' Parties
The 18,262 Petitioners herein are adults of sound minds who claim that they were affected by the 2007/2008 Post Election Violence (PEV). They describe themselves as Internally Displaced Persons (IDPs) from Nyamira County.
The 1 st Respondent is the Principal Secretary in charge of State Department of Planning in Ministry of Devolution and Planning. The Petitioners state that all the IDPS resettlement programs fall under this Ministry.
The 2 nd Respondent is the Principal Secretary in charge of State Department for Interior under which the National Consultative Committee on Internally Displaced Persons (NCCC) falls.
The 3 rd Respondent is the Principal Legal Advisor of the government of the Republic of Kenya.
The Petitioners’ Case
Through a Petition dated 14 th December 2020 and amended on 22 nd February 2023, the Petitioners sued the Respondents seeking the following orders: -
A Declaration that the respondents’ payment of Kshs. 60,000/= (Sixty Thousand Only) to the vetted internally displaced persons from Nyamira as against the Kshs. 400,000/= (Four Hundred Thousand Only) paid to other internally displaced persons in other jurisdictions within Kenya is discriminatory, illegal, malicious and unconstitutional.
An order that the petitioners be paid Kshs. 400,000 each less Kshs. 60,000/= (Sixty Thousand Only) as compensation in tandem with all other jurisdictions within the Republic of Kenya.
A declaration that the persons whose names are filed herein on whose behalf this petition has been brought are genuine integrated Internally Displaced Persons who are entitled to full compensation but have not yet been compensated and that their rights guaranteed under Article 27, 28, 29, 43 and 47 of the Constitution have been violated by the respondent.
An order that the respondents do pay general damages to the petitioners for violating their rights.
Costs of this petition.
Any other relief this court deems fit to grant.
A summary of the Petitioners’ case was that they had migrated from their original ancestral homes and settled in parts of the Rift Valley and Nyanza Provinces prior to the disputed 2007 general elections. They state that following the said disputed elections, violence erupted within the Republic of Kenya as a result of which they were violently evicted from the Rift Valley and other areas where they had settled thereby resulting in loss of their homes, properties and belongings.
The Petitioners claim that following the restoration of peace in the country, the government initiated the resettlement of IDPs by offering them monetary support to enable them rebuild their lives. They state that in some instances, IDPs were offered parcels of land to build their shelters and to some extent, houses were to be built for them.
The Petitioners averred that through Legal Notice No. 11 of 2008, a board christened National Humanitarian Fund Board was formed and mandated to resettle Post Election Victims (PEVs) including the Petitioners herein.
They averred that the government’s resettlement program was to provide assistance to the IDPs in the following terms: -
Kshs. 10,000 for startup and reconstruction of burnt up or destroyed houses.
Kshs. 25,000 for reconstruction of basic housing to internally displaced persons whose hoses were burnt or destroyed, and
Land measuring 2 ¼ acres to each family displaced by the violence.
The Petitioners state that out of the Respondents discriminated against them and did not resettle them in accordance with the program as they were only paid the sum of Kshs. 60,000 while IDPs from other regions were paid Kshs. 400,000 and given land on which to build their homes.
The Petitioners listed the particulars of discrimination and/or malice as follows: -
Failing to compensate the petitioners Internally Displaced persons in accordance with Legal Notice No. 11 of 2008.
Discriminating the petitioners internally displaced persons herein in terms of failing to compensate them as other IDPs from various jurisdictions within the Republic of Kenya.
Failing to honour the provisions of Legal Notice No. 11 of 2008.
Taking inordinately long to compensate with the payment stretching to as late as the year 2020.
Keeping their spirit high for over 10 years without the desired compensation. Whereas other Internally Displaced persons were long compensated and/or resettled.
The Petitioners averred that the criteria used by the Respondents to compensate the Petitioners was wrought with confusion, lack of transparency thereby delivering sinister or unclear intention on the part of the Respondents as the bodies tasked with issues relating to IDPs. They stated that processes attendant thereto and the overtures on the part of the Respondents do not meet the constitutional criteria of non-discrimination on the basis enumerated by Article 27 of the Constitution.
The Petitioners further averred that they made several attempts to follow up the matter with the Respondents to no avail. They state that the Respondents’ actions have condemned them to continue living in deplorable conditions and that their Constitutional rights to Equality and Freedom under Article 27 of the Constitution, their rights to dignity under Article 28 of the Constitution have been violated and continues to be violated.
They state that the Respondents’ attitude and action are bereft of legal and constitutional justification as they have ignored the due process of the law and the Petitioners’ reasonable expectation. They contend that the Law and constitutional rights available to them have been ignored in total thus rendering the entire process unconstitutional, callous, oppressive, unfair, unreasonable and untenable.
The Petitioners further averred that they are apprehensive that if the discriminatory actions of the Respondents are allowed to continue unabated, it will occasion them irreparable emotional, physical and economical loss and suffering considering that they do not have a place to call their abode and/or to do farming which was their main economic activity.
At the hearing of the Petition, the Petitioners presented the evidence of the following 50 Petitioners who, they stated, had authority to testify on behalf of the rest of the Petitioners. The 50 Petitioners were as listed here below: -
No.
