[2024] KEMSET 1050 (KLR)

Mbogo v Mwangi & 2 others (Tribunal Case E001 of 2024) [2024] KEMSET 1050 (KLR) (1 August 2024) (Judgment)

Neutral citation: [2024] KEMSET 1050 (KLR)

Republic of Kenya

In the Micro and Small Enterprises Tribunal

Tribunal Case E001 of 2024

J.Bett, Chair, R.Katina, J.Were, A Gikuya, A Kibet & JK Biwott, Members

August 1, 2024

Between

Jospeh Mbogo

Claimant

and

Joel Mwangi

1st Respondent

Kamukunji Juakali Association

2nd Respondent

Kiragu Macharia

3rd Respondent

Judgment

Introduction 1. The claim was filed under a certificate of urgency on the 3rd of April, 2024 and directions were issued therein. The Tribunal issued interim orders for the Claimant to serve the Respondents and a mention to confirm compliance with the directions was set for 3rd May 2024. The Respondents received the claim on the 9thof April, 2024, and filed their Responses on the 25th of May, 2024.

2. The Claimant filed his case and listed 5 prayers before the Tribunal. The Claimant also requested the Tribunal to visit the worksite to see how improper allocation was done in a biased manner. The Respondents filed their responses, annextures, and denied the allegations by the Claimant. In response to prayer number 7, the Respondents maintained that the Claimant remains evicted from the worksite as of 2nd March 2024.

Claimant’s Case 3. The Claimant via the Claim indicated that as a member of the Kamukunji Jua Kali Association, he had been allocated shed number 15 as his working site which he had been using for more than 25years until the 2ndand 3rdRespondents and three others displaced him by force from the site. He reported this matter to Shauri Moyo police station under OB30/2/3/2021where he was asked to return to the site but he was not welcomed back. His son David Kamau and himself on various occasions were instructed by the 2nd and 3rdRespondents not to work there again.

4. During cross-examination, the 1stRespondent’s Secretary General Tom Ogello relayed to the Tribunal that the Claimant was not sent away, but rather informed that he could not build on the workspace. The Claimant argued that the land was government land which had been subdivided and allocated to the members.

5. The Tribunal takes note of the letter dated 2nd April 2024 to the director, Micro and Small Enterprises Authority (MSEA) indicating that he had been unlawfully removed from his allocated shed and persistent efforts to reclaim his space from the 1st Respondent had been futile despite the intervention of the Chief’s office, Assistant and County Commissioner’s offices. He requested MSEA to expedite help the re-allocation of his workspace.

6. The Claimant’s prayers were as follows:a.The honourable court to give the Claimant back his worksite.b.The honourable court to evict the persons who had intruded and forcefully throwing him away from the worksite which he had been using for the last 25 years.c.The leadership of the 1st Respondent to pay him for the whole period he has not been working since they necessitated his forceful displacement from the working site and his business went down.d.Costs of the claim.e.Other appropriate remedy the tribunal may deem fit.

Respondents’ Case 7. The 1st Respondent filed a Response to the Claim dated 28th May 2024 and indicated that the Claimant was not a member of the 1stRespondent as his membership expired in 2017 and indicated that the Claimant had refused to renew their membership and did not want to work with his colleagues. They indicated that the Claimant wanted to build inside his workspace which was not allowed as per the association’s by laws and code of ethics agreement.They further added that the Claimant was not thrown out of the worksite but rather left silently on his volution.

8. The 1st Respondent’s Secretary General Tom Ogello swore under oath that the land though allocated to the members was not owned permanently by the member to do as he or she wished. He urged the Claimant to return and to renew his membership and that the 1st Respondent was in the process of processing new membership. He further added that as a show of goodwill to the Claimant, the 1st Respondent had waived any penalties/previous payments and was ready and willing to reinstate the Claimant’s membership once he renews his membership.

9. The Claimant in his response to the 1stRespondents’ Response to the Claim disagreed with the allegation that he had refused to renew his membership and indicated that since 2020, he had repeatedly tried to renew his membership with the 1st Respondent but due to the ongoing dispute on ownership of Shed 15 between the 2nd and 3rd Respondents, the Chairperson and Secretary General of the 1st Respondent refused to renew his membership.

10. On the issue of construction on his workspace, the Claimant confirmed that the worksite (shed 15) had been divided into a work and storage area and his intention was to construct a storage area for his goods and the 1st Respondents officials denied him a permit to do so. He indicated that the directive that worksite allotees are not allowed to build storage as strange as his other neighbours had already built the storage areas in their sheds.

Issues For Determination: 11. The Tribunal has perused the Claim and the Response by the parties. It has also perused the all the documents and annexure relied upon by the parties. It is therefore the Tribunal’s humble opinion that the following are the issues for determination:a.Does the Claimant have a claim to his worksite?b.Can the Tribunal evict the persons who evicted the Claimant from the worksite?c.Is the1st Respondent’s leadership liable to the Claimant for the period he has not been working on the worksite and if so, how much?d.Who should bear the costs of the suit; ande.Whether interests on (a) and (c) above should be allowed, and if so at what rates.

