[2020] KEHC 1230 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 39 OF 2020

JOHN ALUMA ODEYO..........................................1ST APPELLANT

JOSEPH ONYANGO BOLLO..............................2ND APPELLANT

VERSUS

KISUMU COUNTY GOVERNMENT..................1ST RESPONDENT

CITY MANAGER KISUMU COUNTY...............2ND RESPONDENT

RULING

The application dated 12th August 2020 was for an Interim Order of Injunction, restraining the Respondents from entering, taking over or trespassing onto or in any way interfering with the Appellants’ trade and work at KIBUYE MARKET, pending the hearing and determination of the appeal.

1. Secondly, the Appellants sought the stay of proceedings in the case of JOHN ALUMA ODEYO & ANOTHER Vs KISUMU COUNTY GOVERNMENT & ANOTHER, KISUMU CMCC NO. 239 OF 2018, until the appeal was heard and determined.

2. The Appellants, JOHN ALUMA ODEYOand JOSEPH ONYANGO BOLLOhad instituted proceedings on behalf of the KIBUYE MARKET TRADERS ASSOCIATIONand the KIBUYE MARKET TRADERS WELFARE ASSOCIATION. The proceedings were instituted at the Chief Magistrate’s Court at Kisumu.

3. The Appellants’ case was that over the last 50 years, they had been working at the Kibuye Market, uninterrupted.

4. At ground No. 2 in the application before me, the Applicants said that they were surprised when, on 10th August 2020, the 2nd Respondent Ms DORIS OMBARAnotified them that they had to move out by 14th August 2020 or they would face eviction.

5. It is that alleged verbal notice that prompted this application.

6. This court was informed that the Respondents had previously disobeyed Injunction Orders which had been granted by the trial court.

7. The Applicants said that the orders in issue had been served severally, “on the office of Doris Ombara.”

8. Notwithstanding the said service of the orders, Doris Ombara is alleged to have;

“…….. sent Council Askaris, goons

and journeymen to demolish our

Property.”

9. The Applicants exhibited pictures of the property belonging to traders. The pictures showed property which had been destroyed, and the Applicants asserted that the value of the said property was in Millions of Kenya Shillings.

10. At paragraph 9 of his supporting affidavit, John Aluma Odeyo said;

“THAT the demolition which took place

on the 7th June 2020 was illegal for the

following reasons

(A) The demolition was done at 10p.m

in the night up to 2a.m in the

morning.

(B) That there was no notice from the

County Government.

(C) There was no consent obtained

from the Court.”

11. In the face of those alleged actions of the 2nd Respondent, the Applicants filed an application before the trial court, seeking to have the 2nd Respondent cited for contempt of court.

12. When canvassing the application, the Applicants submitted that their appeal would be rendered nugatory if they were to be evicted before their appeal was heard and determined.

13. Citing the case of EQUITY BANK LIMITED Vs WEST LINK MBO LIMITED CIVIL APPEAL NO. NAI. 78 OF 2011, the Applicants drew this court’s attention to the following words of E. Githinji JA;

“It is trite law in dealing with 5 (2) (b)

applications the court exercises

discretion as a Court of first instance.

It is clear that rule 5 (2) (b) is a

procedural innovation to empower the

court entertain an interlocutory

application for preservation of the

subject matter of the appeal in order to

ensure the just and effective determination

of appeals.”

14. The purpose and intent of an injunctive order, pending the hearing and determination of an appeal, is the preservation of the subject matter of the appeal.

15. In this case, the appeal arose from the Ruling which the trial court delivered on 16th July 2020.

16. It is the Applicants’ case that the appeal would be rendered nugatory if they were evicted from the Kibuye Market before the appeal was heard and determined.

17. The Applicants submitted that the protection of citizens from forced evictions can be inferred from the Constitution and other legislations.

18. At paragraph 32 of their written submissions the Applicants said;

“Doris Ombara, the City Manager,

violated these requirements by the

International Community. According

to the Ministry of Lands, KENYA

guidelines on evictions of 2009, states

that;

‘Eviction must not take place

in bad weather, at night, during

festivals or religious holidays,

prior to election, during or just

prior to school examinations …..”

19. The Applicants went on to say that;

“It is therefore clear that the respondent

violated both national and international

guidelines on forced evictions.”

20. In answer to the application, the Respondents drew the court’s attention to the fact that the Ruling which the Applicants have lodged an appeal from, arose from the Applicants’ application in which they had asserted that the Respondents were in contempt of court, by evicting the Applicants.

21. The Respondents’ position was that they had actually complied with the orders of the court, as they had ensured that the Applicants were relocated to various other locations within Kisumu Town.

22. In determining this application, I first remind myself that it is an application that has been brought within an appeal arising from an interlocutory order.

23. The substantive case, was still pending before the trial court. Therefore, this court is obliged to carefully navigate its determination so as to ensure that there does not arise any embarrassment to the trial court when it will be called upon to determine the substantive case.

24. The Ruling that the Applicants have appealed from is dated 16th July 2020.

25. As the trial court noted, the Applicants herein had sought leave of the court to cite Doris Ombara for contempt of court. They had asked the trial court to order Doris Ombara to Show Cause why she should not be jailed for a period of six months.

