[2015] KEHC 2884 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. 433 OF 2012

REPUBLIC…………...........…………………………..….........…..................……APPLICANT

VERSUS

CITY COUNCIL OF NAIROBI……......................................................................RESPONDENT

VINEYARD HOLDINGS LIMITED.....................................................1ST INTERESTED PARTY

DIRECTOR GENERAL,NATIONAL MUSEUMS OF KENYA.…....2ND INTERESTED PARTY

JUDGEMENT

Introduction

By a Motion dated 20th December, 2012, the ex parte applicant herein, City Market Stall Holders Association, seeks the following substantive orders:

An order of prohibition prohibiting the respondent from proceeding with eviction or relocation of the applicants from all that property known as L.R No. 209/1855/1 situated between Muindi Mbingu Street and Koinange Street within Nairobi city; or construction on the above property without the approval of the director general, National Museums of Kenya.

An order of mandamus compelling the respondent to comply with gazette notice No. 5024 of 2009 issued by the Minister of State for National Heritage and Culture, Legal Notice No. 37 of 2010 issued by the Minister of State for National Heritage and Culture, Legal Notice No. 5024 of 2009 issued by the minister of state for lands reverting the suit property to the City Council for public use as a market.

According to the applicant, it is a registered society with a membership of over 200 traders duly licensed to carry on business at the city market, on L.R No. 209/1855/1 wherein they conduct their businesses in permanent stalls within the city market situated between Muindi Mbingu Street and Koinange Street and have been paying rent lawfully.

According to the applicant, It was averred that all that property known as L.R. No. 209/1855, Nairobi, and covering approximately 1. 582 acres was reserved by the colonial government of Kenya for use as a municipal market and that sometimes in 1928, the colonial government of Kenya granted the said L.R. No. 209/1855, Nairobi to the then municipal corporation of Nairobi for a period of 99 years; from 1st August, 1928 to 1st August 2027, to hold in trust for the public and that the said grant contained a special condition that the municipal corporation of Nairobi as grantee shall use and permit the use of L.R. No. 209/1855, Nairobi as a municipal market, or for other municipal purpose.

Pursuant thereto, in the 1930s, a structure was put up for the market, the present day city market, on part of L.R. No. 209/1855, Nairobi for public use. The remaining portion was reserved for future extension of the market to accommodate an anticipated increase in the number of traders and consumers of their goods. It was contended by the applicant that it had conducted its business at the city market at all material times, subject to prior licensing, payment of monthly rents and compliance with other terms and conditions stipulated by the city council of Nairobi. However, sometimes in 1990s, the said L.R. No. 209/1855 was subdivided and two parcels created there from; L.R. No. 209/1855/1 and L.R. No. 209/1855/2 respectively though the use of the above parcels was subjected to the special condition aforementioned.

On 22nd December, 1992, Nairobi city commission purported to transfer L.R. No. 209/1855/2 to Market Plaza Limited for private developments; while L.R. No. 209/1855/1, Nairobi was left for the city market. To the applicant, the objective of the abovementioned subdivision was not clear until the transfer for L.R. No. 209/1855/2 aforesaid was undertaken. The said subdivision and subsequent transfer were not notified to the traders at the market or the public.

Following the above subdivision, Market Plaza Limited began constructions upon L.R. No. 209/1855/2 Nairobi which was reserved for extension of the city market though the said construction stalled after excavations forcing the City Council of Nairobi together with the traders at the market to hire China Road & Bridge Construction Company to fill the trenches abandoned by Market Plaza Limited. The said property which is almost neglected owing to poor maintenance is under use by a different entity, Metro-Park Limited as a car park.

It was contended that the foregoing irregular alienation and allocation of property meant for the city market alerted the applicant of such schemes by individuals to grab the entire market.

The applicant stated that, its officials were invited by the respondent to the office of deputy director of social services; whereupon they were informed by the respondent of plans to put up modern kiosks at the entrance of city market along market street and they were then told to relocate traders doing business in that area. Despite the applicant requesting to be supplied more and clear information/plans of the proposed development to be able to face its members, no such information was forthcoming. Instead, on 30th April 2009, the respondent served some of the applicant’s members with notices to relocate from their stalls within the city market which notices were to take effect from 1st May 2009, to 15th June, 2009 in order to pave way for the construction of new stalls.