Determination Claimant’s Claim to the worksite 12. A worksite is allocated land given to a particular association for the furtherance of a particular purpose for use by its members. For one to have access to the worksite, one must be a bonafide and current member of the association. It is clear from all parties that the Claimant is currently not a bonafide member of the 1st Respondent by virtue of the evidence (written and oral) adduced by the parties. The 1st Respondent has welcomed the Claimant to renew his membership and as a show of goodwill also waived any penalties/unpaid membership fee for the accrued years, which to date has not been done therefore it is the Tribunal’s opinion that the Claimant has no right of claim to a worksite by virtue of him not being a member of the 1st Respondent.

13. It is important to note that on allocation of the worksite to a member, the member needs to follow the constitution of the association and the rules of engagement as directed by any written guidelines on the same. As much as the worksite is allocated, the land does not wholly belong to the member to do as they please, but it is rather allocated on the basis of membership and the rules or guidelines of the association- the land still belongs to the government and not to the member. It would be important for the 1st Respondent to have clear written guidelines (if the same are not available) on what one can and cannot do with their worksites to avoid any misinterpretation. These guidelines should be implemented uniformly to all members without bias.

14. In the event the Claimant opts to renew his membership, allocation of his workspace will be done by the management of the association in a fair and equitable manner.

Eviction of the 2nd and 3rd Respondents from the Claimant’s worksite 15. The Claimant states that he was forcefully displaced from his worksite by the 2nd and 3rd Respondents, a matter that the 1st Respondent disagreesbut rather indicates that they denied the Claimant his request to build on the workspace. The Claimant indicated that Shed 15 had been initially allocated to Erastus Ogola (now deceased), Stanley Irungu (now deceased) and himself. Sharing of worksites is a norm due to space constraints. The Claimant prays for the Tribunal to evict the 2nd and 3rd Respondents from the worksite, and it would be unfair to do so when the Claimant himself is not yet a bonafide member of the association. This is an internal matter that is best left to the management of the association on the Claimant’s renewal of his membership without the interference from the Tribunal.

Liability due to the Claimant on forceful eviction 16. The Claimant has indicated that he has not been working for the entire period since his forceful eviction and as a result, his business has gone down, and he seeks compensation from the 1st Respondent’s leadership. He has however not provided any evidence of the loss incurredas a result of his loss of the workspace or quantified.

17. In Hydro Water Well (K) Limited v Sechere& 2 others (Sued in their representative capacity as the officers of Chae Kenya Society) (Civil Suit E212 of 2019) [2021] KEHC 22 (KLR),Mativo J. held that the principal remedy under common law for breach of contract is an award of damages, with the purpose of damages being to compensate the injured party for the loss suffered as a result of the breach, rather than (except for very limited circumstances) to punish the breaching party. The intention was to place the Claimant in the same position as if the contract had been performed.

18. To successfully claim damages, it was held inMinister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) 449, theplaintiff must show that:(a)a contract exists or existed;(b)the contract was breached by the defendant; and(c)the plaintiff suffered damage (loss) as a result of the defendant's breach. The plaintiff ‘is not required to establish the causal link (between breaches of an agreement and damages) with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what could be expected to have occurred in the ordinary course of human affairs, rather than an exercise in metaphysics.

19. For the Claimant to be successful in his claim for damages from the leadership of the association, he would need to satisfy the three requirements. There is no contract that was brought before the Tribunal between the parties and there is unlikely to be one therefore a breach on the non-existentcontract renders the prayers null and void. Further, the Claimant has not shared any evidence of the loss he incurred as a result of the actions of the officials.

Costs of the Suit 20. Mr. Justice (Retired) Kuloba Judicial Hints on Civil Procedure, 2nd Edition, (Nairobi) Law Africa) 2011, page 94 stated: -“Costs are {awarded at} the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise…”At page 101 of the same book, Kuloba authoritatively states as follows: -“The law of costs as it is understood by courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs-the court has no discretion and cannot take away the plaintiffs right to costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course.”

21. The Claimant enforced his legal rights by bringing this matter to the Tribunal for determination. However, he had been requested by the 1st Respondent on numerous occasions torenew his membership which he did not- a right he chose to exercise. We do not find that the Respondents infringed on the Claimant’s legal rights and as such, all parties shall bear their own costs for the suit.

Orders 22. Flowing from the above reasoning, the Tribunal orders as follows:a.The management of the 1st Respondent to fairly allocate the Claimant with a worksite on renewal of his membership. Further, on request to renew the Claimant’s membership, the same should be done within due process without antagonising the Claimant.b.Allocation of a worksite to the Claimant on renewal of membership to be done equitably by the management of the 1st Respondent.c.The 1st Respondent’s leadership is not liable to pay any compensation to the Claimant for loss of income.d.Each party to bear their own cost.Those then are the orders of this Tribunal.

DATED AND DELIVERED VIRTUALLY THIS 1STAUGUST, 2024. Dr. J. BETT ..........................[CHAIRMAN]R. KATINA… .................[VICE-CHAIR]Hon. J. WERE....................[MEMBER]A. GIKUYA… ..........................[MEMBER}A. KIBET.......................... [MEMBER]J K BIWOTT………................……………MEMBER