Albert Majimbo, John Simiyu & Hedrick Iraco Ndirangu (Suing as office bearers of Chanuka Self Help Group v Kiminini Cottage Hospital & County Government of Trans-Nzoi [2018] KEELC 774 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 133 OF 2016

ALBERT MAJIMBO

JOHN SIMIYU

HEDRICK IRACO NDIRANGU (Suing as office bearers of CHANUKA SELF

HELP GROUP.......................................................................................PLAINTIFF

VERSUS

KIMININI COTTAGE HOSPITAL..........................................1ST DEFENDANT

THE COUNTY GOVERNMENT OF TRANS-NZOIA........ 2ND DEFENDANT

JUDGMENT

INTRODUCTION

1. In the plaint dated 29/08/2016, the Plaintiff prays for judgement against the Defendants for:

a. A declaration that the Defendants  have no rights whatsoever to evict  the plaintiffs and/or to interfere with the plaintiffs’ businesses at Kiminini Centre along Kitale Webuye road and the purported verbal notice issued to the plaintiffs and the intended demolition of the plaintiffs  businesses is unlawful, irregular null and  void.

b. A permanent injunction restraining the defendant, their agents, servants or any  other person from defendants, their agents, servants or any other person acting for or on their behalf from demolishing and/or in any other manner interfering with the plaintiff’s businesses situated at Kiminini Centre along Kitale   Webuye road in Trans-Nzoia County

c. Costs and interest.

PLEADINGS

The Plaint

2. It is the plaintiff’s case that they are the office bearers of Chanuka Self Help Group; that they carry their businesses on read reserves at Kiminini Centre along Kitale Webuye road and they have carried out such businesses since 1994; that the Ministry of Public works which owns the land along which the plaintiffs carry out their daily businesses has never complained about the plaintiffs’ businesses and/or required the plaintiffs to vacate that place; that in 2015 the plaintiffs registered their group as a self-help group and have been carrying out their businesses openly, continuously and without interference and they have even been recognised by the County Government of Trans-Nzoia which issues them with receipts for carrying out their businesses; that on or about 29th September 2016, the 1st and 2nd defendants through their agents and/or servants forcefully invaded the plaintiffs place of business and purportedly issued the plaintiff’s with a verbal notice requiring the plaintiff’s to immediately vacate or risk their business being demolished and/or carried out and that the defendants have never served the plaintiffs with any proper notice to vacate or at all.

The Defence

3. The 1st defendant filed his defence on 31/3/2017 denying each and every allegation of the fact and/or law pleaded in the plaint as if set out herein seriatim and traversed verbatim. The 1st defendant averred that it is a registered private hospital operating along Kitale - Kiminini road near Kiminini trading Centre.  It is further the 1st defendant’s claim that the plaintiffs business are operated and/or conducted in front of the 1st defendant’s said hospital without the consent, authority or permission of the 1st defendant.

4. The 1st defendant further avers that the plaintiffs’ business which among others is the sale of fruits, vegetables and other food is done near the 1st defendant’s mortuary and such activities cause a lot of inconveniences to the 1st defendant’s health facility, which is serving the general public.

5. The 1st defendant states that the plaintiffs are full of rudeness, arrogance and in total disregard of existing laws and regulations governing their trade and using of a road reserves, especially those bordering private properties as in the instance case.

6. The 1st defendant pray that the plaintiff’s suit/claims be dismissed with costs.

7. The 2nd defendant filed his statement of defence on 7/3/2017. That defence states that the 2nd defendant is legally mandated to plan control development and planning of all towns and urban Centres falling within its jurisdiction including Kiminini; that all the traders in Kiminini are subject to the Physical Planning Act and Urban Areas and Cities Act; that Kiminini market is zoned for various purposes; that there is a vacant and unutilized permanent market designed and set aside for the plaintiffs; that the plaintiffs are traders operating on the road reserve without permits or licences and without the consent of the owners of the plots in front of which the plaintiff’s businesses are conducted; that the activities of the plaintiffs are a public nuisance and a health risk; that the plaintiffs are stubborn and refuse to comply with the law and regulations governing trade; that the 2nd defendant has attempted to use diplomatic means to relocate the plaintiffs to the designated trading areas in vain.

