[2019] KEELC 3895 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT ELDORET

PETITION NO. 4 OF 2018

IN THE MATTER OF ARTICLES 1, 2, 10, 22, 28, 40, 43, 47,

55,57 AND 186 OF THE CONSTITUION OF KENYA, 2010

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS

AND

FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS UNDER ARTICLES 28, 40, 43, 47, 55

AND

57 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE REGULATION OF SMALL SCALE TRADE,

LICENCING EXCLUDING PROFESSIONAL LICENCING

AND

FAIR TRADE PRACTICES IN UASIN GISHU COUNTY.

BETWEEN

ISAIAH KAMIRE AND 68 OTHERS......................................PETITIONERS

VERSUS

THE UASIN GISHU COUNTY GOVERNMENT.................RESPONDENT

RULING

This ruling is in respect of an application dated 23rd January 2018 by the petitioner /applicants and a preliminary objection dated 1st February 2018 by the respondents. The applicants sought for the following orders:

a)Spent

b)That interim conservatory orders do issue against the respondents to compel it to return all metallic stands of the petitioners which they use to display their wares, allow the petitioners to occupy the same trade area and/or stalls as initially allocated within the main Eldoret Bus park and the respondent do continue to collect the weekly fees as it has always done in the sum of Kshs. 180/ from the petitioners pending the hearing and determination of this application in the first instance and thereafter pending the hearing and determination of the petition.

c)THAT interim conservatory orders do issue against the respondent restraining it whether by itself its servants and/or agents from unlawfully evicting the petitioners or interfering with their economic activities at the respective designated areas or stalls at the Main Eldoret Bus Park in Uasin Gishu County and the respondent does continue to collect the weekly fees as it has always done in the sum of sh. 180 pending the hearing and determination of this application in the first instance and thereafter pending the hearing and determination of the petition.

d)THAT the costs of the application be provided for. The court considered the application under certificate of urgency and interim orders in-terms of prayers 1 and 2 of the application were granted pending the hearing of the application. The respondent was served and filed a preliminary objection dated the 1st February, 2018. The court gave directions that the application and the preliminary objection be conversed through written submissions which were duly filed. The court will therefore deal with the preliminary objection first because if it is allowed then there would be no need to determine the application.

Respondent’s Submissions on the Preliminary Objection

The Respondent filed a Preliminary Objection dated 1st February 2018 seeking the following orders:-

a)THAT this suit offend the provisions of Article 165 (3) of the Constitution of Kenya. b)That this suit offends the provisions of Section 13 of the Environment and Land Court Act CAP 12A of laws of Kenya. c)That this suit offends the provisions of Section 5 of the High Court(Organization and Administration )Act No. 27 of 2015 Laws of Kenya. d)That the suit and application is an abuse of the Court process as it does not raise any triable issues. e)That the petitioners’ petition and application herein are therefore frivolous, vexatious, scandalous, misconceived, bad in law and an abuse of the court process hence should be dismissed with costs.

Counsel agreed to canvass the application and the preliminary objection together vide written submissions. Counsel for the respondent submitted on the merits of the preliminary objection and relied on the celebrated case of Mukisa Biscuits Manufacturing Ltd Vs West End Distributors Ltd (1969) E.A 699which stated that preliminary objections must raise issues purely on a point of law. Miss Cheso Counsel for the respondent submitted that it is the Respondent’s contention that the suit offends Article 165 (3) of the Constitution, Section 13 of the Environment and Land Court Act and Section 5 of the High Court (Organization and Administration) Act No. 27 of 2015.

(3)Subject to clause (5), the High Court shall have—

a)unlimited original jurisdiction in criminal and civil matters; b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; c)jurisdiction to hear an appeal from a decision of a tribunal It was further Counsel’s submission that the Petitioners have not demonstrated that they have an interest or right over land which has been infringed as envisioned under the Land Act No. 6 of 2012 as follows:- a)Charge-interest in land securing payment of money. b)Co-tenancy-Ownership of land by two or more persons in undivided shares. Includes joint tenancy or tenancy in common. c)Easement-non possessory interest in another's land that allows the holder to use the land to a particular extent, either allowing or restricting the proprietor to undertake an act. d)Lease-consent with a without consideration by proprietor or land of the right to exclusive possession or his or her land. e)License-Permission given by the National Land Commission in respect of public land or proprietor in respect to a private or common land. f)Partition-separation by legal instrument of the shares in land or lease by owners in common. g)Squatter-A person who occupies land that legally belongs to another person without that person's consent. h)Profit a Prendre-a right to take from another person's land something that is part of the soil or is on the soil and is the property of the land owner. i)Adverse Possession- Nec vi, nec dam, necprecario the user must occupy without force, without secrecy and without consent. j)Common Law Prescription-claimant must show user of right from time immemorial which therefore lends the court to conclude, that this enjoyment has been on a basis of an ancient grant. Courts in the u.k have concluded proof of user of 20 years is sufficient.