Nature of Witness
Name of Witness
Date Testified
PW-1
Naftali Ogeto Aboko
14/06/2023
PW-2
Samuel Mokaya Boera
14/06/2023
PW-3
David Obondi Nyamwaye
14/06/2023
PW-4
Sporat Nyaboke Onsate
14/06/2023
PW-5
Henry Mwamba Nyagaka
14/06/2023
PW-6
Joseph Bosire Ombuse
14/06/2023
PW-7
Simion Atandi
13/06/2023
PW-8
John Agima
13/06/2023
PW-9
Daniel Okemwa
12/06/2023
PW-10
Samuel Oyaro
12/06/2023
PW-11
Batiseba
12/06/2023
PW-12
Isaack Mosigisi
12/06/2023
PW-13
Alice Kwamboka
12/06/2023
PW-14
Justus Ongera Momanyi
12/06/2023
PW-15
Callen Kemunto Bosco
12/06/2023
PW-16
Charles Chacha Masiba
12/06/2023
PW-17
James Rori
12/06/2023
PW-18
Daniel Ongwae
12/06/2023
PW-19
Alloys Ocharo Momanyi
18/12/2023
PW-20
Josphine Moraa Nyang’au
18/12/2023
PW-21
Joseph Misesi Zakayo
18/12/2023
PW-22
Christopher Nyabuto George
18/12/2023
PW-23
Dennis Nyabuto Ounga
18/12/2023
PW-24
Veronica Nyarisa Mokua
18/12/2023
PW-25
James Agwata Nyachiro
18/12/2023
PW-26
Ronald Mobisa Omari
18/12/2023
PW-27
Haron Nyaboga Bwounga
18/12/2023
PW-28
Thomas Aberi Nyareru
18/12/2023
PW-29
Thomson Omagwa Change
18/12/2023
PW-30
Joseph Ochawangi Osoro
18/12/2023
PW-31
Daniel Mikae Nyakongo
18/12/2023
PW-32
Joseph Seme Mogambi
18/12/2023
PW-33
Zachariah Kennedy Keoro
18/12/2023
PW-34
Kennedy Onganyi Moseti
08/04/2024
PW-35
Mary Nyakerario Anyega
08/04/2024
PW-36
Askah Kwamboka Omari
08/04/2024
PW-37
Peter Oganga Makori
08/04/2024
PW-38
Hyline Kwamboka Osiaro
08/04/2024
PW-39
John Ogero Mogambi
08/04/2024
PW-40
Damaris Kwamboka Orina
08/04/2024
PW-41
Veronica Nyangarisa Mokua
08/04/2024
PW-42
Rudia Kemuma Masese
08/04/2024
PW-43
Jane Pamela Onduko
08/04/2024
PW-44
Ernest Mbaka Makori
08/04/2024
PW-45
John Masese Moiruruki
08/04/2024
PW-46
Zakayo Obwaru
08/04/2024
PW-47
Haron Nyaboga Bwounga
08/04/2024
PW-48
Annah Angima
08/04/2024
PW-49
Paul Masese Omari
08/04/2024
PW-50
Doris Nyanchera Masese
29/05/2024
A summary of the Petitioners’ witnesses’ testimonies, as presented by 50 witnesses and as is contained in their respective witness statements was that they had, prior to the year 2007/2008, migrated from Nyamira County and settled in parts of Rift Valley and Nyanza provinces where they lived and carried on businesses. They stated that following the PEV of 2007/2008, they were forcefully evicted from the homes/areas where they had settled for many years as a result of which they suffered loss of businesses, land and other property.
The Petitioners testified that following the PEV, the Kenyan government vetted the victims and paid those who were found to be genuine IDPs the sum of Kshs. 60,000. They stated that the said amount was deposited in their respective bank accounts held at Kenya Commercial Bank after which they were told to await more payment which was however not made thereby triggering the filing of the instant petition.
The Petitioners testified that they had information that IDPs from other regions were paid Kshs, 400,000 as compensation yet no reasons or explanation was given to them as to why they were discriminated during such payment and not given the land that the Respondents had promised them. It was the Petitioners’ case that all PEV victims should have been given equal treatment without any form of discrimination whatsoever.
The Petitioners therefore claimed for the payment of the balance of Kshs. 340,000 and contended while IDPs from other areas like Nakuru were compensated through payment of the sum of Kshs. 400,000/= each, they were only paid Kshs. 60,000/=. They argued that the difference in the payments made to them and those made to other IDPs amounted to discrimination thus violating the provisions of the Constitution, to wit , Articles 27, 28, 29, 40, 47, 50, 258 and 259 thereof.
The Petitioners testified that they did not sign any documents or contracts to signify or confirm the payments that were due to them or that they had received. They also confirmed that the IDPs register was closed on 31 st December 2008 and that the instant Petition was filed in 2020.
They stated that the government (the Respondents) promised to buy them land like other IDPs but that the promise was not fulfilled.
They faulted the Respondents for failing to provide them with security thereby resulting in the misfortune that befell them following the Post-Election Violence that led to their eviction from their homes.
The Petitioners produced the following documents as exhibits: - Identity Cards and Bank Account details of all petitioners.
Legal Notice No. 11 of 2008.
List of IDPs in this case.
List of Government Procured Farms for Settlement of IDPs.
List of IDPs who were paid Kshs. 200,000/= and Kshs. 400,000/= respectively.
Demand Letter dated 4 th February 2020.
A Letter from the Attorney General dated 6 th February 2020.
Extract from Public Finance Management Regulations, 2017.
Executive Summary of progress regarding resettlement of IDPs from Ministry of Interior.
Copies of Bank Statements showing Deposits from the Respondents.
Authority to Act, signed by the Petitioners.
Each of the Petitioners claimed the sum of Kshs. 340,000/=, being the balance or the difference between the Kshs. 60,000/= that they were paid and the Kshs. 400,000/= that was allegedly paid to IDPs from other areas.
The Petitioners stated that they had not gone back to the land/property from which they had been evicted due to insecurity.
The Respondents’ Case
The Respondents opposed the Petition through the Replying Affidavit of Mr. Kepha Onyiso , a State Counsel in the office of the Attorney General who averred as follows: -
THAT following the 2007-2008 post-election violence, 663,921 individuals comprising of 295,416 households were profiled throughout the Country having been displaced from their homes.
THAT the IDPs faced different situations and needs and different solutions and approaches were undertaken for different categories of the affected people who were grouped into three main categories as follows: 70,000 IDP households comprising 350,000 individuals who agreed to voluntarily return to their farms through ''rudi nyumbani'' operation and this group was paid Kshs. 10,000/ = and others Kshs. 25,000/= for the construction of their houses that had been destroyed during the violence;
< >< >8,754 households which included 2,574 Turkana IDPs formed self-help groups that were profiled by the Ministry before the deadline that was set at 30 th December, 2008. This category was settled by the Government in Government procured land with the exception of 817 households who were paid Kshs. 400,000/= each in lieu of resettlement.