The Plaintiffs’ Evidence

8. PW1,the1st plaintiff, testified on 21/9/2018. He adopted his statement dated 29/8/2016. He reiterated more of the matters set out in the plaint. He stated that he is the chairman of the Chanuka Self Help Group Kiminini; that the 2nd plaintiff is the secretary while the 3rd plaintiff is the treasurer. He stated that the three have brought the suit on behalf of the group which is said to have 138members. He produced the Certificate of Registration of the group under the Ministry of Labour Social Security and Services dated 6th October 2015 in support of the fact of its registration and a list of members and its constitution; he stated that the members conduct their various businesses on the road reserve along the Kitale-Webuye highway at Kiminini seven days a week though County Government issues them receipts for fees thrice a week  and the rest of the days are free; that they have been operating on that spot since 1994; that on 29th September 2016 County Government officers accompanied by the Kiminini Cottage Hospital officials came to area  and ordered the plaintiffs to vacate the area within 24 hours; that no formal notice was issued; that they were informed that in default their structures would be demolished. That the plaintiffs were not shown where to relocate to; that they operate outside the 1st defendant’s hospital next to the main road; that they do  not require the 1st defendant’s consent to operate; that there is a high wall that separates them from the 1st defendant’s hospital; that they have never interfered with the hospital operations; that they do not sell vegetables next to the mortuary; that no health officer has ordered them to close their businesses yet; that no meeting has ever been held with the County Government at which any notice to vacate was issue to them; that the planned demolition is illegal; that if the plaintiffs are shown a place to relocate to they would leave their current business area; that the area is not within the County Government’s jurisdiction but under Kenya National Highways Authority (KeNHA); that KeNHA has not complained against the plaintiffs; that he recognizes that the County Government can control developments and traders are affected by its decisions, that there is no built up market area and that they have not been shown the open air market. He admitted to having a stall that has been built for him by the county government which is located on the road reserve and that he and others in similar structures are tenants of the County Government; he admitted on cross-examination that the plaintiffs operate about 5 metres from the perimeter wall of the hospital, that he sells fruits and vegetables and that he does not need a food hygiene licence.  On re-examination by Mr. Teti he stated that the hospital and the County Government have never complained about the plaintiffs’ activities. He further attributed the noise pollution in the area to the activities of the matatu touts. However he agreed that if the plaintiffs are shown a place to relocate to, they would move from the area.

9. On examination by the court the witness stated that the structures that they occupy were built in 2017, that the County Government built a structure for each trader at the spot where they found him conducting his activities and that the traders never contributed resources for the building of the stalls.

10. PW 2 Hendrick Iraco Ndirangu testified on 25/9/2018. She adopted her statement filed in court on 29/8/2017; his statement substantially reiterates what PW1 said in his evidence. Under cross-examination by Mr. Karani for the 1st respondent, she added that her business premise is a stall comprised of a small table placed on the road reserve about 8 metres from the Kitale Webuye road; that the plaintiffs only sell fruits and vegetables, that however many people buy fruits and eat them on the spot; that the County Government provides garbage bins, that he does not have a licence and does not need one; that there is an open air market in the Centre. On re-examination she stated that no health official has ever asked her for a licence, and she has never been denied a fees receipt by the county government for failure to have a licence.