Counsel also cited the provisions of Section 13 of the Environment and Land Court Act No. 19 of 2011 which states that:

1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land; 2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes

(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b)relating to compulsory acquisition of land; (c)relating to land administration and management; (d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e)any other dispute relating to environment and land.

(4)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.

Counsel submitted that the subject matter herein is a bus park, streets and verandahs. It was Counsel’s submission that that the Petitioner’s argument is that the license to sell and hawk goods in town establish a right over PUBLIC LAND. It was further Miss Cheso’s argument that this is absurd by its very nature and to allow the same will open a can of worms in terms of other members of the public issued with a license for example motor vehicles owner pay a fee to park vehicles on the streets all over Kenya, does this entitle them to a right over land? It was her submission that the dispute is purely commercial in nature and does not in any way concern the use of and occupation of land and as such this court does not have jurisdiction to deal with the suit.

Counsel cited John Beecroft Saunders where in his treatise headed Words and Phrases legally defined — Volume 3:1-N at page 113 about jurisdiction that:

‘by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a forma/ way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.’

Counsel therefore submitted that the court does not have jurisdiction thus the preliminary Objection should be allowed with costs.

On the application for conservatory orders Counsel for the respondent submitted that Article 23 (3 c) of the Constitution gives parties the right to seek redress in the event of a denial, infringement, violation or threat to rights and freedoms. The Constitution does not state the circumstances under which a Court may grant conservatory orders except it considers them as one of the appropriate reliefs that a court may issue when attending to a claim under Article 22 of the Constitution.

Counsel submitted that conservatory orders unlike injunction orders envisaged under Order 40 of the Civil Procedure Rules 2010 do not rely on the grounds set out in Giella vs Cassman Brown & Co. Ltd (1973) EA 358. Misss Cheso cited The Court of Appeal in Gaitaru Peter Munya vs Dickson Mwenda Kithinji& 2 others (2014) Eklr rendered itself thus:-

Conservatory orders bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies. as well as to uphold the adjudicating authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions linked to such private- party issues as "the prospects of irreparable harm "occurring during the pendency of a case: or "high probability of success" in the supplicants case . Conservatory orders, consequently, should be granted on the inherent merit of a case bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant case paragraph 86.

Counsel further submitted that the grounds which conservatory orders may be issued are as was stated inLipisha Consortium Ltd & another vs Safaricom Ltd (2015) eklr quoting the case of Kenya Small Scale Farmers Forum vs Cabinet Secretary Ministry of Education Science and Technology NBI HCCP No. 399 of 2015 eklr

a)The applicant must demonstrate a prima facie case with a likelihood of success and that he is likely to suffer prejudice as a result of the violation or threatened violation if the conservatory order is not granted; b)If the conservatory orders are not granted, the Petition or its substratum will be rendered nugatory; c)The Public interest favour a grant of conservatory orders d)Test for proportionality;

On grant of conservatory orders, Counsel cited the case of Centre forHuman Rights and Democracy and another vs The Judges and Magistrates Vetting Board and 2 others (2012) where the Court held:

“It was stated that under Article 23 (3c) of the Constitution the Court had powers to grant conservatory orders at any stage of the proceedings if it deemed fit to do so, but had to be satisfied with the credentials of the Petitioners, the prima facie correctness or nature of information available to Court, that the grievances are genuine, legitimate, deserving and or an appropriate, and the applicant had shown or demonstrated the gravity and seriousness of the dispute. A party is not supposed to engage in mild, vague indefinite or reckless allegations against the respondent.”

Counsel therefore submitted that from the perusal of the pleadings furnished by the Petitioner with specific emphasis to the supporting affidavit of Isaiah Kamire sworn on 23rd January 2018, that no proof has been furnished in the form of annextures sufficient to hold that the Petitioners rights are being violated. Further that a letter dated 8th April 2016 issued the Petitioners a temporary permit to operate on the mentioned areas for a limited 3 months period lapsed in August 2016.