The rest of the IDPs living among the various communities in the country were paid Kshs. 10,000/= as start-up capital to enable them rebuild their lives.
THAT the IDPs faced different situations and needs, different solutions and approaches were undertaken for different categories of the affected people who were grouped into three main categories. It is therefore, understandable why different categories received different amounts of money as compensation.
THAT the Kisii IDPs were classified as integrated IDPs and those cleared for compensation were 17,385 only to whom the Government disbursed a total of Kshs. 181,200,000 to be paid as start-up capital and an additional Kshs. 8,025,000/= to be paid for construction of houses that had been burnt during violence.
THAT the claim for compensation and/or resettlement by the Petitioners coming up in Court in 2020 more than 12 years after the fateful events cannot be free from infiltration by joy riders seeking to reap from the State even though they may not have been affected by displacement.
THAT the Petitioners claim that IDPs from other regions were given better treatment by the Government is not founded on any hard evidence or substantiated.
THAT the Government''s compensation of IDPs will show that the payments were purely based on respective classifications of the IDPs which classification was rational.
THAT in any event the Government must re-authenticate the alleged list and weed out fraudsters in the unlikely event that the Court agrees with the allegations of the Petitioners.
THAT by assisting the IDPs the State merely made ex-gratia payments to the affected people without admitting liability for their alleged claims.
THAT the Petitioners have merely stated that they were IDPs who were allegedly compensated by being paid Kshs. 60,000/ = no evidence has been provided in the Petition that they actually were displaced as a result of the post-election violence of 2007-2008.
THAT even though the Government owes a duty to the citizens to protect their lives and property, the victim mentality that is being exhibited by persons or groups of people in the like of the Petitioners herein as a way of seeking Government assistance every time a calamity strikes must have its limits and time frame.
THAT the Government officially closed its register of claimants way back on 31 st December, 2008. The Petitioners have to rise up, shake off the dust and move on with their lives.
THAT where there is a difference in treatment between persons who are in comparable situations with no objective or reasonable justification then Article 27 of the Constitution may be deemed to have been breached. The Petitioners therefore, need to show first that they were displaced persons, secondly, that displaced persons under similar circumstances received compensation from the State, and thirdly that they were unfairly and unjustifiably paid lower amounts of money as compensation.
THAT the Petitioners have not proved the alleged violation.
THAT for the Petitioners to benefit from the provisions of Article 27 (4) of the Constitution, they need to demonstrate which IDPs received preferential treatment and assistance from the Government that they did not receive.
THAT there is no evidence annexed in the Petition demonstrating what was taken away from them in terms of property. The claim for compensation is just hanging without probable evidence.
At the hearing of the Petition, the Respondents’ deponent, Mr. Kepha Onyiso , adopted the contents of his Replying Affidavit as his evidence in chief. On cross examination, he confirmed the authenticity of a letter dated 5 th June 2017 from the then Permanent Secretary, Interior Ministry, Mr. Karanja Kibicho . He stated that the letter indicated that payment of Kshs. 50,000/= was to be made to each of the Nyamira IDPs.
The witness also confirmed that some IDPs were given shelter and paid Kshs. 400,000/=. He explained that the difference in the payments was informed by the difference in the circumstances faced by the different categories of IDPs.
Mr. Onyiso testified that it was not possible to generalize the IDPs. He explained that the payment of Kshs. 60,000/= made to the Nyamira and Kisii IDPs was an ex-gratia payment without admission of liability and not compensation. He further stated that some of the IDPs who volunteered to return to their farms were paid Kshs. 10,000/= while those who settled in government procured land were paid Kshs. 400,000/=.
He stated that the IDPs living within communities were paid Kshs. 100,000/=. He further explained that the payments were made based on the information that the IDPs gave to the government at the time of their vetting. He added that payments were made after proper vetting of the IDPs by the vetting committees at the District or County levels.
He confirmed that 17,385 IDPs were cleared from Nyamira and Kisii and that the government disbursed money to be paid to them on ex-gratia basis as start-up capital to enable them rebuild their lives.
He explained that the Petitioners were not discriminated as there were IDPs from Nyanza and Western who were not given land.
He testified that the PEV involved displacement, deaths and loss of property and that the vetting committee established the circumstances of each IDP.
At the close of the hearing, parties filed and exchanged their respective written submissions which I have considered.
The Petitioners’ Submissions
The Petitioners identified the following issues for this court’s determination: - Whether the Petitioners are internally displaced persons as a result of the 2007/2008 election related violence.
Whether other internally displaced persons in comparable situations received commensurate compensation from the Respondents.
Whether there was justifiable rationale in according internally displaced persons from Kisii and Nyamira lesser compensation amounting to Kshs. 60,000 compared to those from other jurisdictions who received Kshs. 200,000 and Kshs. 400,000 in addition to 2 ½ acres of land.
What is the appropriate compensation?
Who should bear the costs of this petition?
On whether the Petitioners are IDPs as a result of the 2007/2008 election related violence, it was submitted that the Petitioners were duly vetted, issued with identity cards in the form of bank accounts certificates and confirmed to be internally displaced persons when they were paid Kshs. 60,000 which the Respondents declared to be ex-gratia payment.
On whether other internally displaced persons in comparable situations received commensurate compensation from the Respondents, the Petitioners submitted that the ex gratia payments made to the Petitioners should have applied to across the board to all the IDPs and not only to the Petitioners. The Petitioners drew the court’s attention to the lists that they had produced during the hearing which contained the names of IDPs who were paid Kshs. 200,000, Kshs. 400,000 and a list of government procured farms for settlement of internally displaced persons.
The Petitioners contended that the Respondents did not provide a justified criteria on why they were paid Kshs. 60,000 and not 400,000. They referred to the Legal Notice No. 56 of 2012 that established the National Consultative Coordination Committee for the Internally Displaced Persons and submitted that the said committee did not table its report to confirm the criteria it used in awarding the Petitioners Kshs. 60,000.
