City Market Stall Holders Association & 2 others (Suing through Michael Noru Kamau (organising secretary) Anthony Kuria (Secretary) and Peter Osore (Treasurer)) v Odipo & 9 others (Suing through Joanes Ngesa Odongo (Chairman) and Benard Aboj (Secretary)) [2022] KEHC 387 (KLR)

City Market Stall Holders Association & 2 others (Suing through Michael Noru Kamau (organising secretary) Anthony Kuria (Secretary) and Peter Osore (Treasurer)) v Odipo & 9 others (Suing through Joanes Ngesa Odongo (Chairman) and Benard Aboj (Secretary)) (Civil Appeal 187 & 203 of 2019 (Consolidated)) [2022] KEHC 387 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 387 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 187 & 203 of 2019 (Consolidated)

JK Sergon, J

May 6, 2022

Between

City Market Stall Holders Association

Appellant

Suing through Michael Noru Kamau (organising secretary) Anthony Kuria (Secretary) and Peter Osore (Treasurer)

and

Arthur Odipo

1st Respondent

George Nyamita

2nd Respondent

Caroline Limberia

3rd Respondent

Benson Kiiru

4th Respondent

Margaret Wanjiku

5th Respondent

Millicent Ochola

6th Respondent

Kenyanam Lake Fish Dealers Association

7th Respondent

Nairobi County Government

8th Respondent

Director Of The Nairobi County Inspectorate

9th Respondent

Suing through Joanes Ngesa Odongo (Chairman) and Benard Aboj (Secretary)

As consolidated with

Civil Appeal 203 of 2019

Between

Nairobi County Government

1st Appellant

Director Of The Nairobi County Inspectorate

2nd Appellant

and

Arthur Odipo

1st Respondent

George Nyamita

2nd Respondent

Caroline Limberia

3rd Respondent

Benson Kiiru

4th Respondent

Margaret Wanjiku

5th Respondent

Millicent Ochola

6th Respondent

Kenyanam Lake Fish Dealers Association

7th Respondent

City Market Stall Holders Association

8th Respondent

Suing through Joanes Ngesa Odongo (Chairman) and Benard Aboj (Secretary

(An appeal from the ruling and orders of the Chief Magistrates Court at Nairobi, Hon. P. N. Gesora (Mr.) dated 27th march 2019 in Civil Case no. 684 of 2018)

Judgment

1. On 27th March 2019, Hon. P. N. Gesora, learned Chief Magistrate delivered a ruling in respect of two applications. The first application is the motion dated 24th October 2018 taken out by the 1st to 7th respondent whereof they sought for inter alia to enforce the orders issued on 9th October 2018 by committal of the 8th and 9th respondents to civil jail.

2. The second application is the motion dated 7th November 2018 taken out by the appellant whereof it sought for the orders issued on 27th March 2019 to be reviewed and set aside.

3. In his ruling, Hon. P. N. Gesora dismissed the appellant’s motion and instead allowed the 1st to 7th respondent’s application by stating that the court’s orders issued on 27th March 2019 had not been obeyed and further proceeded to direct the Director Inspectorate to purge the contempt in two weeks. Being aggrieved by the aforesaid ruling, City Market Stall Holders Association preferred H.C.C.A no. 187 of 2019 and put forward the following grounds:i.The learned magistrate erred in law and in fact in finding that the appellant had failed to prove error of law and fact apparent on the face of the record necessitating the review sought; and in dismissing the appellants notice of motion application dated 7th November 2018 for want of merit.ii.The learned magistrate erred in law and in fact in failing to find that the 1st, 2d, 3rd, 4th, 5th, 6th and 7th respondents and their group of hawkers had been evicted by the 8th and 9th respondents from Nairobi City market prior to the suit/application and the orders of the subordinate court (Hon. P. N. Gesora (Mr.) given on 9th October 2018 and that the said orders were untenable ab initio.iii.The learned magistrate erred in law and in fact in finding the 9th respondent in contempt of court, absent proof of violation of the court orders given on 9th October 2018, or at all.iv.The learned magistrate erred in law and in fact in directing the 9th respond to purge contempt of orders issued after the fact.v.The learned magistrate erred in law and in fact in making a finding at the interlocutory stage, that the 1st, 2nd, 3rd, 4th, 5th 6th and 7th respondents and their group of hawkers were licensees at Nairobi City Market, despite overwhelming evidence to the contrary; and in failing to find that the licenses held by the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents’ group were general/standard trade licences which did not specifically permit them to trade at the Nairobi City Market.vi.The learned magistrate erred in law and in fact in failing to consider and uphold the appellants’’ rights and interests as the only or bona fide tenants permitted by law to trade at Nairobi City Market.vii.The learned magistrate erred in law and in fact in failing to find that the 1st to 7th respondents and their group did not have any legal rights to trade at the Nairobi City Market, leading to their eviction by the 8th and 9th respondents prior to the suit.viii.The learned magistrate erred in law and in fact by encroaching into the administrative mandate of the 8th and 9th respondents as custodians of the Nairobi City Market in demanding reinstatement of the 1st to 7th respondent’s group to the market after eviction, thereby overarching his jurisdiction.ix.On the whole, the decision of the Chief Magistrate Court (Hon. P. N. Gesore (Mr.) is biased and unlawful; and it is contrary to pleadings/submissions, evidence, precedent and practice. The decision impugned herein is inexplicable on the facts and law relevant to the matter, and it is contrary to Article 50(1) of the Constitution of Kenya.

