The government has suffered a major setback after the High Court declined to dismiss a lawsuit by former MP Hassan Aden Osman's nephew seeking compensation over illegal detention and eviction from his uncle's property in Kileleshwa, Nairobi.
Justice Lawrence Mugambi rejected a plea by Kenya Railways Corporation Managing Director Philip Mainga, Attorney General Justin Muturi, and Inspector General of Police and DPP to have the petition by Aden's kin Adan Issak Hassan thrown out.
The Judge found that the Constitutional and Human Rights Court has jurisdiction to hear and determine the petition by Hassan as it raises serious issues relating to the Bill of Rights, accountability, and impartiality by those charged with the enforcement of the law.
"The petition raises constitutional questions, the assertion that the petition is an abuse of the process of the court is unsustainable. This court must assume jurisdiction and determine the issues raised in the petition. I thus find that the preliminary objection lacks merit and is hereby dismissed," he ruled.
Justice Mugambi said that Hassan had sufficiently set out details showing how on March 10, 2023 security officers raided his uncle's home in Kileleshwa and allegedly violated his rights when they arrested and detained him without any justifiable reason.
"The court has to determine if the arrest and detention were in line with principles set out in Articles 29, 49, 50, and 51 of the Constitution. The respondents will be required to demonstrate the lawfulness of the conduct or detention," he said.
Hassan moved to the High Court on March 13, 2023, accusing the police of violating his rights when they arrested him as they sought to evict the MP and his family in a land tussle with the Kenya Railways.
"I was arrested and detained to camouflage and achieve the objective of effecting eviction from property I had occupied through my uncle who had secured a court order restraining the respondents from carrying out the eviction," he told the Judge
In the course of that arrest, his property was seized by Kenya Railways.
However, the Kenya Railways boss Mainga, Attorney General Muturi, IG, and DPP filed a preliminary objection arguing that the petition by Hassan does not meet the threshold of a constitutional petition.
"No constitutional issues are discernible in the entire petition to warrant admission and adjudication by this court. The petition is vexatious and an abuse of court process and ought to be struck out," the AG told the court.
Hassan vehemently opposed the attempt by the state to have his case thrown out saying the move would deny him a fair hearing for violation of his constitutional rights.
He stated that it is the court’s mandate under Articles 22, 23, and 165 of the Constitution to safeguard his constitutional rights.
Aden and his kin indicated that they had lived in the property for years and their lease expired in 2021 and they renewed it for six years.
The former MP said that in October 2022, Kenya Railways served him with a notice of termination of lease.
"The organisation, in the review of its functions, desires to utilise the demised property for its own use," the eviction notice read in part.
The corporation threatened to invoke clause number 3 (c) of his expired tenancy agreement by giving him one month's notice to vacate the property.
Aden and Hassan term the move to evict them and their family unlawful and illegal. The duo further decried harassment, arguing that the eviction was politically instigated.
Hassan reads malice in the eviction alleging a plot to grab the land.