The Defence Case

11. DW1 Carolyne Mutoro testified on 25/9/2018 and adopted her witness statement dated24/9/18. She added orally that she works at the Catholic Diocese of Kitale as the Diocese Health Co-coordinator; that she co-ordinates all the faith based health facilities including the Kiminini cottage hospital; that Bishop Maurice Crowley wrote a letter dated 16/5/2016 to the County Government informing it that traders in the area had become a nuisance to the delivery of health services and that the letter sought the County Government to bring order to the area. She averred that the hospital has not given the traders any notice as that is not its mandate. She also denied that the hospital is applying any pressure to the County Government to do its work. Under examination by Mr. Karani she stated that the traders have caused inconvenience as they have to be cleared before an ambulance passes; that they inconvenience the members of the public as they operate near the mortuary gate, thus blocking the mortuary billboard from view and that having blocked it, the traders take it upon themselves to direct the members of the public directions to the mortuary; that their waste emits odour; that they make the cleaning of the drainage very uncomfortable; that the hospital can not therefore maintain the cleanliness standards required of such a facility; that the environment is very noisy owing to the mixture of noise from the matatu touts and the traders; that in these circumstances the Bishop had indicated that the hospital would have to be closed if that environment was not brought back to normal; that the traders are selling food items near the mortuary which is not advisable. While under cross examination by Mr. Teti she stated that patients have complained about the nuisances brought by the traders.

12. DW2, Kenneth Kipkori Langat testified on 26/9/2018and adopted his written witness statement filed on1/9/2018. He orally added that he was the Chief Physical Planner, Trans-Nzoia County; that the role of the physical planning department is planning and development control within the county which includes Kiminini; that there are metallic stalls placed near Kiminini Cottage Hospital; that DW2 had earlier advised that the stalls be placed around the open air market to form a kind of a perimeter wall around it;  that however the same stalls were placed at their present location at the instance of the Affirmative Action Office; that he informed the traders that that location was a road reserve and advised that they were supposed to be at the market; that the traders asked that the structures which were welded together in a row by then, be separated; that he facilitated the separation thereof; that the traders agreed that the stalls would then be moved to the right place; that however they were not moved; that he involved the Deputy County Commissioner’s office and the traders were told  to move the stalls in a meeting held on 29/8/2016; that the officials from the County Government and the National Government, the traders and the traders’ representatives were present at that meeting; that minutes of that meeting were taken; that at the  meeting the traders were asked to move to the area designated as a market; that they asked for a separation of their stalls upon the understanding that they would move; that instead of moving the traders served the County Government officials with a letter one day later saying the movement had been stopped; that after he informed them that that document could not be respected as it was not a court order they asked for 3 days in order to move; that there is a bus park and an open air market at the Centre; that the area that the plaintiffs are occupying is meant for a service lane to serve the properties nearby; that every land owner has the right to enjoy the road frontage to his property; that the first complaint to the County Government came in 2016 when the stalls were placed on the road reserve; that the hospital management demanded that the structures be subjected to an approval process as they affected the operations of the hospital and the mortuary; that the traders sell fruits, vegetables, raw and roasted maize; snacks and general food items; that the traders need licenced from the 2nd defendant to deal in food commodities and the witness is not aware that the County Government had licences the traders to deal in food items; that there are no bins meant for garbage collection at that location as it is not meant to be a market anyway; that the hospital has complained that the area  between the stalls and the hospital perimeter wall  is used as a toilet; that the location is not provided with a toilet as it is not meant to be a market; that the matatu stop has now been relocated from the area; that all traders are allowed to trade at the newly constructed market area; that the traders have been shown where to go, and that is the open air market and that some of them have already moved to it; that all activities on the road reserves are normally regulated by the County Government; that the allegations of lack of adequate notice are not true as several meetings were held with the traders; that DW2 personally met with the traders representatives; that the County Government did not wish to just wake up and remove the traders without notice; that however when the County Government offered to move them, the traders offered to move on their own accord.

13. Upon cross examination the witness stated that he had personally visited the site and noted the existence of the inconveniences pleaded by the defendants. He also added that the hospital staff and users should not access the hospital directly from the main road but through a service lane. On cross examination by Mr. Teti he admitted that though the traders are not recognized, the county government issues the traders with daily trading fee receipts.

