Constitutional Evictions: Mitu-Bell and Housing Law
An owner may have a legal right to recover land and still carry out the eviction unlawfully. Mitu-Bell Welfare Society v Kenya Airports Authority is important because it separates those two questions. The case did not give informal settlers ownership of public land. It held that people do not lose their constitutional protection simply because they lack title, and that the method of eviction must respect law, dignity and the right to housing.
The case is even more practical today than when the dispute began.
The Mitumba Village eviction occurred in 2011, before Kenya enacted the
detailed statutory eviction regime now found in sections 152A to 152I of the
Land Act. A modern reader can therefore use Mitu-Bell together with the current
statute: the judgment supplies the constitutional principles and remedial
framework, while the Land Act provides concrete notice and eviction procedures.
What
happened at Mitumba Village
Mitu-Bell Welfare Society represented residents of Mitumba Village
near Wilson Airport in Nairobi. Thousands of people lived in the settlement. In
2011 a newspaper notice required them to leave within a very short period. The
residents went to the High Court and obtained conservatory orders intended to
stop eviction while their case was being heard.
The settlement was nevertheless demolished. Homes, schools and other
structures were destroyed, and residents were displaced. The High Court found
constitutional violations and crafted a process aimed at meaningful relief. The
Court of Appeal later took a much narrower view of both socio-economic rights
and the remedies a court could grant.
In Mitu-Bell Welfare Society v Kenya Airports Authority & 2
others [2021] KESC 34 (KLR), the Supreme Court restored the constitutional core
of the case. It held that the residents' lack of title did not make them
legally invisible and that unlawful eviction could violate housing, dignity and
related rights.
Housing
rights do not create automatic ownership
One of the easiest ways to misuse Mitu-Bell is to say that long
occupation of land creates ownership. The Supreme Court did not hold that.
Kenya Airports Authority's property and aviation-safety interests remained
legally relevant.
The constitutional protection concerns how public power is
exercised. A State agency may have a lawful basis to recover land, but it must
still use lawful process. Adequate notice, humane treatment, attention to
vulnerable persons and compliance with court orders cannot be discarded simply
because the occupants are informal settlers.
This distinction protects both sides of the legal problem. It
prevents Article 43 from becoming an automatic transfer of someone else's land,
while preventing ownership from becoming a licence for arbitrary demolition. A
court must identify the lawful land interest and then separately examine the
legality and human consequences of the eviction method.
The Land
Act now supplies concrete steps
The Land Laws (Amendment) Act 2016 inserted sections 152A to 152I
into the Land Act. Those provisions now regulate eviction from public,
community and private land. Section 152B states that an unlawful occupant is to
be evicted in accordance with the Act.
For public land, section 152C requires the National Land Commission
to notify affected persons through written notice, Gazette publication, a
newspaper with nationwide circulation and, where appropriate, radio in a local
language, at least three months before eviction. For private land, section 152E
also requires not less than three months' notice and adds requirements designed
for both individuals and large groups.
Section 152F allows a person served with an eviction notice to apply
to court for relief. The court may confirm, cancel, vary or suspend the notice
and may order compensation. Section 152G then regulates the eviction itself. It
requires identification of those carrying it out, formal authority, protection
of dignity and security, special measures for vulnerable people, protection
against arbitrary loss of possessions and necessity and proportionality in the
use of force.
These provisions make the modern practical question much clearer. A
landowner or public authority should not ask only whether occupation is
unlawful. It must also ask whether every procedural step for removal has been
satisfied.
International
standards remain interpretively useful
Mitu-Bell also considered international material on forced
evictions. The International Covenant on Economic, Social and Cultural Rights
protects the right to adequate housing. The United Nations Committee on
Economic, Social and Cultural Rights' General Comment No. 7 explains that
forced eviction is generally incompatible with the Covenant unless strong
safeguards and justification are present.
The Supreme Court was careful about the domestic legal status of
international guidelines. A general comment is not automatically transformed
into a Kenyan Act of Parliament simply because Articles 2(5) and 2(6) recognise
international law and ratified treaties. Its proper value is interpretive: it
can help illuminate what dignity, housing, consultation and protection against
arbitrary eviction require.
That restrained use is important for public legal education.
International standards add depth, but the direct legal route for a present-day
eviction in Kenya begins with the Constitution, the Land Act and binding Kenyan
case law.
Why
structural remedies mattered
Mitu-Bell is also a leading case about what a court may do after
finding a constitutional violation. Article 23(3) lists several remedies, but
the Supreme Court held that the list is not closed. In an appropriate case the
High Court may use a structural or supervisory order to make constitutional
compliance effective.
A structural order is useful where a declaration alone will not
repair the problem. The responsible authority may need time to prepare a plan,
provide information, engage affected people, coordinate agencies and report
back to the court. The court can retain enough supervision to test compliance
without running the public programme itself.
The later Court of Appeal decision in Attorney General v Okoiti
[2025] KECA 309 (KLR), whose structural-interdict reasoning was taken to the
Supreme Court in 2026, continued to rely on Mitu-Bell's central safeguard:
supervisory orders must be specific, realistic, effective and directed at
institutions that actually possess the legal mandate to comply. Structural
relief is therefore a controlled enforcement technique, not a licence for
judicial management of government policy.
Preparing
an eviction case before it reaches court
For a public authority or private owner, the strongest protection
against litigation is a documented lawful process. The file should identify
ownership or statutory authority, the legal reason for requiring occupants to
leave, the notices issued, the method and dates of service, consultation where
required, vulnerability assessments, security arrangements and measures for
property left behind.
For affected residents, evidence should be preserved from the
beginning. Copies or photographs of notices, proof of residence, household
composition, disability or age-related vulnerability, school attendance,
photographs of structures, communications with officials and any court orders
can become decisive. If the notice is defective, section 152F provides a direct
route to court before the eviction is completed.
For advocates seeking constitutional relief after an unlawful
eviction, the remedy should be pleaded as carefully as the violation. If
compensation is sought, the harm should be evidenced. If a structural order is
required, the petition should identify the responsible institution, concrete
obligations, realistic reporting periods and the constitutional outcome the
supervision is meant to achieve.
Why
Mitu-Bell remains a leading case
Mitu-Bell matters because it rejects the false choice between
property law and human dignity. The State can protect airports, roads, public
land and other legitimate interests. Private owners can protect title. But
recovery of land must occur through a process that recognises that the people
being removed remain rights-bearing persons.
The current Land Act has made the practical safeguards much more
specific than they were at the time of the Mitumba Village eviction. That
statutory development should be read together with the constitutional rule, not
as a replacement for it.
The ordinary reader's lesson is therefore straightforward. Lack of
title does not create a right to stay forever, but it also does not authorise
eviction by surprise, excessive force or disregard of court orders. Lawful
removal requires lawful procedure, and where constitutional harm occurs, Kenyan
courts have power to design relief that is capable of making the right
effective.
Source note
This article is based on Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] KESC 34 (KLR), Articles 23, 28 and 43 of the Constitution of Kenya 2010, sections 152A to 152I of the Land Act, Attorney General v Okoiti & 3 others [2025] KECA 309 (KLR), Parliament of Kenya & another v Okoiti & 2 others [2026] KESC 28 (KLR), the International Covenant on Economic, Social and Cultural Rights, and the UN Committee on Economic, Social and Cultural Rights' General Comment No. 7 on forced evictions.
Suggested citation:
Ronald Serwanga, "Constitutional Evictions:
Mitu-Bell and Housing Law" East Africa Legal Insight (8 September 2026).