It was contended by the applicant that the respondent and the 1st interested party did not afford it a hearing or explanations on the planned relocation before issuing the said notices and that the respondent and the 1st interested party did not provide the affected members with alternative business premises to enable them give way for the purported developments.

On the same 30th April, 2009, the respondent in collusion with the 1st interested party served the applicant with a promissory note providing that those who operated their businesses from within the city market would be given priority subject to them paying rents and signing new tenancy agreements. However, the said promissory notes gave no assurance/guarantee that those affected would return to their stalls within the city market. It was the applicant’s case that by the said promissory notes, it was apparent that the respondent and the 1st interested party intended to demolish the stalls which comprise the city market with the view of constructing on the property, contrary to their representations to them on the space to be developed and the nature of structures to be put up. To the applicant, through its said decision, the respondent was attempting to terminate tenancies of the said members without a hearing or due process.

On 15th May, 2009, the applicant further wrote to the respondent requesting to be furnished with information on the proposed development, but the respondent has refused and or neglected to provide the information sought. It was the applicant’s case that the area which they occupied comprised an undeveloped part of the city market comprising the entrance and a loading/offloading zone and that the respondent and the 1st interested party intended to clear that space of some traders to enable them put up what they referred to modern kiosks in the nature of temporary shelters despite the fact that the temporary shelters proposed to be construction by the respondent and the interested party within the city market are not permitted within the Central Business District and their construction would thus be unlawful.

Since that part of the city market proposed by the respondent and the 1st interested party for the shelters also serves as a collection point by the respondent for enormous garbage from the market, it was contended that its blockage would thus affect business operations at the market as the respondent and the 1st interested party did not provide an alternative space for loading and offloading goods.

To the applicant, since the respondent’s decision herein bears consequence upon their businesses and livelihoods and those of their families if implemented, the same contravenes their legitimate expectation of fair administrative action.

The applicant disclosed that on 22nd May 2009, the Minister for State for National Heritage and Culture, through Gazette Notice No. 5024 of 2009 declared as a monument, all the building known as the city market and the surrounding compound on L.R No. 209/1855/1 situated between Muindi Mbingu Street and Koinange Street and on 4th March, 2010 confirmed the above gazette notice through legal notice No. 37 of 2010.

It was further contended that on 26th November, 2010 the registrar of titles, Nairobi through gazette notice No. 15580 of 2010 issued a notice revoking private titles alienated from L.R. No. 209/1855/1 which was reserved for city council to be used as a public market. To the applicant, the unlawful and illegal transfer of L.R. No. 209/1855/1 to private persons leading to the said revocations and consequent restoration of the titles to the respondents for use by the public, is part of the wide scheme by the respondent in collusion with the 1st interested party to evict them from the city market for personal/private gain and based on information from what it termed credible sources within the city council, it contended that the respondent is colluding with the 1st interested party and other interested in the market to further subdivide the market for private developments in violation of the law and in order to frustrate it.

The applicant was therefore apprehensive that if the above scheme by the respondent is implemented as threatened, the applicant in particular and the public in general will be deprived of their enjoyment and use of the city market as happened with L.R. No. 209/1855/2, against the guarantees of the law and the above gazette notices. To it, the respondent, by its decision and conduct herein, intends to get rid of it from the city market in satisfaction of individual interests contrary to the law and fairness, unless prohibited and that it in fact deliberately created confusion on the part of the city market it needs for the proposed construction/renovation in order to evict and or relocate the applicant therefrom in violation of the law/due process.

