[2023] KEELC 22423 (KLR)

Kapere t/a Capere Enterprises (Suing in the public interest, on her own behalf and on behalf of 200 traders within Nyamlori Market in Kisumu City within Kisumu County, on behalf of approximately 2000 employees therein, on behalf of approximately 10000 auxiliary traders thereto and on behalf of approximately 100,000 dependants of all the foregoing, to the exclusion of those who may have sought reliefs in their own right) v Kisumu County Government & 5 others (Petition E001 of 2023) [2023] KEELC 22423 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22423 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Petition E001 of 2023

E Asati, J

December 14, 2023

IN THE MATTER OF: ARTICLE 2(6), 22(1), (2) & 3 (d), 23(1)& (3),162 (2) (b) and 165 (3) (a), (b) &(d) (i) &(ii) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 26 (1) & (3), 27(1), (2), (4) & 6; 28; 29 (c), (d) &(f); 35 (1) & (2); 40 (1) (a) & (b), (3) (b), (4) & (6); 43 (1) & (3); 47 (1) 7 (2); 50 (1); 53 (1) (b), (c ) & (d) & (2); 54 (a), (b) & (c ); and 55 (b) & (c ) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: SECTIONS 2, 3, 4, 5, 6, 7, 10, 11 and 12 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015 AND IN THE MATTER OF: PART I, II & III OF THE ACCESS TO INFORMATION ACT NO. 31 OF 2016 AND IN THE MATTER OF: INTERNATIONAL LAW INSTRUMENTS, INCLUDING BUT NOT LIMITED TO: 1. UNIVERSAL DECLARATION OF HUMAN RIGHTS AND 2. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) AND 3. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND 4. MAADTRICHT GUIDELINES ON VIOLATION OF ECONOMIC SOCIAL AND CULTURAL RIGHTS AND 5. UN-BASED PRINCIPLES AND GUIDELINES ON DEVELOPMENT BASED EVICTION AND DISPLACEMENT (2007) AND 6. AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS (AFRICAN CHARTER) AND IN THE MATTER OF: PUBLIC PROUNCEMENT BY THE GOVERNOR OF KISUMU COUNTY PETER ANYANG’ NYONG’O AND CITY MANAGER MICHAEL ABALA WANGA THAT NYAMLORI MARKET WITHIN THE CENTRAL BUSINESS DISTRICT OF KISUMU CITY IS TO BE DEMOLISHED AND TRADERS THEREIN COMPULSORILY RELOCATED TO UHURU MARKET AND IN THE MATTER OF: DISCRIMINATION AGAINST TRADERS AT NYAMLORI MARKET WITHIN THE CENTRAL BUSINESS DISTRICT OF KISUMU CITY AND IN THE MATTER OF: THREATENED DEMOLITION OF PROPERTY AND EVICTION AND/OR INVOLUNTARY DISPLACEMENT OF INFORMAL TRADERS AT NYAMLORI MARKET WITHIN THE CENTRAL BUSINESS DISTRICT OF KISUMU CITY

Between

Carren Awuor Kapere T/A Capere Enterprises

Petitioner

Suing in the public interest, on her own behalf and on behalf of 200 traders within Nyamlori Market in Kisumu City within Kisumu County, on behalf of approximately 2000 employees therein, on behalf of approximately 10000 auxiliary traders thereto and on behalf of approximately 100,000 dependants of all the foregoing, to the exclusion of those who may have sought reliefs in their own right

and

Kisumu County Government

1st Respondent

Kisumu City Board

2nd Respondent

Michael Abala Wanga Kisumu City Manager

3rd Respondent

Prof. Peter Anyang’ Nyong’o Governor Kisumu County

4th Respondent

Bovins Ochieng’ The Director Of Trade Kisumu County Government

5th Respondent

Kisumu County Attorney

6th Respondent

Judgment

1. Vide the Petition dated 27th January, 2023, Carren Awuor Capere t/a Capere Enterprises, the Petitioner herein, sued the County Government of Kisumu and various of its agencies who are named in the Petition as Respondents. The Petition is stated to have been brought in public interest on behalf of the Petitioner and on behalf of 200 traders within Nyamlori market in Kisumu City within Kisumu County on behalf of approximately 2000 employees there, on behalf of approximately 10,000 auxiliary traders thereto and on behalf of approximately 100,000 dependents of all the foregoing to the exclusion of those who may have sought relief in their own right.