26. As the trial court noted, the Applicants had asked the alleged contemnor be fined the sum of Kshs 1,000,000/=, as an alternative to serving a jail term.

27. It is common ground that on 3rd July 2018, the trial court had granted orders in the following terms:

“1) THAT a temporary order of

injunction do issue retraining the

1st Defendant/Respondent either by

themselves, their servants, agents

and or anyone deriving authority or

acting on their behalf from evicting the

Plaintiffs in particular, members of

Kibuye Traders Association trading

within the areas identified and marked

for construction of access roads and

parking and or demolishing their

structures or buildings situated within

the said areas for a period of Twenty

Seven (27) days from the date hereof.

2) THAT the Defendant to avail alternative

trading sites situated within Raila Hall

within Kibuye Market and Posta Grounds

between Star Hospital and United Mall

Kisumu to the said affected members of

the Plaintiffs’ association and undertake

all requisite logistics within 14 days

from the date hereof to enable them

relocate them by the 31st July 2018. ”

28. My reading of the said order is that for a period of 27 days, the 1st Defendant would be restrained from evicting the Plaintiffs.

29. During the first 14 days from the date when the injunction was granted the Defendant was required to finalize all the requisite logistics, for the purposes of having the Plaintiffs relocated to the specified areas.

30. The Plaintiffs were supposed to be relocated to the said specified areas by 31st July 2018.

31. On the one part, the Respondents say that the Plaintiffs were relocated; whilst on the other hand the Plaintiffs say that they had remained at the Kibuye Market.

32. As to whether or not the Plaintiffs were relocated is an issue which would have to be determined by the trial court, during the substantive trial.

33. However, I note that in the Memorandum of Appeal dated 21st July 2020, the Appellants stated the following as one of their Grounds of Appeal;

“2. THAT the Learned Trial Magistrate

erred in law and fact by failing to

find the eviction having been carried

out at night, was illegal and amounted

to impunity.”

34. None other than the Applicants are asserting that eviction had been carried out. Their complaint was that the eviction had been conducted at night.

35. Secondly, the Applicants exhibited pictures of their property, which the Respondents had destroyed.

36. My understanding is that it was because the Respondents had destroyed the Applicants’ property, and the Respondents had also evicted the Applicants, that the Applicants filed the application to have the Respondents cited for contempt.

37. By asking this Court to grant an injunction to restrain the Respondents from entering into and taking over the area which the Applicants were carrying on business, the Applicants appear to be saying that they were still in occupation of the places where they have been carrying on business all along.

38. If the Plaintiffs were still in occupation, that implies that the Respondents had not evicted them, at night or at all.

39. That would then appear to be wholly inconsistent with their assertions, concerning their inhumane eviction: for which the Applicants want the Respondents cited for contempt.

40. In a nutshell, I find that the evidence placed before the Court does not demonstrate a prima facie case with a probability of success, in the appeal before me.

41. I also hold the considered view that if the appeal were to succeed, that would imply that the Respondents or either of them were in contempt of Court. To hold them in contempt would imply that they had evicted the Applicants and also that they had destroyed property belonging to the said Applicants.

42. In effect, even if the appeal were to succeed, it would constitute confirmation that the Respondents had already taken over the suit premises. In the circumstances, I find that an injunction to restrain the Respondents in the manner proposed by the Applicants, would be an order in vain.

43. It is noted that in the Memorandum of Appeal, the Appellants sought, inter alia, the following order;

“(c) A declaration that eviction at night

violates the Constitution and that

the 1st Respondent should pay Kshs

20,000,000/= as compensation to

the Appellants.”

44. Implicit in that proposed order is a concession that the eviction had already taken place.

45. Secondly, the Applicants have indicated that they would be seeking compensation by payment of a quantified amount.

46. It therefore follows that if the appeal were to be successful, the Appellants are aware that they can be adequately compensated by payment of Kshs 20,000,000/=.

47. Considering that the Appellants can be adequately compensated, if their appeal were to be successful, I find that the Appellants have failed to satisfy one of the ingredients for the award of interlocutory injunctions.

48. Furthermore, I note that the injunction which the Respondents had allegedly flouted was to last for a specific period, during which time the Appellants were to be relocated to designated places.

49. My understanding of the facts which can be discerned from the record of proceedings, is that the Respondents may have assigned to the Appellants, spaces which were inadequate for use by all the Appellants.

50. If I am right in my said understanding, (and that can only be determined after evidence is tendered at the trial), I would expect the parties to explore the modalities of achieving a win-win resolution.

51. Meanwhile, the Appellants appear to have abandoned the prayer for stay of the proceedings in the trial court. I so find because the same was not canvassed.

52. In any event, I hold the considered view that it is in the best interests of all parties that the substantive suit be heard and determined on merit.

53. In the result, I find no merit in the application dated 12th August 2020. It is therefore dismissed, with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT KISUMUThis30thday ofNovember2020

FRED A. OCHIENG

JUDGE