To the applicant, the agreement between City Council of Nairobi and Vineyard Holdings Limited is thus not an ordinary one of a construction or renovation tender as purported; but a lease conferring leasehold interests in all that property known as L.R. No. 209/1855/1 Nairobi, which is a public market in the custody of City Council of Nairobi, to Vineyard Holdings Limited for a period of ten years. By the said lease, it was agreed and intended that Vineyard Holdings Limited takes actual full control of the suit premises in exclusion of the applicants and the public in general for whose use and benefit the property was intended by the original grant, and to earn profits there from. The said lease, according to the applicant is due to terminate in 2017, a few years to the expiry of the initial grant by the colonial government of Kenya over L.R. No. 209/1855 to Nairobi City Council.

The applicant disclosed that in pursuance of the aforementioned leasehold over L.R. No.209/1855/1, Vineyard Holdings Limited sought to construct a storey building inside the dome (infill) where the market stands and in order to achieve this, Vineyard Holdings Limited in collusion with Nairobi City Council attempted to cunningly evict traders from their stalls for which they had paid rental and license charges to pave way for demolitions. These acts of subdivision and the subsequent leasing of the city market to a private entity in its view, were irregularly, illegally and secretly undertaken and the fact that the traders were not offered alternative places to relocate as purported, showed that the whole plan was actuated by malice and bad faith.

It was its case that at the time of the lease to Vineyard Holdings Limited, the suit property was under use as a public market, which was the sole objective of its grant from the colonial government of Kenya; and was therefore unavailable for appropriation to a private entity, or for a private use or profit. It was therefore contended that the purported lease to Vineyard Holdings Limited was void since Nairobi City Council was a mere trustee of the subject properties on behalf of the public and could not act to divest the public of it as planned. It was the applicant’s case that the irregular, illegal and unlawful lease herein will further deprive the public and the traders of the use of L.R. No. 209/1855/1 as a public market, unless prohibited.

It was disclosed that as a result of the irregular and illegal allocations herein, the registrar revoked titles to both L.R. No. 209/1855/1 and L.R. No. 209/1855/2 unlawfully in private hands vide gazette notice No. 15580 of 26th November, 2010, and returned the properties to the public for use as a market or for any other municipal use. Despite the fact that the revocation of title L.R. No. 209/1855/1 comprising the city market has not been challenged, the respondent and the 1st interested party herein hatched a plot to defeat the objective of the said revocation by way of the foregoing lease, which is illegal and does not deserve the protection of the law. Apart from the lease and the proposed construction, the respondent and the 1st interested party have been putting up unlawful structures at the city market on spaces reserved for toilets, loading/offloading bays and fire exists and this has congested the market and made it hazardous for the traders and the public.

It was contended that the directive by the then Minister of State for National Heritage and Culture vide Gazette Notice No. 5024 of 22nd May 2009, to which no objection was raised prohibits any structural developments on the premises constituting the City Market like proposed and intended by Vineyard Holdings Limited in pursuance of the lease, as this will change its nature as a monument hence the actions and conduct of the respondent and the 1st interested party herein violate the law and are against public interest hence should be prohibited.

The Court was therefore urged to exercise its discretion in the advancement of public interest, good governance and the rule of law by granting the prayers sought in the application herein with costs.

Respondent’s Case

In response to the application, it was contended by the Respondent that the applicant has no locus standi to institute the suit herein because it is not an entity known to law.

It was its position the suit stalls were issued to the purported members of the applicant in their own individual capacity and that the relationship between members of the applicant and the respondent is contractual relationship of landlord and tenant that relates to L.R. No. 209/18855/1 which fact the applicant has not disputed.

The Respondent explained that regarding the genesis of the dispute herein, the respondent advertised tender for renovation of City Market including the City Market (infill project) on L.R. No. 209/1855/1 and that the 1st interested party herein was awarded the tender for the renovation of the City Market (infill) and the respondent entered into a contract with the said 1st interested party on 22nd May 2007. As confirmed by the applicant in the verifying affidavit, during a meeting held on 16th April 2009 by the respondent, the representatives of the applicant were informed of the planned renovation to be undertaken on L.R. No. 209/1855/1 and they were additionally informed that they would have to relocate for a period of approximately 1½ months and after completion of the proposed works, they would be given the first priority to occupy the new stalls. On 30th April 2009, pursuant to the meeting held on 16th April 2009, the respondent issued each of the affected traders with a notice to vacate together with promissory notes assuring the traders that once renovation was completed, they would be given the first priority.