It was Counsel’s submission that the Respondent has furnished documentation indicating over KShs. 1 billion was provided by the World Bank in partnership with the Government of Kenya to construct and renovate over six months available to the disposal of the hawkers herein who insist and persist in utilizing non-designated areas for their use to the detriment of members of the public.

That the Respondent is tasked under part 2 of the Fourth Schedule to the Constitution with several mandates in service to members of the public which mandate includes trade development and regulation. Counsel cited Section 3 of the Environment Management Co-ordination Act that sets out the environmental principle, tools to be used in interpretation and adjudication of environmental disputes as was held in Association of Manufacturers & 2 others vs Cabinet Secretary — Ministry of Environment and Natural Resources & 3 others (2017) eKLR

“Invariably, the environmental governance legal framework and any other legislative instrument (substantive or subsidiary), ought to be construed in a manner that promotes the letter and spirit of constitutional underpinnings and general principles in Section 3 of the EMCA.”

On the issue whether if the conservatory orders are not granted will the petition be rendered nugatory, Counsel submitted that prayer 2 on the face of the application is substantially similar to prayer c in the main Petition and as such it will not affect the substratum of the case as there exists six markets within the respondents locality ready for use at designated areas for hawking.

Miss Cheso also submitted that a court seized with an environmental dispute, must take note that it's Judgments and Rulings play a crucial role in promoting environmental governance, upholding the rule of Law, and ensures a fair balance between competing environmental, social, development and commercial interest. Further that the loss members of the public stand to suffer whose right to operate business and live in a clean environment are astronomical. Counsel buttressed this by the case of Association of Manufacturers & 2 others vs Cabinet Secretary — Ministry of Environment and Natural Resources & 3 others (2017) eKLR held:

“Grant of a conservatory order in the circumstances of this dispute would mean that, the offensive plastic bags continue to suffocate the environment to the detriment of the Kenyan population, while serving the commercial interest of a section of the plastic bags dealers. In my view, that would offend Kenya's constitutional and legal framework and management of the environment. That would also subordinate the public interest of the Kenyan people to the commercial interest of plastic bag dealers.

The application does not satisfy the criteria for grant of a conservatory order within the framework of Article 23 (3 c) of the Constitution, Grant of a conservatory order in the unique circumstances of this dispute would gravely undermine and derogate the precautionary principle which is a key pillar and legal tool in the country's environmental management framework.

Grant of a conservatory order in the circumstances of the present dispute would severely injure the public interest. Public interest in this regard is the general environmental welfare of the Kenyan people, which requires recognition and protection; the totality of their natural environment in which they collectively and individually have a stake which requires state protection.”

Counsel submitted further that the actions by the Petitioners to invade non-designated areas in spite of directions and regulations setting aside markets for their specific use is an illegality and their attempt to use this Court to sanction their illegal actions should fail, since an action which is void ab initio cannot be rendered valid and is beyond cure. .

Counsel relied on The Black's Law Dictionary, 9th Edition which defines public interest as:

"...the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justifies Governmental regulation". In litigating on matters of "general public importance", an understanding of what amounts to 'public' or 'public interest' is necessary. "Public" is thus defined: concerning all members of the community; relating to or concerning people as a whole; or all members of a community; of the state; relating to or involving government and governmental agencies; rather than private corporations or industry; belonging to the community as a whole, and administered through its representatives in government, e.g. public land.

It was Counsel’s submission that it would be an affront to justice if the people of Uasin Gishu County are to be denied access to a good environment or use of public spaces to protect the commercial interest of the Petitioners. Where national or public interest is denied over the self serving interest of a few people .as was held in the case of Kenya Guards Allied Workers Union v Security Guards Services & 38 Others, Misc. 1159 of 2003 where he expressed himself as follows:

"Where national or public interest is denied the gates of hell open wide to give way to deforestation, pollution, environmental degradation, poverty, insecurity and instability. At the end of the day, we must remember those famous words of a famous jurist-Justice is not a cloistered virtue. I must add that where justice is done and public interest upheld, it is acknowledged by the public at large, the sons and daughters of the land dance and sing, and the angels of heaven sing and dance and Heaven and Earth embrace. By upholding the public interest and treating it as twinned to the human rights we shall be able to do away with poverty eradication programmes and instead we shall have empowered our people to create real wealth for themselves. Public Interest must be the engine of the millennium and it must where relevant occupy center stage in the courts..."