2. The relief sought in the Petition is: -a.A declaratory order declaring that the Respondents herein, jointly and severally are in violation of, or threaten to violet the constitutional rights of the Petitioner and other traders within Nyamlori market as enshrined in Article 26(1) & (3), 27(1), (2), (4), & (6), 28, 29(c), (d) & (f), 35(1) & (2), 40(1)(a) & (b), (3)(b), (4) & (6), 43(1) & (3), 47(1) & (2), 50(1), (53) (1)(b), (c) & (d) & (2), 54(a), (b) & (c) and 55(b) & (c) of the Constitution of Kenya 2010. b.Judicial Review Order of Certiorari do issue to remove and bring before the Honourable court for the purpose of quashing the Statutory Notice referenced CGK/COK/ADM/VOL.1/1/2023 dated 20th January, 2023 and titled Re: Mass Resettlement of Traders at Uhuru Business Market Complex, issued by the Respondents herein, their agents and servants, jointly and severally with the intended effect of involuntary eviction and/or displacement of the Petitioner and any other traders from Nyamlori Market without strict adherence to the provisions of the Constitution of Kenya 2010 and relevant statutes.c.A conservatory order do issue to preserve Nyamlori Market and the economic activity therein, the subject matter of instant dispute in situ.d.In the alternative to prayer No.(b) immediately herein before, the Respondent be held liable to compensate the Petitioner herein and the other traders within Nyamlori Market and to further cause resettlement of the Petitioners herein and other traders within the Central Business District identified and prepared based on comprehensive and inclusive resettlement action plan developed in an open, transparent and consultative process that involves and considers the views and interest of the Petitioners herein and the other traders within Nyamlori market as the project affected persons (PAPs) based on approved Environment and Social Impact Assessment (ESLA) and socio-Economic Feasibility (SFF) study report.e.Costs of the petition be paid to the Petitioner by the Respondents, jointly and severally.

3. The Petition was supported by the contents of the Supporting Affidavit sworn by the Petitioner annextures thereto.

4. In response to the Petition, the Respondents filed a Memorandum of Appearance and Grounds of Opposition both dated 1st February, 2023 through the Office of the County Attorney, Kisumu County.

5. On 15th March, 2023 directions were taken by consent of Counsel appearing that the Petition be canvassed by way of written submissions. Pursuant to the directions, the Petitioner filed written submissions dated 17th April, 2023 while the Respondents filed written submissions dated 10th May, 2023.

The Petitioner’s Case 6. The Petitioner’s case as contained in the Petition and Supporting Affidavit is that the 1st and 2nd Respondents through the 3rd Respondent recently announced through the media and issued a purported Statutory Notice referenced CGK/COK/ADM/VOL.1/1/2023 dated 20th January, 2023 and circulated on social media that traders within Nyamlori Market, Apindi street, Garissa Lodge and Winam Booksellers among other groups of informal sector traders within the Central Business District of Kisumu would be relocated to Uhuru Business Complex by 31st January, 2023.

7. That the 4th Respondent who is the Governor of Kisumu County and as the head of the 1st Respondent had on 12th January, 2023 announced through a press statement that Uhuru Business Market Complex was intended for settling traders who were disposed during the revitalization of the port and upgrading of the railway line. That subsequent to a meeting held by the 3rd Respondent at Uhuru Business Market Complex rival violent gangs most of whom are not actively engaged in the informal sector within the Uhuru Business Market Complex have engaged in violent confrontation within Uhuru Business Market Complex precincts on several occasions fighting over control and use of the market spaces which fights have left scores injured and hospitalized with hacking and knife stabbing injuries, causing extreme fear and despondency among traders in the informal sector and members of public within Central Business District of Kisumu City.