To the respondent, the validity of the notices dated 30th April 2009 have not been challenged to date by the applicant and the allegations of facts contained at paragraphs 28 to 32 of the verifying affidavit sworn by Meshack Mbutia Macharia hold no truth, are malicious, unsubstantiated and are merely scandalous. Contrary to the said allegations, the respondent has no intention of transferring the property to private persons or subdividing it for private development. However, the renovations intended to be done are to benefit the tenants within the suit property.

It was contended that the respondent is the custodian of all public land and property on L.R. No. 209/1855/1 by virtue of the Local Government Act which clearly gives the respondent the mandate to establish, maintain, let and manage public market buildings and the respondent’s action were done within the law. In its view, the declaration of the City Market as a monument by the Minister of State for National Heritage and Culture under the provisions of The National Museum and Heritage Act does not affect the proposed renovations as the said declaration is only concerned with already existing commercial building on LR No. 209/1855/1.

It was therefore the respondent’s case that the remedy of judicial review sought herein does not lie and is not available to the applicant and the application herein is misconceived, bad in law and a blatant abuse of the court process and should thus be struck out in limine.

2nd Interested Party’s Case

According to the 2nd Interested Party, it was the authority charged with the management and conservation of monuments within the Republic of Kenya on behalf of the public for the benefit of the present and future Kenyan generations and pursuant to that mandate, in gazette notice No. 5024 of 22nd May, 2009 the then Minister of State for National Heritage declared city market to be a “monument” within the meaning of the Act which status was later confirmed in legal notice No. 37 of 2010 after the period for objection had long expired. To the 2nd interested party, it continues to hold the said City Market as a monument for the benefit of the Kenyan public and in so doing, unless it has ownership rights conferred to it, the 2nd interested party neither interferes with ownership nor does it interfere with tenancy arrangements between the owner and tenants. According to it, among the conservation measures undertaken by the 2nd interested party is to ensure that any anticipated development on a gazetted monument is within acceptance standards and that negative effects are minimized. It also ensures that any proposed developments do not interfere with the façade, appearance, style and character of a building and that it is in harmony with the existing built environment.

It was its position that under National Museum and Heritage Act, the 2nd interested party’s advise must be sought whenever any site or monument is ear marked for development, which includes but not limited to extension, expansion, improvement, modification, alteration and beautification. It was contended that any attempt by the respondent and the 1st interested party to expand, improve, modify, alter or beautify the city market being gazette monument without prior consultation with the 2nd interested party will radically change the architectural, monumental and historical value consequent whereof the 2nd interested party as the authority charged with the conservation of the monument will suffer extreme setbacks in its conservation efforts; the public at large on whose behalf the monument is conserved stands to suffer. In its view, the prior approval from the 2nd interested party herein should be sought to ensure:

That any proposed developments meet building and construction works regulations normally guided by the Building Code of 1968 as well as the built environment act.

All developers are to submit a written write up on the development proposals, which proposals include architectural plans and structural details for the 2nd interested party’s scrutiny and approval.

Approval may be grated without or with conditions which have to be met before commencement the date and period of execution should then be communicated to the 2nd interested party’s conservation office for record keeping and to allow for periodic inspections. Approval by the conservation office ensures that the following aspects are complied with;

Access (by disable persons) in and out of the building are complied with

Health, safety, firefighting equipment, installation and fire escape mechanisms.

Environmental aspects such as ventilation, natural lighting, pollution (unwanted fumes and emissions) noise, nuisance, vibrations (from installations such as generations and pumps) structural stability (direct and wind load0, general atmosphere of the end-user, improvement of the economic value facility.

Upon compliance of the above mentioned aspects, the 2nd interested party issues a “NO OBJECTION” letter to the developer for submission to the relevant local authority for issuance of development.

That in this particular instance, the 2nd interested party contended that the developers, to wit the respondent and 1st interested party, by falling to initiate consultations with the 2nd interested party on the conservation aspects contravened the relevant approval procedures and without approval by the national museum of Kenya under the national museum and heritage act No. 6 of 2006 any proposed works of any nature whatsoever on the said premises is in violation of the law and void ab initio.