It was submitted that the Petitioners were discriminated by the Respondents in the implementation of the resettlement program and that the funds paid to the Petitioners did not fully address their plight as they were displaced from their farms and their property destroyed. Reference was made to the case of Peter K. Waweru v Republic [2006] eKLR where it was held: -
“affording different treatment to different persons attribute wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby person of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”
On the alleged violation of rights and fundamental freedoms the Petitioners submitted that the 18,262 registered internally displaced persons within Nyamira and Kisii Counties were not resettled in accordance with the government’s programme. The Petitioners argued that they were left out of the resettlement programme for no apparent reason. They submitted that the Respondents’ action of excluding and discriminating as against them was not only illegal and unlawful but also contrary to the dictates of the Constitution. They added that they legitimately expected all the IDP''s to be treated equally irrespective of where they came from.
It was submitted that the intentions and processes undertaken by the respondents smacked of malice and violated the Petitioners rights under Article 40 as read with Article 27 of the Constitution and Section 107 of the Land Act 2012.
The Petitioners submitted that despite the fact that they were subjected to the vetting process conducted by the Respondents’ agents they were discriminated against during compensation in violation of Article 27 of the Constitution.
The Petitioners'' argued that failure by the Government to compensate them according to the Legal Notice No. 11 of 2008 was in itself discriminatory, actuated by malice and a violation of the Constitution.
They added that failure by the Respondents to protect the lives of their loved ones was a total violation of their constitutional rights under Article 29 of the Constitution.
On the appropriate compensation payable to the Petitioners, reference was made to several decisions including the case of Dendy vs. University of Witwatersrand, Johannesburg & Others (2006) 1 LRC 291 where the Constitutional Court of South Africa held that: -
“The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases.
….” The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.”
It was submitted that the list of IDPs from other regions who were paid Kshs. 200,000 and 400,000 indicates that they came from the Kalenjin ethnic community thus pointing to the fact that the Petitioners were discriminated on account of ethnic or social origin and language. The Petitioners argued that the fact that the Respondents, as the custodians of the payment register, were better placed to give the exact amounts that were paid to the IDPs.
It was the Petitioners’ case that they had disclosed a reasonable cause of action to warrant the granting of the orders sought in the Petition.
The Respondents’ Submissions
The Respondents, on the other hand, submitted that the Petitioners had not demonstrated how their Constitutional rights were violated and the harm occasioned to them as a result of the alleged violation.
The Respondents submitted that the Petitioners confused and/or failed to appreciate that the Kshs. 60, 000/= paid to them was an ex-gratia payment and not an admission of liability. They faulted the Petitioners for failing to plead their case with precision.
On the alleged violation of Article 27 and 40 of the Constitution, the Respondents submitted that the same cannot be sustained as most of the Petitioners claimed that they had lost a lot of properties, but on cross examination, did not give any satisfactory explanation on why they did not see the need to go back to their land, or better still sell and/or dispose of the property. The Respondents cited the decision in the case of John Kiplangat Barbet & 3 Others vs. Attorney General 74 Others [20131eKLR, where the court relied on the definition of discrimination given by the Committee of ''the International Convention on Civil and Political Rights'' in the General Comment 18, Non-discrimination (Thirty- seventh session 1989) where the term discrimination was defined to imply: -
"Any distinction, exclusion, restriction, or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status and which has the purpose or effect of multiplying or impairing the recognition, enjoyment or exercise by all persons, on equal footing of all rights and freedoms"
The Respondents submitted that where there is a difference in treatment between persons who are in comparable situations which has no objective or reasonable justification then Article 27 of the Constitution may be deemed to have been breached. They argued that the Petitioners were therefore required to show first; that they were displaced persons, secondly; that displaced persons under similar circumstances received compensation from the State, and thirdly; that they were unfairly and unjustifiably paid lower amounts of money as compensation. According to the Respondents, the Petitioners failed to demonstrate the aforesaid requirements.
It was submitted that since Internally Displaced Persons faced different situations, circumstances and needs, different solutions and approaches were undertaken for different categories of the affected people from different parts of the Country. The Respondents maintained that it was therefore understandable when different categories of IDPs received different amounts of money as ex-gratia payments and not compensation because there was no admission of liability.
On discrimination, the Respondents submitted that, for one to benefit from the provisions of Article 27 (4) of the Constitution, he or she needs to demonstrate which IDPs received preferential treatment and assistance from the Government that he or she did not receive. They reiterated that the Government has never admitted liability for what happened in 2007/2008 and that all the Government did was to help people to recover from the unfortunate events of 2007/2008. Reference was made to the decision in the case of Patron Internally Displaced Persons & Kisii >> [>><><><>“><>”<><>><>>[>, ><><><>“><><>><><>><>><>>>><> Issues for Determination
Parties had, prior to the commencement of the hearing, agreed on the issues falling for the court’s determination as follows: - Whether payment of Kshs. 60,000/= to 18,261 persons, was an admission of liability or a token from the Government of Kenya to the petitioners.
Whether the Government is liable to pay to the Petitioners Kshs. 340,000/= as compensation, as compared to other IDPs from other parts of Kenya, which were affected.
Whether the criteria used in compensating the petitioners was discriminatory or selective in its very nature.
Whether the Government had a duty to compensate the petitioners in the first place.
Analysis and Determination
I have carefully considered the pleadings filed herein, the oral evidence presented by the parties’ respective witnesses alongside the parties’ written submissions. I find that the main issues for my determination are as follows: -
Whether the petitioners proved, with the required precision and evidence, that they are IDPs of the 2007/2008 PEV and proper parties to this claim.
Whether the Petition meets the threshold set for constitutional petitions.
Whether the petitioners demonstrated differential treatment vis-à-vis comparable IDPs and, if so, whether such differentiation was discriminatory contrary to Article 27 of the Constitution.
Whether the respondents violated the petitioners’ rights under Articles 28, 29, 35, 43 and 47 of the Constitution.
Whether the reliefs sought (equalisation to Kshs. 400,000 per petitioner, land allocation, general damages and ancillary orders) are merited.
Costs.