4. On the other hand, Nairobi County Government and The Director of the Nairobi County Inspectorate being aggrieved too preferred H.C.C.A no. 203 of 2019 whereof they put forward the following grounds of appeal.i.THAT the learned magistrate erred in law and fact by failing to take into account the affidavits evidence adduced by the appellant thus arriving at a wrong decision.ii.THAT the learned magistrate erred in law and fact in making a finding that the 2nd appellant to purge the contempt in two weeks without giving reasons for the same.iii.THAT the learned magistrate erred in law and fact in finding that the 2nd appellant is in contempt of court without any proof or the violated order of the court given on 9th October 2018 or at all.iv.THAT the learned magistrate erred in law and fact in failing to consider sufficiently or at all, the evidence, submissions, law and that was adduced to prove that the 2nd appellant was not in contempt of the court order.v.THAT the learned magistrate erred in law and fact in failing to give sufficient reasons of directing the 2nd appellant to purge the contempt in the entire ruling when he had submitted that he had not disobeyed the court orders given on 9th October 2018.

5. The two appeals were directed to be heard together and to be disposed of by written submissions.

6. I have re-evaluated the arguments put forward before the trial court. I have further considered the rival written submissions plus the authorities cited. I think it is appropriate at this stage to set out the brief background of this appeal.

7. It is apparent from the record that on 19th April 2018 the 8th and 9th respondents gave notices to the 1st to 7th respondents to cease from trading outside the Nairobi City Market and to vacate the aforesaid market. It would appear also that the 1st to 7th respondents were forcefully evicted on 25th April 2018 by the 8th and 9th respondents and barred from conducting business outside the aforesaid market.

8. On 20th July 2018 the 1st to 7th respondents filed a suit before the trial court to challenge the eviction. They contemporaneously filed the notice of motion dated 20th July 2018 whereof they sought for inter alia orders of injunction to restrain the appellant, the 8th and 9th respondents from removing, harassing, discriminating and or evicting them form their place of work pending the hearing and determination of the suit.

9. Hon. P. N. Gesora heard the 1st to 7th respondent’s motion and on 9th October 2018 he delivered a ruling allowing the application. The 1st to 7th respondents thereafter took out the motion dated 24th October 2018 in which they sought to have the 8th and 9th respondents cited for contempt and be sent to civil jail.

10. When served with the aforesaid motion, the 8th and 9th respondents took out the motion dated 7th November 2018 whereof they sought for the review of the orders issued on 9th October 2018. The two applications were heard together. The 1st to 7th respondents motion was allowed while that of the 8th and 9th respondents was dismissed hence prompting the filing of this appeal.

11. Having set out in brief the background of this appeal, I now turn my attention to the substance of this appeal. Though the appellants put forward several grounds of appeal, those grounds can be summarized to two main grounds vizlyi.Whether the ruling delivered by Hon. P. N. Gesora on 9th October 2018 should have been reviewed and set asideii.Whether the 8th and 9th respondents were in contempt of courtiii.Who should bear the costs of the appeal.