It was the 2nd interested party’s position the council is aware of the gazettement of the said premises as a national monument and in fact no less than the former town clerk advised its department on the said fact and hence the continued disregard of the law and senior direction, smirks of impunity, which acts need to be stopped by this honourable court.

1st Interested Party’s Case

The 1st Interested Party was of the view that the ex parte Applicant has not disclosed in its application that it had filed another application in Misc. Application No. 313 of 2009 B (Nairobi City Market Stallholders Association –vs- City Council of Nairobi & Another) in which the mater directly and substantially in issue in the said application is the same that is directly and substantially in issue in this case which application was heard and determined by this honourable court (Hon. Lady Justice Githua) through a judgment delivered on 16th October, 2012, just a few days before this application was filed. The only difference between this application and the earlier one was that the 1st Interested Party who was not a party in the previous proceedings has been enjoined in these proceedings and an order mandamus is now sought which had not been sought in the earlier proceedings. It was therefore contended that this application is res judicata.

According to the 1st interested party, the property known as L.R. No. 209/1855/1 situated between Muindi Mbingu and Koinange Streets belongs to the Respondent and on the said property the Respondent has developed a storeyed commercial building containing various shops that is commonly known as “City Market” while outside the main building on what is commonly known as the “infill” there are other structures containing stalls which the Respondent has leased out to various business people.

Sometime in the year 2005 the Respondent decided to partner with the private sector to develop its various markets in Nairobi with the aim of mobilizing resources and accessing skills from the private sector for the development of the facilities along the private/public sector partnership strategy and in that arrangement the Respondent was to avail land for the market projects and accord the private investors necessary technical and other facilitation as they would require while the private investors would source the capital and develop the markets which would then be leased to them on the Build Operate and Transfer (BOT) basis. Pursuant thereto, a notice in the Daily Nation dated 17th November, 2005 was placed by the Respondent inviting interested parties to express interest in development of the various markets in the City including the City Market (infill). Since the said invitation failed to elicit much interest and as no responsive bid seems to have been made, by another notice in the Daily Nation of the 24th May, 2006 the Respondent re-advertised the same and the 1st Interested Party tendered for the City Market (Infill) project.

It was contended that the tenders were evaluated by the Tender Committee of the Respondent in a meeting held on the 5th April, 2007 and that bid by the 1st Interested Party was found to be responsive and the tender for the City Market (Infill) was awarded to them. Pursuant thereto, the Respondent issued a letter of offer dated 23rd April, 2007 to the 1st Interested Party for the project which was duly accepted and thereafter, the formal Contract Agreement and Conditions of Lease of City Council Market (Existing Infill Market) was entered into between the Respondent and the 1st Interested Party. However it was clarified that the aforesaid contract was only in respect of the infill of the market and not the already existing market building and it was an express term of the contract that the 1st Interested Party would commence construction works on obtaining the necessary authority and on being permitted to do so by the Respondent. It was also agreed that to facilitate the construction the Respondent would be required to hand over the site to the 1st Interested Party for which purpose the Respondent was to identify an alternative site to relocate the traders who would be affected by the construction and would be given a first priority of being allocated new stalls once the construction was completed.

Pursuant to the said agreement the 2nd Interested Party engaged the services of architects and planners who developed the necessary building and construction plans which were duly approved by the Respondent on 28th January, 2008 in readiness to commence the construction works. However, the Respondent has todate been unable to handover the site to the 1st Interested Party despite repeated requests to do so due the fact that the Respondent had not made alternative arrangements to relocate the traders even though the 1st Interested Party had offered to construct temporary stalls for them on the neighbouring plot as they awaited the completion of the construction works.

It was disclosed that to resolve this impasse a meeting was held at the site on 16th April, 2009 between the representatives of the Applicant, officers from the Social Services and Housing Department of the Respondent and the 1st Interested Party whereby it was agreed as follows:-

a. the traders would relocate from the site within a period of 1½ months with effect from 1st May, 2009 to 15th June, 2009.

b. the 1st Interested Party would give a personal undertaking to each of the affected traders that it would give them a first priority to allocate them stalls once the redevelopment had been completed.