Proof of IDP status and standing
The petitioners called 50 witnesses who produced their identification, bank details and Kenya Commercial Bank statements showing deposits of Kshs. 60,000. The witnes
[...truncated]
The 18,262 Petitioners herein are adults of sound minds who claim that they were affected by the 2007/2008 Post Election Violence (PEV). They describe themselves as Internally Displaced Persons (IDPs) from Nyamira County.
The 1 st Respondent is the Principal Secretary in charge of State Department of Planning in Ministry of Devolution and Planning. The Petitioners state that all the IDPS resettlement programs fall under this Ministry.
The 2 nd Respondent is the Principal Secretary in charge of State Department for Interior under which the National Consultative Committee on Internally Displaced Persons (NCCC) falls.
The 3 rd Respondent is the Principal Legal Advisor of the government of the Republic of Kenya.
The Petitioners’ Case
Through a Petition dated 14 th December 2020 and amended on 22 nd February 2023, the Petitioners sued the Respondents seeking the following orders: -
A Declaration that the respondents’ payment of Kshs. 60,000/= (Sixty Thousand Only) to the vetted internally displaced persons from Nyamira as against the Kshs. 400,000/= (Four Hundred Thousand Only) paid to other internally displaced persons in other jurisdictions within Kenya is discriminatory, illegal, malicious and unconstitutional.
An order that the petitioners be paid Kshs. 400,000 each less Kshs. 60,000/= (Sixty Thousand Only) as compensation in tandem with all other jurisdictions within the Republic of Kenya.
A declaration that the persons whose names are filed herein on whose behalf this petition has been brought are genuine integrated Internally Displaced Persons who are entitled to full compensation but have not yet been compensated and that their rights guaranteed under Article 27, 28, 29, 43 and 47 of the Constitution have been violated by the respondent.
An order that the respondents do pay general damages to the petitioners for violating their rights.
Costs of this petition.
Any other relief this court deems fit to grant.
A summary of the Petitioners’ case was that they had migrated from their original ancestral homes and settled in parts of the Rift Valley and Nyanza Provinces prior to the disputed 2007 general elections. They state that following the said disputed elections, violence erupted within the Republic of Kenya as a result of which they were violently evicted from the Rift Valley and other areas where they had settled thereby resulting in loss of their homes, properties and belongings.
The Petitioners claim that following the restoration of peace in the country, the government initiated the resettlement of IDPs by offering them monetary support to enable them rebuild their lives. They state that in some instances, IDPs were offered parcels of land to build their shelters and to some extent, houses were to be built for them.
The Petitioners averred that through Legal Notice No. 11 of 2008, a board christened National Humanitarian Fund Board was formed and mandated to resettle Post Election Victims (PEVs) including the Petitioners herein.
They averred that the government’s resettlement program was to provide assistance to the IDPs in the following terms: -
Kshs. 10,000 for startup and reconstruction of burnt up or destroyed houses.
Kshs. 25,000 for reconstruction of basic housing to internally displaced persons whose hoses were burnt or destroyed, and
Land measuring 2 ¼ acres to each family displaced by the violence.
The Petitioners state that out of the Respondents discriminated against them and did not resettle them in accordance with the program as they were only paid the sum of Kshs. 60,000 while IDPs from other regions were paid Kshs. 400,000 and given land on which to build their homes.
The Petitioners listed the particulars of discrimination and/or malice as follows: -
Failing to compensate the petitioners Internally Displaced persons in accordance with Legal Notice No. 11 of 2008.
Discriminating the petitioners internally displaced persons herein in terms of failing to compensate them as other IDPs from various jurisdictions within the Republic of Kenya.
Failing to honour the provisions of Legal Notice No. 11 of 2008.
Taking inordinately long to compensate with the payment stretching to as late as the year 2020.
Keeping their spirit high for over 10 years without the desired compensation. Whereas other Internally Displaced persons were long compensated and/or resettled.
The Petitioners averred that the criteria used by the Respondents to compensate the Petitioners was wrought with confusion, lack of transparency thereby delivering sinister or unclear intention on the part of the Respondents as the bodies tasked with issues relating to IDPs. They stated that processes attendant thereto and the overtures on the part of the Respondents do not meet the constitutional criteria of non-discrimination on the basis enumerated by Article 27 of the Constitution.
The Petitioners further averred that they made several attempts to follow up the matter with the Respondents to no avail. They state that the Respondents’ actions have condemned them to continue living in deplorable conditions and that their Constitutional rights to Equality and Freedom under Article 27 of the Constitution, their rights to dignity under Article 28 of the Constitution have been violated and continues to be violated.
They state that the Respondents’ attitude and action are bereft of legal and constitutional justification as they have ignored the due process of the law and the Petitioners’ reasonable expectation. They contend that the Law and constitutional rights available to them have been ignored in total thus rendering the entire process unconstitutional, callous, oppressive, unfair, unreasonable and untenable.
The Petitioners further averred that they are apprehensive that if the discriminatory actions of the Respondents are allowed to continue unabated, it will occasion them irreparable emotional, physical and economical loss and suffering considering that they do not have a place to call their abode and/or to do farming which was their main economic activity.
At the hearing of the Petition, the Petitioners presented the evidence of the following 50 Petitioners who, they stated, had authority to testify on behalf of the rest of the Petitioners. The 50 Petitioners were as listed here below: -
No.