Submissions

14. The 1st defendant filed submissions on 24/10/2018. The 2nd defendant filed its submissions on 2/11/2018.  I have considered the pleadings and the evidence given on behalf of the parties as well as the submissions of the defendants.

15. The main issues for determination in this matter are:

(a) Are the plaintiffs operating near the Kiminini Cottage Hospital and if so are they a source of nuisance to the said hospital and the general public?

(b) Whether the notice issued to the plaintiffs to  move from their current trading location is      unlawful irregular null and void;

(c) Whether an injunction should issue restraining the defendants from demolishing or in any other manner interfering with the plaintiff’s businesses situated at Kiminini Centre along the Kitale-Webuye road.

(d) What orders should issue?

(a)  Are the plaintiffs operating near the Kiminini Cottage Hospital and if so are they a source of nuisance to the said hospital and the general public?

16. On this issue the plaintiffs produced photographs which were labelled P.Exh 5 which, when analysed together with the evidence of the witnesses from both sides of this dispute, show that indeed the plaintiff’s stalls are located on the road reserve just a few metres away from the perimeter wall of the hospital.

17. The evidence ofPW2 placed the stalls at an estimated 8metres away from the hospital’s perimeter wall while in his evidence PW1 estimated the distance to be 5 metres. In my view and having regard to the photographic evidence produced by the plaintiffs, that distance does not exceed 6 metres.

18. The 1st defendant’s witness testified that there is noise emanating from the commercial activities of the traders and the activities of matatu touts. I note that though no scientific evidence was produced in proof of this allegation there is bound to be noise from a market and from matatus unless the same is controlled by some means.

19. The plaintiffs did not demonstrate how they deal with such noise and it is possible that some noise pollution reaches the hospital. However it is not possible to determine the noise levels as no scientific evidence was produced by the parties. The noise is bound to be a nuisance.

20. Regarding waste disposal, it is the evidence of the 2nd defendant that the County Government did not provide any sanitary facilities and the location from which the plaintiff’s trade, nor any garbage bins to serve the traders as the area was never meant to serve as a market in the first place.

21. The plaintiffs have not demonstrated that, in the absence of any measures by the County Government, they have a well-organized and effective method of way of handling solid waste which, as a matter of course, must emanate from a market of that nature.

22. The evidence that comes to the fore in this suit is that there was failure of co-ordination between the County Government Planning office and the Affirmative Action office, the latter which was not a party to these proceedings, which led to the establishment of market stalls on a road reserve next to the hospital.

23. There is no evidence that the premises are well served with sanitation and garbage facilities. There is also no environmental assessment impact report showing that the environmental concerns raised by the 1st defendant were addressed before the stalls of the plaintiffs were constructed. Lack of some utilities at the site can be attributed to the aforesaid lack of co-ordination between two public offices.

24. Though it is common to find traders operating on road reserves countrywide, it is necessary to recognize that this is a default setting borne of lack of enforcement of planning laws and regulations and it should not be encouraged by a court of law or by any authority.

25. Section 58 (1) (2) and (3) of theEnvironmental Management And Co-ordination Act state as follows:

(1) Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before for an financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.

(2)  The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:

Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.

(3) The environmental impact assessment study report prepare under this subsection shall be submitted to the Authority in the prescribed form, giving the prescribed information and shall be accompanied by the prescribed fee.

26. If land use change is what was intended by the Affirmative Office, I consider a change of land use from a road reserve to a public market to be a major land use change within the meaning of “major land use change” contained in paragraph 1 of the 2nd Schedule to the Environmental Management and Co-ordination Act (E.M.C.A).

27. Therefore, when a public office decides to formally issue trading space to citizens on a road reserve fronting other citizen’s properties that decision calls for a project report in accordance with the Section 58 (1) of the Environmental Management and Co-ordination Act.