According to the 1st Interested Party, it was on the basis of the foregoing that the Notice to Vacate dated 30th April, 2009 and the Promissory Note were issued to the affected traders by the Respondent and the 2nd Interested Party respectively. It was therefore contended that contrary to the allegations made by the ex parte Applicant they were duly accorded a hearing on the matter and indeed agreed to relocate and await completion of the construction works so that they would return to the redevelopment site. To the 1st Interested Party, the Respondent is empowered by the Local Government Act to manage the markets and market buildings within its area of jurisdiction and award tenders for development of such as it did with the 1st Interested Party.

To the 1st Interested Party the ex parte Applicant is not entitled to the order of prohibition sought in the current application.

With respect to the order of mandamus it was of the view that the declaration of the City Market as a monument by the Minister of State for National Heritage and Culture under the provisions of Section 25(1) (b) of the National Museums and Heritage Act does not affect the proposed redevelopment as the declaration is concerned only with the commercial building that already exists on the premises which is the only thing that is capable of being declared as a monument and does not affect the infill section where the project is planned. The foregoing notwithstanding it was clear under the agreement between the Respondent and the 1st Interested Party that the Respondent would obtain the relevant authorizations required to facilitate the commencement of the works that the 1st Interested Party would carry on the premises. In its belief, the Respondent will therefore obtain the consent (in any) of the 1st Interested Party for the project.

It was contended that the ex parte Applicant is not entitled to the order sought for mandamus as it has not made any demand either to the Respondent or to the 1st Interested Party prior to making a claim for the same in these proceedings the Applicant does not have a sustainable case for the relief sought and its application should therefore be dismissed with costs.

Determination

Having considered the foregoing.

It was contended that the applicant as an association has no locus to bring these proceedings. I on this issue wish to quote the holding in Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010, in which the Court expressed itself as follows:

“over time, the English Courts started to deviate and depart from their contextual application of the law and adopted a more liberal and purposeful approach. They held that it would be a grave lacuna in the system of public law if a pressure group or even a single spirited taxpayer, were prevented by an outdated technical rules of locus standifrom bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The strict rule of locus standiapplicable to private litigation is relaxed and a broad rule is evolved which gives the right locus standito any member of public acting bona fideand having sufficient interest in instituting an action for redressal of public wrong or public injury by a person who is not a mere busybody or a meddlesome interloper; since the dominant object of Public Interest Litigation is to ensure observation of the provision of the constitution or the law which can be best achieved to advance the cause of the Community or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration, but acting, bona fideand having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like action popularisof Roman Law whereby any citizen could bring such an action in respect of public delict. Standing will be granted on the basis of public interest litigation where the petition is bona fideand evidently for the public good and where the Court can provide an effective remedy… In Kenya the Court has emphatically stated that what gives locus standiis a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population. The court equally has recognised that organisations have rights similar to that of individual private member of the public. A new dawn was the ushered in and the dominion of Private Law and its restrictive approach was dealt a final blow. A new window of opportunity emerged in the area of Public Law and shackles of inhibition in the name of locus standiwere broken and the law was liberalised and a purposeful approach took the driving seat in the area of Public Law. In human rights cases, public interest litigation, including lawsuits challenging the constitutionality of an Act of Parliament, the procedural trappings and restrictions, the preconditions of being an aggrieved person and other similar technical objections, cannot bar the jurisdiction of the court, or let justice bleed at the altar of technicality. The court has vast powers under section 60 of the Constitution of Kenya, to do justice without technical restrictions and restraints; and procedures and reliefs have to be moulded according to the facts and circumstances of each case and each situation. It is the fitness of things and in the interest of justice and the public good that litigation on constitutionality, entrenched fundamental rights, and broad public interest protection, has to be viewed. Narrow pure legalism for the sake of legalism will not do. We cannot uphold technicality only to allow a clandestine activity through the net of judicial vigilance in the garb of legality. Our legal system is intended to give effective remedies and reliefs whenever the Constitution of Kenya is threatened with violation. If an authority which is expected to move to protect the Constitution drags its feet, any person acting in good faith may approach the court to seek judicial intervention to ensure that the sanctity of the Constitution of Kenya is protected and not violated. As part of reasonable, fair and just procedure to uphold the Constitutional guarantees, the right to access to justice entails a liberal approach to the question of locus standi.Accordingly in constitutional questions, human right cases, public interest litigation and class actions, the ordinary rules of Anglo-Saxon jurisprudence, that an action can be brought only by a person to whom legal injury is caused, must be departed from. In these types of cases, any person or social action groups, acting in good faith, can approach the court seeking judicial redress for a legal injury caused or threatened to be caused or to a defined class of persons represented, or for a contravention of the Constitution, or injury to the nation. In such cases the court will not assist on such a public-spirited individual or social action group espousing their cause, to show his or their standing to sue in the original Anglo-Saxon conception…”

