Joyce Wangari Mwangi v Shaban Gakere Bhakari [2019] KEELC 2405 (KLR)
The bottom line
#A licensed kiosk owner in Kenya can't be evicted by a private landowner — only the county can revoke the licence through proper procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's kiosk was an illegal structure on the Plaintiff's plot
The kiosk was lawful; the Defendant held a Temporary Operating License issued by the Municipal Council of Thika (allocation to Jane W. Muiruri dated 7th April 2000, later transferred to him), which was not controverted.
The Defendant produced an uncontroverted letter of allocation from the Municipal Council of Thika and a Temporary Operating License. Although the license was temporary and removable on condition, the condition (requirement of the site by the Municipal Council or County Government of Kiambu) had not been triggered. The Plaintiff produced no evidence demonstrating illegality or that the kiosk blocked her shop.
Whether the license condition for removal had been triggered
No. The license permitted removal only if the Municipal Council or County Government of Kiambu required the site, which neither had done.
The letter of allocation required removal only where the site was required by the Municipal Council or the County Government of Kiambu. Neither entity had given such notice or required the site. The only ground advanced - that the kiosk blocked the Plaintiff's shops - was not one of the conditions in the license and therefore could not sustain an order for removal.
Whether the Plaintiff was entitled to general damages for trespass
No trespass was established since the Defendant was not found to be on the Plaintiff's property.
Having found that the Defendant's kiosk was lawfully in place under a valid temporary license and that the Defendant was not on the Plaintiff's property, the essential elements of trespass were absent. The claim for general damages for trespass therefore failed with the rest of the Plaintiff's suit.
Whether the Defendant's Counterclaim for a permanent injunction should be allowed
Yes. The Counterclaim was allowed entirely; the kiosk being lawful, it required protection from demolition except upon lawful revocation of the temporary license.
The court found the kiosk lawfully in place under the temporary license. Protection was warranted unless and until the license was revoked for the lawful purpose stated in the letter of allocation and in accordance with laid-down procedures. The Counterclaim therefore succeeded entirely with costs.
Legal principles established
#- A party alleging that another's structures are illegal must demonstrate illegality; a structure erected under a valid Temporary Operating License cannot be treated as illegal.
- A temporary license conditions govern when removal of a licensed structure may be compelled, and removal may only be demanded for the lawful purpose specified in the letter of allocation and in accordance with laid down procedures.
- A plaintiff who fails to prove her case on a balance of probability cannot obtain the prayers sought.
Court orders
#- 1.The Plaintiff's suit is dismissed entirely with costs to the Defendant
- 2.The Defendant's Counterclaim is allowed entirely with costs, granting a permanent injunction restraining the Plaintiff, her agents, servants, employees or any other person claiming to act with her authorization from demolishing and/or interfering with the Defendant's Kula Kiosk located at Kamenu Makongeni
- Jurisdiction invoked
- Original civil suit under the Environment and Land Court's jurisdiction (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Wangari Mwangi v Shaban Gakere Bhakari [2019] KEELC 2405 (KLR)", Case Analysis (2019). Not stated in the judgment (suit filed by Plaint dated 16th August 2017, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2405/eng@2019-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.