28. Without compliance with Section 58 (1) and without any Environmental Impact Assessment Licence issued by the authority under E.M.C.A, the only conclusion is that environmental concerns have not been considered and ruled upon by the proper authority under Section 58(1) and (2) of the Act and this court is bound to consider that the 1st and 2nd defendants’ concerns may have merit.  Moreover, even in the absence of such an EIA Licence, the plaintiffs have not done the trite thing appropriate in such circumstances for the purpose of aiding their case: no evidence was provided by the plaintiffs in their case of the presence of sanitary or garbage handling strategies or facilities to show that the location may have been prepared somehow, even though not to the fullest compliance with environmental laws for use as a market.

29. For this reason I find that the concerns of the 1st and 2nd defendant regarding noise pollution and poor solid waste disposal and absence of proper sanitation at the present site are genuine.

30. The conclusion of this court is therefore that the plaintiffs’ operations are therefore a source of nuisance to the 1st defendant and to the general public.

(b)  Whether the notice issued to the plaintiffs to move from their current trading location is unlawful irregular null and void

31. It is admitted by both the plaintiffs and the defendants that the plaintiffs are conducting their trading activities on a road reserve within Trans-Nzoia County within the jurisdiction of the 1st respondent.

32. It is admitted both the plaintiffs and the defendants that a meeting was held on the 29th September 2016 at which the plaintiffs were issued with a verbal notice to vacate the area on which they are currently conducting their commercial activities. I am convinced that the meeting evidenced by the minutes produced as D.Exh 2 took place and that the plaintiffs, the hospital management, the national government and the county government were all represented.

33. The reasons given by the 2nd defendant is that the site the plaintiffs occupy is not meant for a market; that it is meant for a service lane for use by the owners of the plots abutting the road reserve and that there is an area designated for the commercial activities carried on by the plaintiffs.

34. Having considered the evidence of the witnesses from both sides in this case, it is clear from the minutes labelled D.Exh 2 that the traders’ chairman was only concerned that the alternative sites offered by the County Government were not as conducive for business as the current site while membership of the trader community were concerned that the notice was short and that the land did not belong to “anybody” yet they were required to move. The contents of the minutes reflect the area Chief as having informed the traders that the market was not full and that it was the properly designated area for the traders to operate from and that their operation from the current site for a long period did not make the traders’ presence thereon legal.

35. The minutes reflect that the meeting ended with the resolution that the traders would relocate and that the Kiminini Sub County Administrator would supervise the relocation of the traders.

36. I am therefore of the view that from 29/8/2016the plaintiffs were aware that the 1st defendant required them to vacate the premises but they never moved.

37. This meeting appears to be the only record of any notice that the plaintiffs were given. The County Government witness never produced any written notice to the traders. It was the evidence of the traders that the County Government has a record of the names of all the traders in the current site and that they could have issued them with a formal notice. However no notice was forthcoming.

38. The land on which the premises are located is admittedly not owned by any of the defendants. However I have noted that the defendants are only intent on implementing good planning practices in the Kiminini Trading Centre and they do not claim ownership. An example of the inadequacy of the current situation was said to be that the hospital should not access its premises directly from the main road but through a service land and this is impossible now that the traders have occupied the road reserve that would have hosted the service lane.

39. It was also the evidence of DW 2 that the Trading Centre has been planned. This court was not shown any minutes approving a plan or any official plan of the Trading Centre outlining such public utilities such as a market facility which could be used by the traders and their customers. This was a serious omission on the part of the defendants and especially the 2nd defendant who gave evidence through a Physical Planner. However, I am persuaded by the minutes exhibited as D.Exh 2 and the photographs in the 2nd defendant’s bundle filed with the list of documents dated 20/9/2018 that the market has been constructed. The plaintiffs can not therefore claim that they are not aware of the existence of the newly constructed market.