The Court continued:

“In the interest of the realisation of effective and meaningful human rights, the common law position in regard to locus standihas to change in public interest litigation. Many people whose fundamental rights are violated may not actually be in a position to approach the Court for relief, for instance, because they are unsophisticated and indigent, which in effect means that they are incapable of enforcing their fundamental rights, which remain merely on paper. Bearing this in mind, where large numbers of persons are affected in this way, there is merit in one person or organisation being able to approach the court on behalf of all those persons whose rights are allegedly infringed. This means that human rights become accessible to the metaphorical man or woman in the street. Accessibility to justice is fundamental to rendering the Constitution legitimate. In this sense, a broad approach to locus standiis required to fulfil the Constitutional court’s mandate to uphold the Constitution as this would ensure that Constitutional rights enjoy the full measure of protection to which they are entitled.”

In Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others Civil Appeal No. 290 of 2012 the Court of Appeal stated at page 16 as follows:

“Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the argument of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus standi to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution.”

Article 258 of the Constitution which provides as follows:

(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.

(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their own name;

(b) a person acting as a member of, or in the interest of, a group or class of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its members.

Long before the promulgation of the current Constitution, it was held on 11th March, 1970, in Shah Vershi Devji & Co. Ltd vs. The Transport Licencing Board Nairobi HCMC No. 89 of 1969 [1970 EA 631; [1971] EA 289 that:

“Section 70 of the Constitution of Kenya itself creates no rights but merely gives a list of the rights and freedoms which are protected by other sections of Chapter V of the Constitution. It may be helpful in interpreting any ambiguous expressions in later sections of Chapter V. The word “person” is defined in section 123 as including “any body of persons corporate or unincorporated. Thus, a company is a “person” within the meaning of Chapter V of the constitution which is headed “Protection of Fundamental Rights and Freedoms of the Individual” and would be entitled to all the rights and freedoms given to a “person” which it is capable of enjoying. The word “individual” can be misunderstood. It is not defined in the Constitution nor in the Interpretation and General Provisions Act (Cap 2). But the meaning of it in the context in which it is used is clear. If a right or freedom is given to a “person” and is, from its nature, capable of being enjoyed by a “corporation” then a “corporation” can claim it although it is included in the list of rights and freedoms of the individual”. The word “individual” like the word “person”, does, where the context so requires include a corporation. The word must be construed as extending, not merely to what is commonly referred to as an individual person, but to a company or corporation. Supposing the right to be given by a special Act of Parliament to a limited company, it seems impossible to suppose that they would not be within the word “individual”. “Individual” seems to be any legal person who is not the general public.”