8. That the process of resettling the traders at Uhuru Business Market Complex has failed to pick up in business, almost one year after the official opening because the location and design are not appropriate. That the traders who were allocated stalls have been forced to abandon them and go back to the streets in search of business.

9. That the right to allocate trading spaces within the Uhuru Business Complex is subject of litigation namely Kisumu HCCC. No. E006 OF 2022, Space Buster Limited –Vs- Kisumu City Board and County Government of Kisumu in which there is a valid court order of temporary injunction barring the Respondent from allocating the space. The petitioner contended further that the Uhuru Business Complex is therefore a risky and uncertain business environment for the market sensitive type of business carried out by the Petitioner and the other traders within Nyamlori Market. That Nyamlori market on the other hand remains one of the successful informal sector markets in the Central Business District and entire of Kisumu County.

10. The Petitioner contended that establishment of Nyamlori market was authorized by Resolution 109 of the Full Council Meeting of the defunct Municipal Council of Kisumu held on 31st January, 1997 and established in the year 2003 by the defunct Municipal Council of Kisumu.

11. That the Nyamlori Market currently has 200 stalls directly employing more than 2000 persons and is estimated to be providing livelihood to over 100,000 people including women, children and persons with disability and other vulnerable groups which is about 10% of the population of Kisumu County.

12. That the 4th Respondent in company of the other Respondents and its other relevant agents and servants conducted a visit to Nyamlori market on 30th July, 2022 during which he made remarks assuring the traders of Nyamlori market of security of tenure, upgrading of infrastructure and security at the market and support.

13. That the intention by the Respondents to move the Petitioners from Nyamlori market to resettle them en mass at Uhuru Business Market Complex is a serious threat to the sustainability of their business with far reaching effects on their social, socio-economic rights provided for in Article 43 of the Constitution. That the Respondents herein are jointly and severally in violation of and/or threaten to violate the constitutional rights of the Petitioner and other traders within Nyamlori market enshrined in articles 26(1) & (3), 27(1), (2), (4), & (6), 28, 29(c), (d) & (f), 35(1) & (2), 40(1)(a) & (b), (3)(b), (4) & (6), 43(1) & (3), 47(1) & (2), 50(1), (53) (1)(b), (c) & (d) & (2), 54(a), (b) & (c) and 55(b) & (c) of the Constitution of Kenya 2010. That the involuntary displacement of the Petitioners and the other traders from Nyamlori market has the eminent danger of negatively impacting on the constitutional socio-economic rights of over 100,000 residents of Kisumu city and that this removes the current dispute from being a purely private litigation to a public interest litigation.

14. That the Petition is a worthy case for issuance of a conservatory order to preserve Nyamlori market and the ongoing economic activities. That the Environment and Land Court has jurisdiction to hear and determine the petition pursuant to article 162(2)(b) of the Constitution of Kenya 2010 and Section 13 of the Environment and Land Court Act No.19 of 2011. That under article 23(3) of the Constitution of Kenya 2010, the court has jurisdiction to grant the appropriate relief as prayed for under proceedings brought under article 22 thereof.

The case of the Respondents 15. The Respondents’ case was contained in the grounds of opposition dated 1st February, 2023. The Respondents contended that the Petition is without merit and should be dismissed with costs. That the petition is based on hearsay, unfounded fears and dark imaginings. That no relevant and admissible evidence has been submitted. That under Section 5 of the Evidence Act Cap.80 of Laws of Kenya no evidence should be given in any suit or proceedings except evidence of the existence or non-existence of a fact in issue and any other fact declared by any provision of the Evidence Act to be relevant. That the fact in issues herein is whether the traders within Nyamlori Market should be relocated to Uhuru Business Market and whether that is valid and in accordance with the relevant laws of Kenya.