40. However the issue that remains outstanding is whether proper notice was issued by the 2nd defendant.

41. The provisions of the Section 152Aof the Land Actprovides as follows:

“A person shall not unlawfully occupy private, community or public land.”

42. Public Land in theLand Actis defined as follows:-

“Public land” has the meaning assigned by Article 62 of the Constitution and includes the coast foreshore, river, dams, lakes and other reserves under the Survey Act (Cap. 299) or under any other law.

43. Article 62of the Constitution defines public land to include the following:-

(h) all roads and thoroughfares provided for by an Act of Parliament;

44. Section  91of theTraffic Actprovides as follows:

91. (1) every person who, without the written permission of the highway authority-

(a) encroaches on a road or on any land reserved therefore at the side or sides thereof by making or erecting any building, fence, ditch, advertisement sign or other obstacle, or by digging thereon or by planting or sowing any tree, shrub or seeds thereon; or

(b) deposits or causes to be deposited in any manner whatever on a road any material or matter, other than road-making materials deposited for the purpose of making up or repairing the road; or

(c)   digs up, removes or alters in any way the soil or surface of a road, or of any land reserved therefore at the side or sides thereof, or if done for the purpose of moving a vehicle without immediately thereafter making good the damage; or

(d)   wilfully fills up, alters or obstructs any ditch or drain, whether on a road or contiguous thereto, made by or under the control of the highway authority, to carry water off the road or to keep it from flowing on to the road; or

(e)   allows any sludge or any filthy or noisome matter to flow from any building or land in his occupation on to a road or into any ditch or drain made by the highway authority; or

(f)    causes or allows any timber, sledge, plough or other heavy material, vehicle or implement not wholly raised above the ground on wheels to be dragged on a road; or

(g)   pitches any tent, booth or stall on a road; or

(h)   makes any fire on any road, shall be guilty of an offence.

(2)  It shall be lawful for the highway authority to remove anything whatsoever which has been placed or erected on a road or land reserved therefore in contravention of this section.

45. Section 152Cof theLand Actprovides as follows:

“The National Land Commission shall cause a decision relating to an eviction from public land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction”.

46. The 2nd defendant has not demonstrated that such notice as is prescribed in Section 152C of the Land Act replicated above was issued, yet from the various provisions of the various statutes and the constitution replicated above it is the only kind of notice that in the opinion of this court that appears to be proper in law in the situation.

47. It is the observation of this court that the failure by the plaintiffs to enjoin the Kenya National Highways Authority to this suit was born of the belief that the authority does not object to the plaintiff’s use of the road reserve contrary to the law and no dispute lies between them and KeNHA.

48. However if any evidence, other than oral evidence, of that non- objection had been presented to court this court would have noted it and ordered accordingly, for lawful occupation of a road reserve can only happen with the express authority of a statutory body commanded by law to be its keeper. The conclusion is therefore that the plaintiffs are illegally operating on a road reserve.

49. Was the verbal notice that was therefore issued at the meeting depicted by P.Exh 2 therefore irregular, null and void and should the 2nd defendant await the coming of the Authority before it acts to remove the nuisances caused by the plaintiffs within its jurisdiction?

50. This court will return to the point conceded to by the plaintiffs themselves: that the 2nd defendant has both statutory and constitutional mandate to effect planning regulations within its area of jurisdiction. The plaintiffs admit that they are within the area of jurisdiction of the 2nd defendant.

51. In my view the general duty owed by the 2nd defendant to the general public to effect good planning practices within its area of jurisdiction is greater than the duty owed to a smaller group of persons whose activities violate the law and occasion those nuisances.

52. Besides, ultimate total breakdown of law and order in the planning sector begins with the turning of a blind eye by a planning authority towards what might be considered minor transgressions, which are emulated by other citizens for the sole reason of tolerance on the part of a planning authority of the prior “minor” transgressions.

