Kisumu Nubian Community wins court case

The Nubian community whose houses were demolished and more than 3000 households evicted from their homes in Kibos, Kisumu last year have won the case they filed before the Environment and Land Court.

The case generated a lot of excitement and prayers among the entire community who have been living in makeshift tents and relied on well-wishers to feed them declared that justice had been served.

The Environment and Land court case presiding judge, Justice Antony Ombwayo declared in his ruling that the petition is dismissed with costs and further emphasized that the petitioners are at liberty to file another civil suit for damages.

Justice Ombwayo argued that the demolition taken by Kenya Railways Corporation was not only illegal but also went against fundamental human rights and advised the petitioners to file another suit for compensation.

“However, the petitioners ought to file a separate suit for compensation of damages for this cannot be ascertained in terms of cash as per the petition before this court,” stated Justice Ombwayo.

The judge also said that the matter before him demonstrated that it was the petitioner’s right to file a separate suit to seek release of compensation commensurate to damages as determined by relevant authorities.

He said the petitioners who are members of the Nubian community should be free from discrimination and that the respondents, KRC, are fully responsible for compensating the victims for the losses they suffered during demolitions.

He pointed out that the respondents had not convinced the court that if the stay was declined, they would suffer any loss or damages.

“I decline to grant an order of stay from filing a suit by petitioners, moreover, respondents have not demonstrated that they would suffer substantial loss if any in case stay not granted,” he argued.

However, the court did not mention the amount the petitioners can be awarded in terms of compensation as the court was not in a position to determine the exact amount after taxation.

Dr. Nicholas Orago, counsel for the Nubian community on behalf of Hakii Jamii, Kenya National Commission on Human Rights, and Kisumu Muslim Association said that it was unfortunate that Kenya Railways and the government through the National Police Service has disobeyed the court orders and went ahead to destroy homes of the Nubian community at night.

Dr. Orago observed that it was unfortunate February 5, 2021, saw the community suffer serious consequences as the three organizations descended on Kibos at night and proceeded to demolish their homes without caring about children, the elderly, and people with disabilities apart from destroying property.

He pointed out that on August 21, 2021, the court ruled in the community’s favour and declared the demolitions unlawful and a violation of fundamental human rights.

It further affirmed that the community was living on their land and were to continue staying there uninterrupted apart from declaring that the residents were to be compensated for losses.

Dr. Orago also stated that Kenya Railways had applied for a stay of implementation of the judgment pending the determination of an appeal that has not been filed. Orago lauded the court for granting them their rights and ensuring that justice was served.

This means Kenya Railways Corporation will have to cater for the expenses of the court proceedings in case the matter is determined in favour of the Nubian community.

“The court has allowed us to file the case arguing that it was our inherent right to file a civil suit before the court for compensation,” he clarified.

The advocate exuded confidence that the court would grant them victory in the civil case to enable the community to be compensated accordingly.

Counsel Joshua Nyamori for the Nubian community argued on behalf of Kituo Cha Sheria but they were grateful to the judge for the bold decision which was in favour of his clients since the beginning of the case.

Fatuma Khamis Bilal, the first petitioner, could not hide her pride and appreciation for the legal team for the great effort they put to ensure the success of the case.

Bilal singled out counsels from Haki Jamii, Kituo Cha Sheria, The Muslim Association, and all those who stood with them during the court process.

Bilal appealed to the National and County governments to intervene so as to facilitate the resettlement of the displaced Nubian community members.

“We request the county and national government to realize that since we were evicted, majority of us continue suffering, living in tents under squalid conditions and so we deserve to lead a safe life together with our families and our children to continue with their education which was rudely disrupted and normal life like everybody else,” she said.

Her neighbor Abdulrahman Mohammed, said that he was grateful to Allah for the victory after the protracted legal battle.

Mohammed appealed to Kisumu County governor, Prof. Anyang’ Nyong’o to intervene as he promised, adding that the governor and his team visited them after the demolitions, and promised to act in vain. “ They promised to get title deeds within two weeks last  year has not yet been fulfilled”, he said.