Miss Cheso therefore submitted that it is in the public interest for the Petitioner to operate in the designated markets within Uasin Gishu County and not in the bus parks, main stages, fire lanes and verandahs.

Finally on the issue of the test for proportionality Counsel submitted that the principle obliges the court to balance two competing values and decide whether the measure has gone beyond what is required to attain a legitimate goal and whether its claimed benefits exceed the costs. That a key aspect of the principle of proportionality is whether a limitation on a right can be justified or is proportionate to the objective sought. Counsel submitted that in this current case the principle of proportionality favours dismissal of the application and use of the public markets by the Petitioners herein.

Counsel therefore urged the court to dismiss the petitioners’ application with costs to the respondent. Petitioners’ Submissions The Petitioners opposed the preliminary objection and stated that the court has jurisdiction to hear and determine the petition herein. Counsel cited the provisions of section 13 of the Environment and Land Court Act which states:

"The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162 (2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.”

Counsel submitted that the fact that the respondent has been collecting from the petitioners' a sum of kshs. 180 to occupy the land as is evident from the receipts attached to the affidavit in support of the petition connotes that a contractual relationship exists over the occupancy of the land and an interest has been created over land as provided for under section 13 (2) (d) of the Environment and Land Court Act, Cap. 12 A,

Counsel for the petitioner also submitted that the objections based on the provisions of the Constitution and section 5 of the High Court (Organization and Administration) Act, are misconceived and that the issues raised in the preliminary objection can only be canvassed through a trial. Counsel therefore urged the court to dismiss the preliminary objection with costs to the petitioners as it does not meet the threshold for grant of such orders.

Mr. Kigamwa Counsel for the petitioners submitted on the tenets upon which the court exercises jurisdiction for the grant of conservatory orders as was discussed in the authority in MUSLIMS FOR HUMAN RIGHTS (MUHURI) & 4 Others. v. INSPECTOR GENERAL OF POLICE & 2 others.,Mombasa . HC. Petition No. 62 of 2014as follows;

“The emerging principles for the grant of injunction or conservatory orders under the constitutional litigation, as I understand them, are firstly, that the applicant must demonstrate an arguable case - sometimes called prima facie arguable case the reference to arguable case distinguishing it from the prima facie test of the Giella v. Cassman Brown (1973) EA 385 traditionally applied in regular civil cases; secondly, that that the applicant must show that the petition would be rendered nugatory or that the damage that would be suffered in the absence of the conservatory order would be irreversible; and, thirdly, that in constitutional cases, the public interest in the matter would be considered and generally upheld.”

Counsel therefore urged the court to find that the petitioners have established and demonstrated that they are small scale traders engaging in the businesses within the CBD and that they also constitute the older members of the society and youths. That the petitioners engage in the afore-going activities in pursuance of their economic interests which are guaranteed by article 43 of the Constitution of Kenya, 2010. Counsel further submitted that the petitioners have by virtue of the said economic activities been able to eke a living, accumulated savings which have enabled them to be granted credit by micro finance organizations that are repayable weekly or monthly and the respondent by the mandate created by the legal structures through the Finance Act which impose a weekly charge to carry out the economic activities of the petitioners has established an expectation that the petitioners activities shall not be halted, adversely changed or altered to their disadvantage or rendered uneconomic to pursue with the intention of driving them out of the same. Counsel also submitted that the respondent has infringed on the rights of the petitioners by the fact that the :

a)The respondent's actions of evicting people en-mass militates against article 10(1), (2) (a),(b),(c) and (d) of the Constitution of Kenya, 2010 since the same is contrary to the rule of law, the objects of devolution, human dignity, social justice human rights, good governance and sustainable development.

b)The respondent's removal of the petitioner's amounts to arbitrary deprivation of property or an interest in it contrary to articles 40 and 43 of the Constitution of Kenya, 2010 as the petitioners have a legitimate expectation that they will operate the activities in return for the respondent collecting the weekly amounts as it has done the years.

c)The respondent's action of evicting the petitioners' amounts to an infringement of articles 43, 55 and 57 of the Constitution of Kenya, 2010 as it denies the petitioners an opportunity to associate and participate in the economic spheres of life, pursue personal development, to live in dignity and respect free from abuse.

d)The respondent's action is contrary to article 186 of the Constitution of Kenya, 2010 as it does not mandate the respondent to issue evict any persons without a court decree.

e)The petitioners activities remain lawful based on the fact that the Finance Act of Uasin Gishu has a provision for the charging of fees for small scale traders and petty traders thus until such a time the law is changed the respondent has no right to deny the petitioners an opportunity to engage in the trade activity that the county's budget allows and recognizes as an economic activity. Counsel therefore urged the court to allow the application with costs to the petitioners.