53. In this case the Kenya National Highways Authority has either refused or neglected to act. The 2nd defendant has chosen to act to reverse what it deems to be a wrong. It should be commended for trying to restore sanity by building a market and trying to move the plaintiffs to that market.

54. In my view the very fact that it has mandate to licence the plaintiffs to trade makes the 2nd defendant the proper authority over the allocation to the plaintiffs of trading areas, whether  these are within the physical and legal jurisdiction of KeNHA or not.

55. KeNHA’s role is merely to permit use by any person of a road reserve where it deems fit, for the purposes allowed by the 2nd defendant and within ambit of the governing planning laws and regulations.

56. Collaboration between KeNHA and the 2nd defendant that would ensure that converging licences are issued by each would therefore be necessary and no acquiescence on the part of one of the two authorities can be deemed to authorize an activity regulated by the other without express permission from that other authority.

57. None of the plaintiffs should therefore be able to legally operate commercial activities at the site where such are not authorized by the 2nd defendant even if they obtain permission from KeNHA.

58. I find that the failure on the part of the 2nd defendant in this matter lies in issuance of licences or fees receipts to persons it already deems to be operating illegally on a road reserve. When the plaintiffs rush to court waving these licences or payment receipts the 2nd defendant only has itself to blame for their reluctance to move. Its objection to their operations should have been backed by denial of licences and refusal to collect such fees.

59. The public meeting at which the notice of relocation was issued and the absence of any evidence of consent to the plaintiff’s activities from KeNHA, demonstrates that the plaintiffs were aware that they were on the wrong side of the law.

60. The oral notice may not have been in accordance with the law outlined hereinabove; however, in this court’s view, a diligent citizen having by any means been informed of his transgression of the law in circumstances that render it obvious that he is aware he is in transgression, and having acknowledged such information, should amend his conduct accordingly and not insist on being in breach.

61. It is also proper to note that the plaintiffs were not being evicted blindly, but to for a purpose and to specific premises which are a market developed with taxpayer’s money to host the plaintiff’s activities which market remains idle to date.

62. In my view the special circumstances of this case make it proper for this court to hold that the oral notice was sufficient.

(c)Whether a permanent injunction should issue restraining the defendants from demolishing or in any other manner interfering with the plaintiff’s businesses situated at Kiminini Centre along the Kitale -Webuye road.

63. The plaintiffs seek a permanent injunction. Issuance of a permanent injunction would appeal to this court in circumstances where the plaintiffs have demonstrated proprietary interest in the premises that they occupy and legality of their activities they carry on in those premises. However in the instant suit they do not own the land. A permanent injunction can not in the circumstances issue to restrain the 1st respondent from implementing its legal mandate with regard to planning and ensuring a nuisance-free environment for the general citizenry, or to save the plaintiffs and their customers from the very danger that their illegal occupation of the road reserve poses.  Their occupation of the land has been demonstrated to be illegal and a source of public nuisance. This prayer is rejected.

(d)  What orders should issue?

64. In the final analysis I find that the plaintiffs have not established their claim against the 1st and 2nd defendants at all.

65. However, I find that it would be in order that the 2nd defendant develops a proper programme of relocation which takes each of the plaintiffs to a particular spot, preferably identified by secret ballot in order to avert any stampede or any unnecessary conflicts among the plaintiffs when they begin to relocate to the new area set aside for their activities.

66. In the final analysis, I issue the following orders:

(a)  The plaintiff’s suit against the 1st and 2nd defendants is hereby dismissed.

(b)  Each shall bear its own costs of the suit.

Dated, signed and delivered at Kitale on this 19th day of  November, 2018.

MWANGI NJOROGE

JUDGE

19/11/2018

Coram:

Before - Mwangi Njoroge, Judge

Court Assistant - Picoty

Parties absent

COURT

Judgment read in open court.

MWANGI NJOROGE

JUDGE

19/11/2018