Nature of Witness
Name of Witness
Date Testified
PW-1
Naftali Ogeto Aboko
14/06/2023
PW-2
Samuel Mokaya Boera
14/06/2023
PW-3
David Obondi Nyamwaye
14/06/2023
PW-4
Sporat Nyaboke Onsate
14/06/2023
PW-5
Henry Mwamba Nyagaka
14/06/2023
PW-6
Joseph Bosire Ombuse
14/06/2023
PW-7
Simion Atandi
13/06/2023
PW-8
John Agima
13/06/2023
PW-9
Daniel Okemwa
12/06/2023
PW-10
Samuel Oyaro
12/06/2023
PW-11
Batiseba
12/06/2023
PW-12
Isaack Mosigisi
12/06/2023
PW-13
Alice Kwamboka
12/06/2023
PW-14
Justus Ongera Momanyi
12/06/2023
PW-15
Callen Kemunto Bosco
12/06/2023
PW-16
Charles Chacha Masiba
12/06/2023
PW-17
James Rori
12/06/2023
PW-18
Daniel Ongwae
12/06/2023
PW-19
Alloys Ocharo Momanyi
18/12/2023
PW-20
Josphine Moraa Nyang’au
18/12/2023
PW-21
Joseph Misesi Zakayo
18/12/2023
PW-22
Christopher Nyabuto George
18/12/2023
PW-23
Dennis Nyabuto Ounga
18/12/2023
PW-24
Veronica Nyarisa Mokua
18/12/2023
PW-25
James Agwata Nyachiro
18/12/2023
PW-26
Ronald Mobisa Omari
18/12/2023
PW-27
Haron Nyaboga Bwounga
18/12/2023
PW-28
Thomas Aberi Nyareru
18/12/2023
PW-29
Thomson Omagwa Change
18/12/2023
PW-30
Joseph Ochawangi Osoro
18/12/2023
PW-31
Daniel Mikae Nyakongo
18/12/2023
PW-32
Joseph Seme Mogambi
18/12/2023
PW-33
Zachariah Kennedy Keoro
18/12/2023
PW-34
Kennedy Onganyi Moseti
08/04/2024
PW-35
Mary Nyakerario Anyega
08/04/2024
PW-36
Askah Kwamboka Omari
08/04/2024
PW-37
Peter Oganga Makori
08/04/2024
PW-38
Hyline Kwamboka Osiaro
08/04/2024
PW-39
John Ogero Mogambi
08/04/2024
PW-40
Damaris Kwamboka Orina
08/04/2024
PW-41
Veronica Nyangarisa Mokua
08/04/2024
PW-42
Rudia Kemuma Masese
08/04/2024
PW-43
Jane Pamela Onduko
08/04/2024
PW-44
Ernest Mbaka Makori
08/04/2024
PW-45
John Masese Moiruruki
08/04/2024
PW-46
Zakayo Obwaru
08/04/2024
PW-47
Haron Nyaboga Bwounga
08/04/2024
PW-48
Annah Angima
08/04/2024
PW-49
Paul Masese Omari
08/04/2024
PW-50
Doris Nyanchera Masese
29/05/2024
A summary of the Petitioners’ witnesses’ testimonies, as presented by 50 witnesses and as is contained in their respective witness statements was that they had, prior to the year 2007/2008, migrated from Nyamira County and settled in parts of Rift Valley and Nyanza provinces where they lived and carried on businesses. They stated that following the PEV of 2007/2008, they were forcefully evicted from the homes/areas where they had settled for many years as a result of which they suffered loss of businesses, land and other property.
The Petitioners testified that following the PEV, the Kenyan government vetted the victims and paid those who were found to be genuine IDPs the sum of Kshs. 60,000. They stated that the said amount was deposited in their respective bank accounts held at Kenya Commercial Bank after which they were told to await more payment which was however not made thereby triggering the filing of the instant petition.
The Petitioners testified that they had information that IDPs from other regions were paid Kshs, 400,000 as compensation yet no reasons or explanation was given to them as to why they were discriminated during such payment and not given the land that the Respondents had promised them. It was the Petitioners’ case that all PEV victims should have been given equal treatment without any form of discrimination whatsoever.
The Petitioners therefore claimed for the payment of the balance of Kshs. 340,000 and contended while IDPs from other areas like Nakuru were compensated through payment of the sum of Kshs. 400,000/= each, they were only paid Kshs. 60,000/=. They argued that the difference in the payments made to them and those made to other IDPs amounted to discrimination thus violating the provisions of the Constitution, to wit , Articles 27, 28, 29, 40, 47, 50, 258 and 259 thereof.
The Petitioners testified that they did not sign any documents or contracts to signify or confirm the payments that were due to them or that they had received. They also confirmed that the IDPs register was closed on 31 st December 2008 and that the instant Petition was filed in 2020.
They stated that the government (the Respondents) promised to buy them land like other IDPs but that the promise was not fulfilled.
They faulted the Respondents for failing to provide them with security thereby resulting in the misfortune that befell them following the Post-Election Violence that led to their eviction from their homes.
The Petitioners produced the following documents as exhibits: - Identity Cards and Bank Account details of all petitioners.
Legal Notice No. 11 of 2008.
List of IDPs in this case.
List of Government Procured Farms for Settlement of IDPs.
List of IDPs who were paid Kshs. 200,000/= and Kshs. 400,000/= respectively.
Demand Letter dated 4 th February 2020.
A Letter from the Attorney General dated 6 th February 2020.
Extract from Public Finance Management Regulations, 2017.
Executive Summary of progress regarding resettlement of IDPs from Ministry of Interior.
Copies of Bank Statements showing Deposits from the Respondents.
Authority to Act, signed by the Petitioners.
Each of the Petitioners claimed the sum of Kshs. 340,000/=, being the balance or the difference between the Kshs. 60,000/= that they were paid and the Kshs. 400,000/= that was allegedly paid to IDPs from other areas.
The Petitioners stated that they had not gone back to the land/property from which they had been evicted due to insecurity.
The Respondents’ Case
The Respondents opposed the Petition through the Replying Affidavit of Mr. Kepha Onyiso , a State Counsel in the office of the Attorney General who averred as follows: -
THAT following the 2007-2008 post-election violence, 663,921 individuals comprising of 295,416 households were profiled throughout the Country having been displaced from their homes.
THAT the IDPs faced different situations and needs and different solutions and approaches were undertaken for different categories of the affected people who were grouped into three main categories as follows: 70,000 IDP households comprising 350,000 individuals who agreed to voluntarily return to their farms through ''rudi nyumbani'' operation and this group was paid Kshs. 10,000/ = and others Kshs. 25,000/= for the construction of their houses that had been destroyed during the violence;
< >< >8,754 households which included 2,574 Turkana IDPs formed self-help groups that were profiled by the Ministry before the deadline that was set at 30 th December, 2008. This category was settled by the Government in Government procured land with the exception of 817 households who were paid Kshs. 400,000/= each in lieu of resettlement.
