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ELCDismissedNot stated in judgment (Notice of Motion dated 22nd May 2019 within a petition)· [2019] KEELC 1674 (KLR)

Hellen Muthoni Kabengi & 20 others v Municipal Manager, Isiolo Municipality & 2 others ; Centre tor Youth Linkages & Empowerment Programmes & another (Interested Parties) [2019] KEELC 1674 (KLR)

Environment and Land Court
25 September 2019
2,628 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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An Isiolo court refused to stop kiosk demolitions, ruling the traders' unexecuted MOU and licence-level interests could not outweigh a major public road project.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) on a Notice of Motion dated 22nd May 2019 in which 21 petitioners sought conservatory orders restraining the respondents from demolishing kiosks or evicting them from 250 Modern Entrepreneurial Market Stalls in Isiolo Town CBD pending the hearing of their petition. The kiosks were said to have been erected in 2016 under an MOU between the 1st interested party and the 2nd respondent on a Build Operate Transfer model. The petitioners relied on two allegedly conflicting eviction notices and alleged unlawful, discriminatory and non-participatory processes. The respondents opposed through their own notice of motion dated 17th June 2019, contending that public participation was conducted, the project was World Bank-funded to the tune of Kshs. 93 Million with a six-month completion requirement, and lawful kiosk owners would be relocated. Applying the Gatirau Peter Munya and Kenya Small Scale Farmers Forum principles, the court found the purported MOU unexecuted and unsigned, that the petitioners did not erect the kiosks and held no leases, leaving them only licence-level interests; that no authority existed to represent the 250 kiosk owners; that public participation was demonstrated by radio invoices, minutes and photographs; and that public interest in the county-wide road project outweighed private interests. The application dated 22nd May 2019 was dismissed, the temporary conservatory orders discharged, the respondents' application marked spent, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the petitioners established a prima facie case warranting conservatory orders

Holding

No prima facie case was established; the purported MOU was unexecuted, the petitioners did not erect the kiosks, held no leases, and their rights were limited to a licence

Reasoning

The court perused the MOU said to underpin the kiosk project and found it unexecuted and unsigned by any party, so it could not anchor the petitioners' rights. The kiosks were not put up by the petitioners and they obtained no leases, confining their interest to a licence. Further, of the 250 kiosk owners on whose behalf orders were sought, only 21 were petitioners, with no written authority under Order 1 Rule 13 of the Civil Procedure Rules to represent the rest.

p. 4
02

Whether the notices and the public participation process were lawful and constitutional

Holding

The material showed there was public participation; the 24-hour notice related only to illegal constructions while lawful kiosk owners were to be relocated

Reasoning

The respondents produced radio station invoices for public awareness talk shows, minutes of a stakeholders' meeting at the Grade Hotel including market officials, and photographs. Relying on the Oshwal Community authority, the court held individual consultation is unnecessary. The two notices were not conflicting: one targeted illegal structures and the other provided for relocation of kiosk owners.

p. 4
03

Whether public interest favours the grant of conservatory orders

Holding

Public interest outweighed the individual interests of the petitioners given the World Bank-funded road project and the risk of losing Kshs. 93 Million funding

Reasoning

The court weighed the petitioners' individual interests against a county-wide development project funded to the tune of Kshs. 93 Million by the World Bank, with completion required within six months and warnings of fund withdrawal. Lawful kiosk owners were to be relocated to the fisheries market, so they would not be left destitute, while only illegal structures were to be removed.

p. 4

Legal principles established

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  • Conservatory orders are granted on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionate magnitudes
  • Not every individual person is required to give an opinion before a public body arrives at a decision for public participation to be satisfied
  • In applying the conservatory-order principles, the totality of the facts guides the court and it should opt for the lower rather than the higher risk of injustice

Court orders

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  1. 1.The application dated 22nd May 2019 is dismissed
  2. 2.The temporary conservatory orders given on 22.5.2019 are discharged
  3. 3.The application dated 17.6.2019 is marked as spent
  4. 4.Each party to bear their own costs of the applications

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3); Article 24
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 23
  • County Government Act
  • Urban Cities Act
  • Civil Procedure RulesOrder 1 Rule 13

Cases cited (13)

  • Gatirau Peter Munya v Dickson Mwendwa Kithinji & 2 others
    (2014) eKLR
  • Kenya Small Scale Farmers Forum v Cabinet Secretary Ministry of Education, Science and Technology & 5 others
    [2015] eKLR
  • Centre for Rights Education and Awareness & 7 Others v The Attorney General
    HCCP No. 16 of 2011
  • Godfrey Mutahi Ngunyi v The Director of Public Prosecution & 4 Others
    NBI HCCP No. 428 of 2015
  • Muslims for Human Rights and Others v Attorney General & Others
    HCCP No. 7 of 2011
  • Satrose Ayuma & 11 Others v Registered Trustees of Kenya Railways Staff Benefits Scheme
    [2011] eKLR
  • Peter Musimba v The National Land Commission & 4 Others (No. 1)
    [2015] eKLR
  • Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 Others
    HCCP No. 7 of 2014
  • Centre for Human Rights and Democracy & 2 Others v Judges and Magistrates Vetting Board & 2 Others
    HCCP No. 11 of 2012
  • Suleiman v Amboseli Resort Ltd
    [2004] 2 KLR 589
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Shree visa Oshwal community Nairobi Registered trustees v. Attorney General and 3 others
    (2014) eKLR
  • John Ntoiti Mugambi & Others vs. Isiolo County Government & 2 Others and 21 interested parties
    Meru ELC PETITION 14 OF 2017
Jurisdiction invoked
Article 23(3) of the Constitution as read with Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hellen Muthoni Kabengi & 20 others v Municipal Manager, Isiolo Municipality & 2 others ; Centre tor Youth Linkages & Empowerment Programmes & another (Interested Parties) [2019] KEELC 1674 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 22nd May 2019 within a petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1674/eng@2019-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.