16. That the County Government of Kisumu is committed in supporting traders and has prioritized on market development in its emergency development plans by investing in the establishment of trading premises to house the informal traders and to create dignified trading spaces. That some of the market developed include Chichwa, Otonglo, Kibuye, Maendeleo Market and Uhuru Business Market in partnership with the National Government.

17. That the court should not aid a party who is guilty of contravention of an express and mandatory statutory stipulation that traders are not allowed to carry out business along walkways, road reserves, on drainage or near learning institutions according to the Physical Planning and Land Use Act No.13 of 2019 or who is a party to a contract which is illegal or contra-statute.That an interim committee consisting of leaders from different trading spaces including a representative from the special groups and human rights are incorporated to ensure that the resettlement action plan is open and transparent and a consultative process to ensure all views are taken to consideration. That the current petitioner is the beneficiary of stall No.12 on line 2 of row 2 at Uhuru Business market.

Submissions 18. Written submissions dated 17th April, 2023 were filed by Joshua Odhiambo Nyamori Advocate on behalf of the Petitioner. Counsel reiterated the facts of the Petitioner’s case as contained in the petition and Affidavit in Support of the petition and framed the issued for determination herein to be;a.Does the Petitioner have locus standi to bring the petition?b.Does the honourable court have the jurisdiction to entertain the petition?c.Does the petition raise issues bearing upon public interest?d.Do the acts or intended acts of the Respondents violate and/or threaten to violate the provisions of the Constitution of Kenya 2010 and the constitutional rights of the Petitioner and other traders within Nyamlori market and the public?e.What remedies are available to the Petitioner and the other traders within Nyamlori market and the public?f.Who pays the costs of the Petition?

19. On whether or not the Petitioner has the locus standi to bring the petition, Counsel submitted that the Petitioner sued because her rights as an individual are affected or threatened with contravention and in addition, the Petitioner has also instituted the proceedings herein;a.on behalf of other traders in Nyamlori market, their employees, customers, auxiliary and defendants who cannot act in their own names.b.in the interest of traders in Nyamlori market as a group or class of persons, and/orc.acting in public interest considering the place of Nyamlori market as a platform providing a conceptual and literal economic convergence between buyers and sellers in Kisumu City and beyond, together with its ripple effect on the auxiliary sectors and dependents of those direct and indirect players in the economy.

20. Counsel relief on the definition of public interest in Black’s Law Dictionary 8th Edition as the general welfare of the public that warrants recognition and protection or something in which the public as a whole has a stake specifically an interest that justifies governmental recognition.Counsel further relied on the provisions of articles 22 and 258 of the Constitution of Kenya to submit that the Petitioner has a right to institute court proceedings claiming that the Constitution has been contravened or is threatened with contravention. Counsel relied on the case of Lemeiguran & 3 Others –vs- Attorney General & 2 Others (2008) 3 KLR (EP) 325 where it was held inter alia that a generous and purposive interpretation is to be given to constitutional provisions protecting human rights. Counsel submitted that the Petitioner as a citizen of Kenya is entitled under article 3 as read with article 258(1) of the constitution to come to the defence of the Constitution.

21. On whether or not the court has jurisdiction to entertain the petition, counsel relied on articles 23(3) and 162(2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and the case of National Land Commission –vs- Aprison Export Limited & 10 others [2019] eKLR to submit that the court has jurisdiction to entertain the matter herein and grant the prayers sought in the Petition.

22. On whether the petition raises issues bearing upon public interest, Counsel referred the court to an Iranian Supreme Court decision in Dattraj Nathuji Thaware –vs- State [2004] INSC 744. S. C755 of 2004 where it was held that;“a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of community have a pecuniary interest or some interest by which their legal rights or liabilities are affected.The Petitioner also relied on the case of Hermanus Philipus Steyn –vs- Giovani Gnnechi Ruscone Sup. At Civil Application No.4 of 2012 in which the court defined what a matter of general and public important that would warrant the Supreme Court to exercise its appellate jurisdiction is.Counsel submitted that the instant case meets the threshold of being considered a public interest matter of general importance that warrants consideration by the court especially with regard to the prayers sought in the petition."