The rest of the IDPs living among the various communities in the country were paid Kshs. 10,000/= as start-up capital to enable them rebuild their lives.
THAT the IDPs faced different situations and needs, different solutions and approaches were undertaken for different categories of the affected people who were grouped into three main categories. It is therefore, understandable why different categories received different amounts of money as compensation.
THAT the Kisii IDPs were classified as integrated IDPs and those cleared for compensation were 17,385 only to whom the Government disbursed a total of Kshs. 181,200,000 to be paid as start-up capital and an additional Kshs. 8,025,000/= to be paid for construction of houses that had been burnt during violence.
THAT the claim for compensation and/or resettlement by the Petitioners coming up in Court in 2020 more than 12 years after the fateful events cannot be free from infiltration by joy riders seeking to reap from the State even though they may not have been affected by displacement.
THAT the Petitioners claim that IDPs from other regions were given better treatment by the Government is not founded on any hard evidence or substantiated.
THAT the Government''s compensation of IDPs will show that the payments were purely based on respective classifications of the IDPs which classification was rational.
THAT in any event the Government must re-authenticate the alleged list and weed out fraudsters in the unlikely event that the Court agrees with the allegations of the Petitioners.
THAT by assisting the IDPs the State merely made ex-gratia payments to the affected people without admitting liability for their alleged claims.
THAT the Petitioners have merely stated that they were IDPs who were allegedly compensated by being paid Kshs. 60,000/ = no evidence has been provided in the Petition that they actually were displaced as a result of the post-election violence of 2007-2008.
THAT even though the Government owes a duty to the citizens to protect their lives and property, the victim mentality that is being exhibited by persons or groups of people in the like of the Petitioners herein as a way of seeking Government assistance every time a calamity strikes must have its limits and time frame.
THAT the Government officially closed its register of claimants way back on 31 st December, 2008. The Petitioners have to rise up, shake off the dust and move on with their lives.
THAT where there is a difference in treatment between persons who are in comparable situations with no objective or reasonable justification then Article 27 of the Constitution may be deemed to have been breached. The Petitioners therefore, need to show first that they were displaced persons, secondly, that displaced persons under similar circumstances received compensation from the State, and thirdly that they were unfairly and unjustifiably paid lower amounts of money as compensation.
THAT the Petitioners have not proved the alleged violation.
THAT for the Petitioners to benefit from the provisions of Article 27 (4) of the Constitution, they need to demonstrate which IDPs received preferential treatment and assistance from the Government that they did not receive.
THAT there is no evidence annexed in the Petition demonstrating what was taken away from them in terms of property. The claim for compensation is just hanging without probable evidence.
At the hearing of the Petition, the Respondents’ deponent, Mr. Kepha Onyiso , adopted the contents of his Replying Affidavit as his evidence in chief. On cross examination, he confirmed the authenticity of a letter dated 5 th June 2017 from the then Permanent Secretary, Interior Ministry, Mr. Karanja Kibicho . He stated that the letter indicated that payment of Kshs. 50,000/= was to be made to each of the Nyamira IDPs.
The witness also confirmed that some IDPs were given shelter and paid Kshs. 400,000/=. He explained that the difference in the payments was informed by the difference in the circumstances faced by the different categories of IDPs.
Mr. Onyiso testified that it was not possible to generalize the IDPs. He explained that the payment of Kshs. 60,000/= made to the Nyamira and Kisii IDPs was an ex-gratia payment without admission of liability and not compensation. He further stated that some of the IDPs who volunteered to return to their farms were paid Kshs. 10,000/= while those who settled in government procured land were paid Kshs. 400,000/=.
He stated that the IDPs living within communities were paid Kshs. 100,000/=. He further explained that the payments were made based on the information that the IDPs gave to the government at the time of their vetting. He added that payments were made after proper vetting of the IDPs by the vetting committees at the District or County levels.
He confirmed that 17,385 IDPs were cleared from Nyamira and Kisii and that the government disbursed money to be paid to them on ex-gratia basis as start-up capital to enable them rebuild their lives.
He explained that the Petitioners were not discriminated as there were IDPs from Nyanza and Western who were not given land.
He testified that the PEV involved displacement, deaths and loss of property and that the vetting committee established the circumstances of each IDP.
At the close of the hearing, parties filed and exchanged their respective written submissions which I have considered.
The Petitioners’ Submissions
The Petitioners identified the following issues for this court’s determination: - Whether the Petitioners are internally displaced persons as a result of the 2007/2008 election related violence.
Whether other internally displaced persons in comparable situations received commensurate compensation from the Respondents.
Whether there was justifiable rationale in according internally displaced persons from Kisii and Nyamira lesser compensation amounting to Kshs. 60,000 compared to those from other jurisdictions who received Kshs. 200,000 and Kshs. 400,000 in addition to 2 ½ acres of land.
What is the appropriate compensation?
Who should bear the costs of this petition?
On whether the Petitioners are IDPs as a result of the 2007/2008 election related violence, it was submitted that the Petitioners were duly vetted, issued with identity cards in the form of bank accounts certificates and confirmed to be internally displaced persons when they were paid Kshs. 60,000 which the Respondents declared to be ex-gratia payment.
On whether other internally displaced persons in comparable situations received commensurate compensation from the Respondents, the Petitioners submitted that the ex gratia payments made to the Petitioners should have applied to across the board to all the IDPs and not only to the Petitioners. The Petitioners drew the court’s attention to the lists that they had produced during the hearing which contained the names of IDPs who were paid Kshs. 200,000, Kshs. 400,000 and a list of government procured farms for settlement of internally displaced persons.
The Petitioners contended that the Respondents did not provide a justified criteria on why they were paid Kshs. 60,000 and not 400,000. They referred to the Legal Notice No. 56 of 2012 that established the National Consultative Coordination Committee for the Internally Displaced Persons and submitted that the said committee did not table its report to confirm the criteria it used in awarding the Petitioners Kshs. 60,000.