Analysis and determination This preliminary objection is based on the ground that this court does not have jurisdiction to hear and determine this petition. The principles to be considered when dealing with preliminary objections are now settled as per the Mukisa Biscuits Manufacturing Ltd Vs West End Distributors Ltd (1969) E.A 699 which stated that preliminary objections must raise issues purely on a point of law. Counsel for the respondent has argued that the suit offends the provisions of Article 165(3) of the Constitution, Section 13 of the Environment and Land Court Act and Section 5 of the High Court (Organization and Administration) Act No. 27 of 2015. When an objection touches on jurisdiction of a court, the court must first deal with that issue to determine whether it is clothed with the necessary powers to proceed or down the tools to allow another court or body to handle the matter. Counsel for the respondent in arguing the preliminary objection submitted that the section 5 of HCOA provides that the High Court has unlimited jurisdiction in criminal and Civil matters, jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened, and jurisdiction to hear an appeal from a decision of a tribunal. That the petitioners have not proved that they have an interest in land. This court derives its jurisdiction from the provisions of Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Court Act (ELC Act). Article 162(2) (b) of the Constitution provides as follows:

“(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to (b) the environment and the use and occupation of, and title to, land.”

Pursuant to the above Constitutional provision, Parliament enacted the Environment and Land Court Act which enumerates the jurisdiction of this court in detail. The relevant provision to the current Preliminary Objection is Section 13(2) of the Environment and Land Court Act which provides as follows:

“(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land.”

It should be noted that the jurisdiction of this court extends to the hearing of claims of violation of Constitutional rights and fundamental freedoms relating to the environment and land. The petitioners’ claim emanates from use of land and it is not disputed that the respondent collects money from them from the use of such land. The respondent also admitted that they had granted the petitioners the use of such land on a temporary basis which has since expired. The respondent cannot be heard to say that this court does not have jurisdiction to hear this suit on the basis that it is a commercial dispute. Section 13 of the Environment and Land Court Act is very clear on the mandate of the court as earlier alluded to. Before we move further it would be important to understand the meaning of the term “interest in the use and enjoyment of land”. This has been defined in the Black’s Law Dictionary, 8thEdition as follows:

“the pleasure, comfort, and advantage that a person may derive from the occupancy of land. The term includes not only the interests that a person may have for residential, agricultural, commercial, industrial, and other purposes, but also interests in having the present-use value of land un-impaired by changes in its physical conditions.”

The term “use of land” was further defined by the Court of Appeal in the case ofCo-operative Bank of Kenya Limited vs. Patrick Kangethe Njuguna & 5 others (2017) eKLRas follows:

“for land use to occur, the land must be utilized for the purpose of which the surface of the land, air above it or ground below it is adopted. To the law therefore, land use entails the application or employment of the surface of the land and/or the air above it and/or ground below it according to the purpose for which the land is adopted.”

The above case also dealt with the jurisdiction of Environment and Land Court and stated that it does not have powers to handle matters relating to charges. Does the claim by the petitioners fall amongst the interests defined above? My answer would be in the affirmative. The issue of jurisdiction of the Environment and land Court has been adjudicated in many cases in the Court of Appeal including the Supreme Court. The decisions have narrowed the jurisdiction of the Court in some instances but has also helped in clarifying the jurisdiction of the Magistrates’ Court in handling matters on land and environment. This was to help in decongesting the court as most disputes emanate from land related matters. Having said that I find that the preliminary objection on the issue of jurisdiction of this court to hear and determine the petitioners’ claim is misplaced and has no merit. The same is dismissed with costs to the petitioners. On the issue of conservatory orders, this court had earlier granted orders to the effect that the respondent do release the metallic stands and the goods confiscated to the petitioners of which the respondent had agreed to do so upon production of proper identification documents. The order for release still remains in force and should be implemented. I find that it would not be in the interest of justice and the public to grant conservatory orders at this juncture. The best that can be done in this petition is to order that it be fast tracked so that the main petition is heard and determined. Dated and delivered at Eldoret this 1st April, 2019

M. A. ODENY JUDGE Read in open court in the presence of Mr. Mugambi for the Petitioners and Miss. Kiptoo holding brief for Miss.Cheso for the Respondent. Mr. Koech – Court Assistant.