23. On whether the acts or intended acts of the Respondent violate or threaten to violet the provisions of the Constitution of Kenya 2010 and the constitutional rights of the Petitioner and the other traders within Nyamlori market and the public, Counsel submitted that the Respondent did not file any reply to the Petition and therefore did not submit any factual evidence to rebut the evidence of the petitioner.Relying on the case of Mirugi Kariuki –vs- Attorney General [1992] KLR 8 Counsel submitted that without any such rebutted evidence, the Petitioner has made out a prima facie case. Counsel urged the court to find that the petition as drawn and filed meets the threshold for a constitutional petition Counsel relied on the decision in Sella Rose Anyango –vs- Attorney General & 2 Others [2021] Eklr, Anarita Karimi Njeru –vs- Republic [1979] eKLR, Mumo Matemu –vs- Trusted Society of Human right Alliance & 5 Others [2013] eKLR and Thorp –vs- Holdswork (1876) 3 Ch. D. 637 for this submission.

24. On whether or not the relief under article 23(3) of the Constitution of Kenya 2010 may issue against the Respondents herein, Counsel submitted that the Petitioner’s pleadings disclose unrebutted prima facie case and satisfied the requirements for grant of the orders sought. Counsel relied on Article 3 of the Constitution to submit that the Petitioner herein is discharging the obligation to respect and uphold the Constitution. That the Respondents are in violation of the national values and principles or government as contained is article 10 of the Constitution.

25. Counsel submitted further that the Respondents are jointly and severally guilty of violating and/or threating to violate the Petitioner’s human dignity, their special value that is tied solely to their humanity and that has nothing to do with their class, race, gender, religion, abilities or other factor other than them being human in contravention of not only article 10 of the Constitution of Kenya but also the fundamental concept of human dignity in the Universal Declaration of Human Rights which provides at Article 1 that All human beings are born free and equal in dignity and rights and that the rights derive from the inherent dignity of the human person.

26. That the Petition pointed out the rights and fundamental freedoms in the Bill of Rights which the petitioner demonstrates in the petition and Supporting Affidavit to have been violated or threatened with violated to be those in article 27(1), 27(2), 28, 29, 35(1)(b), 40(1)(a) & (b), 40(3), 40(4), 43(1), 45(1), 47(1), 47(2)(a) of the Constitution of Kenya.

27. Secondly, that the petition is anchored on International Law Framework. On this Counsel submitted that application of international law is based on article 2(5) and (6) of the Constitution of Kenya 2010. That the provisions of International law and treaties or conventions ratified in Kenya have been neglected, denied and/or violated or are threatened with neglect, denial or violation by the Respondents as the intended involuntary displacement of the Petition and other traders from Nyamlori market is in contravention of the general rules of international law and the treaties or conventions ratified by Kenya. Counsel submitted that article 26 of the Venna Convention on the Law of Treaties provided that every treaty in force is binding upon the parties to it and must be performed by them in good faith.Counsel also relied on article 27 thereof which provides that a party may not invoke its internal law as jurisdiction for not performing a treaty and submitted that the Respondent neglected the international laws and treaties and wrongly invoked the provisions of internal law like the County Government Act, the Physical and Land Use Planning Act, 2019 and the Urban Areas and Cities Act.

28. Counsel relied on the provisions of Commission of Human Rights, Resolution 1993/77, UN doc (10 March, 1993) that the practice of forced evictions constitutes a gross violation of human rights in particular the rights to adequate housing.Counsel submitted that eviction in this case includes eviction from trading areas which has a direct impact consequence on the right to housing. Counsel also relied on the provisions of the Commission on Human Rights, Resolution 2004/28 UN DOC (16 April 2004) and submitted that the displacement of the petitioner and other traders at Nyamlori market violates this provision as the same is being undertaken without prior negotiation.

