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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petitioners established a prima facie case warranting conservatory orders
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
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.
Whether the notices and the public participation process were lawful and constitutional
The material showed there was public participation; the 24-hour notice related only to illegal constructions while lawful kiosk owners were to be relocated
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.
Whether public interest favours the grant of conservatory orders
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
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.
Legal principles established
#- 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
#- 1.The application dated 22nd May 2019 is dismissed
- 2.The temporary conservatory orders given on 22.5.2019 are discharged
- 3.The application dated 17.6.2019 is marked as spent
- 4.Each party to bear their own costs of the applications
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.