12. On the first issue as to whether the ruling delivered on 9th October 2018 should have been reviewed. It is the submission of the 1st to 7th respondents that the motion seeking for review of the aforesaid orders was rightly dismissed by the trial magistrate. They averred that they demonstrated to the trial court that their application met the conditions for a grant of a temporary order of injunction.

13. They stated that they showed the irreparable loss they would suffer if the order for injunction was denied and that the balance of convenience tilted in their favour.

14. It is further the submissions of the 1st to 7th respondents that there was no error or mistake apparent on record to enable the court to make an order reviewing the ruling of 9th October 2018. They pointed out that in the circumstances the appellants should have appealed instead of filing an application for review.

15. The appellants on the other hand are of the submissions that there were errors and or mistakes on the face of record that were sufficient to have the decision reviewed and set aside. The appellant pointed out that the order sought to be restrained by an order of prohibitory injunction had already taken place before the filing of the suit and before the orders were issued. It is argued that the orders were untenable ab initio hence liable for review.

16. The applicable principles in determining an application for review are well settled; that is to say that where there is proof of discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decision was passed or on account of some mistake or error apparent on the face of records or for any other sufficient reason.

17. In his ruling Hon. P. N. Gesora stated that he considered the rival arguments and came to the collusion that there is no error apparent on the face of record therefore. I have re-evaluated the arguments put forward by the appellant before the trial magistrate and its clear on the face of it that he appellants stated that at the time of filing the suit and application the 1st to 7th respondents had already evicted.

18. There is sworn evidence that the respondents had been removed from the Nairobi City Market by 5th July 2018. It was pointed out that the court should not issue injunctive orders to restrain a past event or action. The learned chief magistrate did not address his mind over the issue but instead concentrated on the question as to whether the 1st to 7th respondents were lawful licensees operating within the market.

19. The question as to whether it was appropriate to grant an order of prohibitive injunction to restrain an event which has already taken place. It is trite law that a court of law cannot issue orders in vain.

20. With respect, I am convinced that there was an error apparent on record that is to say that the 1st to 7th respondents had already been evicted from operating from the Nairobi City Market before the suit was filed and before the orders for prohibitory order of inunction were issued. Such orders could not be practically effected because eviction had already been carried out. The learned chief magistrate therefore erred by dismissing the appellant’s application for review. The dismissal order must in the circumstances be set aside.

21. The second ground is whether the 8th and 9th respondents were in contempt of court. The learned chief magistrate in his ruling found held that the order he issued on 9th October 2018 was not obeyed. In essence the trial magistrate allowed the 1st to 7th respondents’ motion dated 24th October 2018 and proceeded to direct the Director Inspectorate to purge the contempt in two weeks.

22. It is the submission of the 1st to 7th respondents that the 9th respondent willfully and deliberately refused to comply with the court orders issued on 9th October 2018. It is said that orders had retrained the 8th and 9th respondents from removing, harassing, discriminating and or eviting them from the Nairobi City market.

23. It is the submission of the appellant, the 8th and 9th respondents that the orders were issued after the 1st to 7th respondents had been evicted. It is not in dispute that the 1st to 7th respondents were evicted by the 8th and 9th respondents on 25th April 2018.

24. With respect, I am persuaded by the appellant’s 8th and 9th respondents that the aforesaid orders could not be implemented. The acts sought to be injuncted had already taken place. The learned chief magistrate therefore erred in finding that there as disobedience of the court order issued on 9th October 2018. The order therefore finding the 9th respondent in contempt cannot stand. The same must be set aside.

25. The final issue is who should pay costs. In the circumstances of this case I think the principle costs follows the event should apply. The appellant, the 8th and 9th respondents being successful on appeal should be awarded costs.

26. In the end, I find the two appeals to be meritorious. They are allowed thus giving rise to issuance of the following orders:i. The order dismissing the appellant’s motion dated 7th November 2018 is set aside and is substituted with an order allowing the motion with costs to the appellant.ii. The order allowing the 1st to 7th respondents is set aside and is substituted with an order dismissing the aforesaid motion with costs to the 9th respondent.iii. Costs of the appeals are awarded to the appellant, 8th and 9th respondents.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. ....................J. K. SERGONJUDGEIn the presence of:………………………………... for the Appellant………………………………... for the Respondent