29. Counsel also relied on the provisions of articles 17(1) & (2) and article 25 of the universal Declaration of Human Rights on the right to own property and the right to a standard living adequate for the health and wellbeing of the individual and submitted that the actions of the Respondent violated or threatened to violate these rights.

30. Counsel further relied on article 2(1) & (2) and 11 of the International Convention on Economic, Social and Cultural Rights, (ICESCR), The Committee on Economic, Social and Cultural Rights General Comment 7, forced eviction and the right to adequate housing (Sixtieth Session 1977) para.4 U.N. DOC E/1998/32 annex.IV at 113(1998) reprinted in compilation of General Comments and General Recommendation Adopted by the Human Rights Treaty Bodies U.N. DOC HRI/GEN/1/REV/6 at 45(2003)on the definition of forced eviction and that for eviction to be justified, they must only be carried out in most exceptional circumstances.

31. That pursuant to the Committee on Economic, Social and Cultural Rights, General Comment 7, Forced Eviction, and the rights to adequate housing (Sixteenth Session/1997), U.N. DOC.E/1998/22 annex at 1131997 reprinted in compilation of General Comments and General Recommendation Adopted by Human Rights Treaty Bodies, U.N. DOC. HRI/GEN 1 1/REV.6 at 45(2003) at paragraph 14, the Respondent ought to have explored all the feasible alternatives to eviction but ignored to do so.

32. Counsel, submitted further that the Respondent violated the rights as contained in article 2 and 3 of the International Convention on Civil and Political Right (ICCPR) and article 17 thereof the Maastright Guidelines on Violation of Economic Social and Cultural Rights, the African Union Convention for the Protection and Assistance of Internally Displaced Person in Africa (the Kampala convention), Protocol on the Protection and Assistance to Internally Displaced Persons – the Great Lakes Protocol, the UN Basic Principles and Guidelines on Development Based Eviction and Displacement (2007), the Ocha Guiding Principles on Internal Displacement (UN Guiding Principles) and the African Charter on Human and Peoples Rights (African Charter).

33. On statutory and Regulatory Foundation Counsel relied on Section 152 B, 152 C, 152 F and 152 G of the Land Act, 2012 on the manner of conducting evictions. Counsel also relied on Regulation 63(1) and (2), 66, 67, 68 and 69(1) & (2) of the Land Regulations, 2017 (Legal Notice 280 of 2017). Counsel further relied on the provisions of the Prevention, Protection and Assistance of the Internally Displaced persons and affected Communities Act, 2012 to support the submissions.

Respondents’ Submissions 34. It was submitted on behalf of the Respondents vide the written submissions dated 10th May, 2023 that the issues for determination in the petition are;a.whether the petition meets the standard enunciation in the case of Anarita Karimi Njeru –vs- Republic (1976 – 1980) KLR 1278 requiring that constitutional petitions are pleaded with reasonable precision.b.Whether the acts and intended acts of the Respondents violate and/or threaten to violate the rights of the petitioner and the other traders within Nyamlori street and the public.c.Whether the petitioner should be awarded as prayed under part I of the petition.

35. Counsel submitted that the applicable law in this case include articles 40, 62, 159, 184 and 232 of the Constitution of Kenya 2010, Section 111 of the County Governments Act on City and Municipal plans, Section 20 of the Urban Areas and Cities Act, No.13 of 2012 on governance and management functions of a board and Section 24 thereof on management information and publicity and the Section 14,15,16 and 26 of the Public Health Act on penalty for unauthorized building over sewers or under streets.

36. Counsel submitted that the evidence by the Petitioner does not provide adequate particulars of the claims relating to the alleged violation of the Constitution of Kenya. That the petition before court has not been pleaded with precision as required in constitutional petition. That the petition and the Supporting Affidavit are based on hearsay, unfounded fears and dark imaginings. That the petition does not state the acts or omissions complained of with reasonable provision in relation to the alleged constitutional provisions violated.