It was submitted that the Petitioners were discriminated by the Respondents in the implementation of the resettlement program and that the funds paid to the Petitioners did not fully address their plight as they were displaced from their farms and their property destroyed. Reference was made to the case of Peter K. Waweru v Republic [2006] eKLR where it was held: -
“affording different treatment to different persons attribute wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby person of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”
On the alleged violation of rights and fundamental freedoms the Petitioners submitted that the 18,262 registered internally displaced persons within Nyamira and Kisii Counties were not resettled in accordance with the government’s programme. The Petitioners argued that they were left out of the resettlement programme for no apparent reason. They submitted that the Respondents’ action of excluding and discriminating as against them was not only illegal and unlawful but also contrary to the dictates of the Constitution. They added that they legitimately expected all the IDP''s to be treated equally irrespective of where they came from.
It was submitted that the intentions and processes undertaken by the respondents smacked of malice and violated the Petitioners rights under Article 40 as read with Article 27 of the Constitution and Section 107 of the Land Act 2012.
The Petitioners submitted that despite the fact that they were subjected to the vetting process conducted by the Respondents’ agents they were discriminated against during compensation in violation of Article 27 of the Constitution.
The Petitioners'' argued that failure by the Government to compensate them according to the Legal Notice No. 11 of 2008 was in itself discriminatory, actuated by malice and a violation of the Constitution.
They added that failure by the Respondents to protect the lives of their loved ones was a total violation of their constitutional rights under Article 29 of the Constitution.
On the appropriate compensation payable to the Petitioners, reference was made to several decisions including the case of Dendy vs. University of Witwatersrand, Johannesburg & Others (2006) 1 LRC 291 where the Constitutional Court of South Africa held that: -
“The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases.
….” The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.”
It was submitted that the list of IDPs from other regions who were paid Kshs. 200,000 and 400,000 indicates that they came from the Kalenjin ethnic community thus pointing to the fact that the Petitioners were discriminated on account of ethnic or social origin and language. The Petitioners argued that the fact that the Respondents, as the custodians of the payment register, were better placed to give the exact amounts that were paid to the IDPs.
It was the Petitioners’ case that they had disclosed a reasonable cause of action to warrant the granting of the orders sought in the Petition.
The Respondents’ Submissions
The Respondents, on the other hand, submitted that the Petitioners had not demonstrated how their Constitutional rights were violated and the harm occasioned to them as a result of the alleged violation.
The Respondents submitted that the Petitioners confused and/or failed to appreciate that the Kshs. 60, 000/= paid to them was an ex-gratia payment and not an admission of liability. They faulted the Petitioners for failing to plead their case with precision.
On the alleged violation of Article 27 and 40 of the Constitution, the Respondents submitted that the same cannot be sustained as most of the Petitioners claimed that they had lost a lot of properties, but on cross examination, did not give any satisfactory explanation on why they did not see the need to go back to their land, or better still sell and/or dispose of the property. The Respondents cited the decision in the case of John Kiplangat Barbet & 3 Others vs. Attorney General 74 Others [20131eKLR, where the court relied on the definition of discrimination given by the Committee of ''the International Convention on Civil and Political Rights'' in the General Comment 18, Non-discrimination (Thirty- seventh session 1989) where the term discrimination was defined to imply: -
"Any distinction, exclusion, restriction, or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status and which has the purpose or effect of multiplying or impairing the recognition, enjoyment or exercise by all persons, on equal footing of all rights and freedoms"
The Respondents submitted that where there is a difference in treatment between persons who are in comparable situations which has no objective or reasonable justification then Article 27 of the Constitution may be deemed to have been breached. They argued that the Petitioners were therefore required to show first; that they were displaced persons, secondly; that displaced persons under similar circumstances received compensation from the State, and thirdly; that they were unfairly and unjustifiably paid lower amounts of money as compensation. According to the Respondents, the Petitioners failed to demonstrate the aforesaid requirements.
It was submitted that since Internally Displaced Persons faced different situations, circumstances and needs, different solutions and approaches were undertaken for different categories of the affected people from different parts of the Country. The Respondents maintained that it was therefore understandable when different categories of IDPs received different amounts of money as ex-gratia payments and not compensation because there was no admission of liability.
On discrimination, the Respondents submitted that, for one to benefit from the provisions of Article 27 (4) of the Constitution, he or she needs to demonstrate which IDPs received preferential treatment and assistance from the Government that he or she did not receive. They reiterated that the Government has never admitted liability for what happened in 2007/2008 and that all the Government did was to help people to recover from the unfortunate events of 2007/2008. Reference was made to the decision in the case of Patron Internally Displaced Persons & Kisii >> [>><><><>“><>”<><>><>>[>, ><><><>“><><>><><>><>><>>>><> Issues for Determination
Parties had, prior to the commencement of the hearing, agreed on the issues falling for the court’s determination as follows: - Whether payment of Kshs. 60,000/= to 18,261 persons, was an admission of liability or a token from the Government of Kenya to the petitioners.
Whether the Government is liable to pay to the Petitioners Kshs. 340,000/= as compensation, as compared to other IDPs from other parts of Kenya, which were affected.
Whether the criteria used in compensating the petitioners was discriminatory or selective in its very nature.
Whether the Government had a duty to compensate the petitioners in the first place.
Analysis and Determination
I have carefully considered the pleadings filed herein, the oral evidence presented by the parties’ respective witnesses alongside the parties’ written submissions. I find that the main issues for my determination are as follows: -
Whether the petitioners proved, with the required precision and evidence, that they are IDPs of the 2007/2008 PEV and proper parties to this claim.
Whether the Petition meets the threshold set for constitutional petitions.
Whether the petitioners demonstrated differential treatment vis-à-vis comparable IDPs and, if so, whether such differentiation was discriminatory contrary to Article 27 of the Constitution.
Whether the respondents violated the petitioners’ rights under Articles 28, 29, 35, 43 and 47 of the Constitution.
Whether the reliefs sought (equalisation to Kshs. 400,000 per petitioner, land allocation, general damages and ancillary orders) are merited.
Costs.
Proof of IDP status and standing
The petitioners called 50 witnesses who produced their identification, bank details and Kenya Commercial Bank statements showing deposits of Kshs. 60,000. The witnes
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