Eldo Hawkers Savings and Credit Co-operative Society Limited v Uasin Gishu County Government (Petition 2 of 2018) [2024] KEELC 6272 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that hawkers' years of street trading and fee payments gave them no legal property rights over public land.
What this practically means
#Executive summary
#Key legal issues
#Whether a legitimate expectation arose from payment of daily licensing fees and designation of hawking zones
No legitimate expectation was violated; the designation of hawking zones was expressly temporary (valid until July 8, 2016) and alternative markets were provided.
The letter of April 8, 2016 designated the zones for three months only, and the Proposed Guidelines provided that temporary hawking zones would be renewed quarterly pending completion of markets. With about 247 unused stalls available for 230 members, every member could be accommodated in the markets. An expectation to operate on streets at the expense of other traders' expectations is not legitimate.
Whether the respondent violated the right to fair administrative action under article 47
No violation; the respondent gave sufficient notice and reasons over a 15-year reform process including public participation.
Notices ran from 2008 to 2017, an EIA was conducted in 2007, public consultation occurred on December 3, 2012, and stakeholders were engaged in meetings from 2016 to 2017. The petitioners did not state or lead evidence on how the respondent failed to comply with article 47, and did not deny that its members were consulted.
Whether the petitioners acquired an interest in the hawking zones protected by article 40
No; the zones stood on public land, and payment of fees or occupation conferred no proprietary interest.
The designated hawking zones, streets and highways are public land held in trust by the county government under article 62. Following Veronica Njeri Waweru, one cannot be deprived of that which one has no rights over. The petitioner's failure to claim compensation under article 40(3) acknowledged non-ownership.
Whether the respondent's actions contravened articles 10, 43, 55, 57 and 186
No violation established; the respondent acted within its Fourth Schedule functions and the petitioners failed to prove the alleged infringements.
The respondent's actions fell within its exclusive mandate over markets, trade licences, nuisance control, county transport and disaster management. The alleged violations of articles 43, 55 and 57 were not proved with precision or supported by evidence, and no total ban on hawking was imposed since markets were provided as alternatives.
Legal principles established
#- Legitimate expectation must itself be legitimate and cannot prevail against express provisions of the law or the Constitution.
- Neither long occupation of public land, payment of daily hawker's fees, nor holding temporary licences confers a proprietary interest capable of protection under article 40.
- A petition alleging infringement of rights must demonstrate with precision the right violated, the manner of violation, and the relief sought.
- There is no legal requirement that a county government obtain a court decree or approval before undertaking executive action.
Court orders
#- 1.The petition dated January 18, 2018 is dismissed
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Articles 1, 10, 28, 40, 43, 47, 55, 57 and 186 of the Constitution of Kenya, 2010 (constitutional petition for violation of fundamental rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eldo Hawkers Savings and Credit Co-operative Society Limited v Uasin Gishu County Government (Petition 2 of 2018) [2024] KEELC 6272 (KLR)", Case Analysis (2024). Petition No 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6272/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.