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ELCDismissedPetition E006 of 2022· [2023] KEELC 18025 (KLR)

Wanjohi & another v County Government of Uasin Gishu

Environment and Land Court at Eldoret
6 June 2023
JOJ.M. Onyango
4,111 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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The Eldoret court refused to order reopening of demolished markets, ruling courts cannot issue orders that cannot be enforced.

What this practically means

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Executive summary

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The Petitioners, a trader and the Eldoret Market Traders Association, petitioned over the abrupt closure of Champions and Sixty-Four Markets in Eldoret on 18th November 2022 by the County Government of Uasin Gishu, alleging violations of public participation (Article 10(2)), fair administrative action (Article 47), property rights (Article 40) and the right to a clean environment (Article 42). Together with the Petition they filed a Notice of Motion seeking conservatory orders suspending the closure and relocation of traders to Kahoya and Kimumu markets, and an order compelling reopening of the markets. The Respondent opposed, relying on a statutory notice under section 118 of the Public Health Act, subsequent criminal charges against its Chief Officer (CM Criminal Case No. 1019 of 2022), and court-ordered closure for renovation. Both parties filed written submissions citing authorities on conservatory orders and mandatory injunctions. The court directed a site visit by the Deputy Registrar, whose report of 15th May 2023 revealed that contrary to the Respondent's affidavit asserting renovation, the markets had been demolished to make way for a new market to be built with the National Government - a fact confirmed in the CMCR proceedings, which were subsequently withdrawn with the accused discharged. Holding that the orders sought were incapable of enforcement and that a court does not issue orders in vain, the court dismissed the application without delving into the merits, with no order as to costs. The main petition remains pending.

Key legal issues

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01

Whether conservatory orders and a mandatory injunction to reopen the markets should issue

Holding

The application was dismissed because the markets had been demolished, rendering the orders sought unenforceable

Reasoning

The Deputy Registrar's site visit report of 15th May 2023 revealed that contrary to the Respondent's affidavit claiming renovation, the markets had been demolished with a view to constructing a new market with the National Government. The criminal case under which closure orders were made was withdrawn and the accused discharged. Since the subject matter of the orders no longer existed, granting them would be futile.

p. 8

Legal principles established

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  • A court does not issue orders that are incapable of enforcement or that would be issued in vain

Court orders

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  1. 1.The application is dismissed with no order as to costs
Jurisdiction invoked
Original constitutional petition jurisdiction of the Environment and Land Court (Article 162(2)(b) jurisdiction; petition alleging violations of Articles 10, 40, 42 and 47)

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, "Wanjohi & another v County Government of Uasin Gishu", Case Analysis (2023). Petition E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18025/eng@2023-06-06

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