37. On whether the acts or intended acts of the Respondents violated and/or threaten to violate the constitutional rights of the Petitioner and the other traders within Nyamlori street and public, Counsel relied on the case of Mumo Matemu –vs- Trusted Society of Human Rights Alliance and 5 others (2013) eKLR where it was held that;“(42)it is evident that a rationality standard by its very nature prescribes the lowest possible threshold for the validity of executive decision; it has been described by this court as the “minimum threshold requirement applicable to the exercise of all public powers by members of executive and other functionaries”. And the rationale for this test is “to achieve a proper balance between the role of the legislature on the one hand and the role of the courts on the other…..(43)……………the rationale basis test involves restraint on the part of the court. It respects the respective role of the court and the legislature. In the exercise of the legislative powers, the Legislature has the widest possible latitude within the limits of the Constitution. In the exercise of their power to review legislation, courts should strive to preserve to the legislature its rightful role in a democratic society. This applies equally to executive decisions”Counsel submitted that the Petitioner seeks for continued operations of business on Nyamlori street against the 1st Respondent’s directives and steps taken for development control as mandated under the Urban Areas and Cities Act No.13 of 2012.

38. That the claim that the actions of the Respondent are arbitrary hence contrary to article 27 and 29 of the Constitution of Kenya on equality and freedom from discrimination and the right to human dignity is unfounded.That the Petitioner and other traders were given sufficient Notice and provided with alternative market with necessary amenities hence the 1st Respondent respected the dignity of the traders.That in compliance with article 35 on access to information, the Respondent provided the traders with notices, press statements and public address with regard to the relocation.

39. Counsel submitted further that the claim based on article 40 of the Constitution cannot stand as the property in question is public land and subject to various legislations by the National and County Assemblies. That the Physical Planning and Land Use Act prohibits traders from carrying out business along walkways, road reserves, on drainage or near learning institutions. That Nyamlori street traders are currently operating in contravention of the provisions of the Physical Planning and Land use Act. Counsel relied on the case of Washington Jakoyo Midiwo –vs- Minister, Ministry of Internal Security and 2 Others (2013) eKLR support this submission.

40. Counsel submitted that the Petitioner’s claims based on article 43 and 53 of the Constitution are far-fetched and do not lie directly as a result of the directive to relocate the traders. Counsel submitted that the Petitioner is one of the beneficiaries of the new market that the Petitioner and other traders are required to relocate to. That the Petitioner has not demonstrated to the court that there is an actual case to show violation of article 54 and 55 of the Constitution of Kenya 2010.

41. As to whether the Petitioner should be awarded as prayed under part (1) of the petition, it was submitted that the Petitioner has brought her claim with a view of either undeservedly obtaining money from the Respondents on account of relocation or obtaining orders that she and the other traders of Nyamlori street retain their stalls at the Nyamlori street. That this is an issue of whether the decision by the Respondents to have the traders at Nyamlori street relocate to Uhuru Business market is merited under the law.Relying on the decision in Mumo Matemo –vs- Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR where it was held, inter alia, that;"…but the courts will hesitate to enter into the arena of merit review of a constitutionally mandated function by another organ of state that has proceeded with due regard to procedure…….”.Counsel submitted that the Petitioner has not shown to the court that indeed the rights of the public have been violated or threatened to be violated. That the Respondents have provided an alternative trading space with the necessary amenities. Counsel submitted that the petition lacks merit and prayed that the same be dismissed and costs be individually born by parties.

Issues for Determination 42. From the petition, Supporting Affidavit and annextures, Grounds of Opposition and written submissions filed, the following emerge as the issues for determination;a.whether or not the intended relocation of the Petitioner and other traders from Nyamlori market to Uhuru Business Market Complex is in violation of the rights of the petitioner and the other traders.b.Whether the Petitioner and the other traders are entitled to the relief sought.c.What orders to make on the costs of petition.

Analysis and Determination 43. The Petitioner’s complaint is essentially that the intended relocation of the traders at Nyamlori market and herself to Uhuru Business Market Complex was in violation or threatened violation of the constitutional rights of the petitioner and the other traders at Nyamlori Market as set out herein above. That the actions and omissions complained of are also in contravention of international law, treaties and conventions ratified by Kenya.

