights and issue them with title deeds.

Shafi Ali Hussein, Khadija Yunis Ali and Fatuma Abdulrahman, who filed the case on behalf of the community says lack of land ownership has caused them to be displaced from their homes without compensation since independence. The government, they said, has always treated squatters on the land and forcibly evicted at will for other developments.

The community is now demanding to be given legal recognition on all land they occupy and be issued with title deeds, noting that they initially owned 4,197 acres in Kibera but they had remained with 780 acres. Justice Mumbi directed that they appear before court on June 27 for directions. According to the judge, there is a possibility that the case could also be heard before a three judge bench.