44. The Respondents’ position as set out hereinabove is that the decision to relocate the petitioner and the other traders was lawful and in accordance with the mandate of the 1st Respondent as provided for in the Constitution, the Physical and Land Use Planning Act, 2019, the Urban Areas and Cities Act and other laws.

45. Under the Fourth Schedule of the Constitution of Kenya 2010 on distribution of functions between the National Government and the County Governments, under part 2 paragraph 8 thereof, the function of County planning and development including statistics, land survey and mapping, boundaries and fencing, housing and electricity and gas reticulation and energy regulation is assigned to the County Government. Similarly, under paragraph 7, the functions of trade development and regulation, including markets and fair-trading practices is assigned to the County Government.Article 62(2) of the Constitution vests public land in and to be held by county governments in trust for the people resident in the county. Hence the functions of markets, planning and development are functions of the 1st Respondent.

46. The Physical and Land Use Planning Act, which makes provisions for the planning, use, regulations and development of land provides for details on planning, development control and establishes the liaison committees to handle complaints arising from planning and development control measures.

47. It is not denied that Nyamlori market is on public land within Kisumu city. It is common ground that a market has been developed by the 1st Respondent in conjunction with the National Government namely the Uhuru Business Market Complex where the Petitioner and the other traders at Nyamlori market are being asked to move to.

48. The Petitioner has not denied the contention by the Respondents that she is already allocated a stall at the Uhuru Business Market Complex. None of the other traders on behalf of whom the petition was claimed to have been filed denied the contention that they are beneficiaries of the Uhuru Market.

49. The Petitioner relied on international law, treaties and conventions ratified by Kenya, that among other things, prohibit unlawful evictions, and provide for the rights of Internally Displaced Persons. However, the facts of the petition present a case of relocation of the traders to the designated market place and not of eviction. The Statutory notice dated 20th January 2023 contained no threat of eviction. A copy thereof annexed to the petition shows that the purpose of the notice was to communicate the intention of the 1st Respondent to relocate traders from various trading points in Kisumu city to the Uhuru Market and the appointment of Interim Management Market Committee to oversee the process. The Notice shows that the membership of the Interim Management Market Committee included representatives of several groups and the affected markets. For Nyamlori Market two representatives were appointed namely: Maurice Onono and Sarah Awino Amimo. These representatives swore no Affidavit to support the complainant in the petition.

50. There is no question that the land on which Nyamlori market is situate is public land. As much as the traders have a right to carry out business and earn a living and a livelihood, this right does not confer upon the petitioner and the other traders any right to the public land. There is no complaint that the petitioner was not given notice of the decision to relocate her and the other traders to Uhuru Market, the complaint is that the Uhuru Market is a risky and unsuitable place for the business.

51. Though the petition is stated to be brought by the petitioner on behalf of other traders numbering about 200, employees numbering about 2000, about 10,000 auxiliary traders and 100,000 dependants, there was no evidence of this. All parties to litigation should be identifiable. Ownership of business by the other traders at Nyamlori Market was not demonstrated. Only a handful annexed copies of trade licenses to the application. There is no evidence that the other traders are aggrieved by the decision to relocate them.

53. I find that it has not been demonstrated that the Respondents have violated or threaten to violate the petitioner’s rights as pleaded in the petition. I also find that the grounds for grant of judicial review remedy of certiorari have not been proved. Similarly, I find that no case has been made out for compensation of the petitioner or the other traders.

54. For the foregoing reasons I find that that the petition lacks merit and is hereby dismissed. Each party to bear own costs. The petitioner has 60 days hereof to comply with the statutory Notice.Orders accordingly.

JUDGEMENT DATED AND SIGNED AT KISUMU AND DELIVERED THIS 14TH DAY OF DECEMBER, 2023 VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION.....................E. ASATI,JUDGE.In the presence of:Joshua Nyamori for the Petitioner.Odhiambo holding brief for Awuor for the Respondents.