The issue of standing was also dealt with by Nyamu, J (as he then was) in Mureithi & 2 Others (for Mbari ya Murathimi Clan) vs. Attorney General & 5 Others Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443as follows:

“The function of standing rules include: to restrict access to judicial review; to protect public bodies from vexatious litigants with no real interest in the outcome of the case but just a desire to make things difficult for the Government. Such litigants do not exist in real life – if they did the requirement for leave would take care of this; to prevent the conduct of Government business being unduly hampered and delayed by excessive litigation; to reduce the risk that civil servants will behave in over cautious and unhelpful ways in dealing with citizens for fear of being sued if things go wrong; to ration scarce judicial resources; to ensure that the argument on the merit is presented in the best possible way, by a person with a real interest in presenting it (but quality of presentation and personal interest do not always go together); to ensure that people do not meddle paternalistically in affairs of others……Judicial review courts have generally adopted a very liberal approach on standing for the reason that judicial review is now regarded as an important pillar in vindicating the rule of law and constitutionalism. Thus a party who wants to challenge illegality, unreasonableness, arbitrariness, irrationality and abuse of power just to name a few interventions ought to be given a hearing by a court of law…The other reason is that although initially it was feared that the relaxation of standing would open floodgates of litigation and overwhelm the Courts this has in fact not happened and statistics reveal or show that on the ground, there are very few busybodies in this area. In addition, the path by eminent jurists in many countries highlighting on the need for the courts being broadminded on the issue….Under the English Order 53 now replaced in that country since 1977 and which applies to us by virtue of the Law Reform Act Cap 26 the test of locus standi is that a person is aggrieved. After 1977 the test is whether the applicant has sufficient interest in the matter to which the application relates. The statutory phrase “person aggrieved” was treated as a question of fact – “grievances are not to be measured in pounds and pence”……..Although under statute our test is that of sufficient interest my view is that the horse has bolted and has left the stable – it would be difficult to restrain the great achievements in this area, which achievements have been attained on a case to case basis. It will be equally difficult to restrain the public spirited citizen or well organised and well equipped pressure groups from articulating issues of public law in our courts. It is for this reason that I think Courts have a wide discretion on the issue of standing and should use it well in the circumstances of each case. The words person aggrieved are of wide import and should not be subjected to a restricted interpretation. They do not include, if course, a mere busybody who is interfering in things that do not concern him but this include a person who has a genuine grievance because an order has been made which prejudicially affects his interests and the rights of citizens to enter the lists for the benefit of the public or a section of the public, of which they themselves are members. A direct financial or legal interest is not required in the test of sufficient interest…In my viewthe Courts must resist the temptation to try and contain judicial review in a straight jacket. Even on the important principle of establishing standing for the purposes of judicial review the Courts must resist being rigidly chained to the past defined situations of standing and look at the nature of the matter before them……..The applicants are members of a Kikuyu clan which contends that during the Mau Mau war (colonial emergency) in 1955 their clan land was unlawfully acquired because the then colonial Governor and subsequently the presidents of the Independent Kenya Nation did not have the power to alienate clan or trust land for private purpose or at all. In terms of Order 53 they are “persons directly affected”. I find no basis for giving those words a different meaning to that set out in the case law above. The Court has to adopt a purposive interpretation. I have no hesitation in finding that the clan members and their successors are sufficiently aggrieved since they claim an interest in the parcels of land which they allege was clan and trust land and which is now part of a vibrant Municipality. I find it in order that the applicants represent themselves as individuals and the wider clan and I unequivocally hold that they have the required standing to bring the matter to this Court. Moreover in this case I find a strong link between standing and at least one ground for intervention – the claim that the land belonged to the clan and finally there cannot be a better challenger than members of the affected clan.”

The applicant herein describes itself as a registered society of traders duly licenced to carry out business at City Market on LR No. 209/1855/1 which is the suit property herein. In my view, under the aforesaid provisions of the Constitution, the applicant has locus to institute these judicial review proceedings if as it is claimed, the Respondent’s actions or inactions have adversely affected it members or are likely to adversely affect them.

With respect to the issue of res judicata, I dealt with the same in my ruling dated 27th May, 2014, in which I found that the first prayer in these proceedings amounts to an abuse of the Court process.

That therefore only leaves the second prayer for mandamus. It is not contested that on 22nd May 2009, the Minister for State for National Heritage and Culture, through Gazette Notice No. 5024 of 2009 declared as a monument, L.R No. 209/1855/1 on which The City Market and the surrounding compound on situate. The 2nd Interested Party contended which contention was not disputed that it continues to hold the said City Market as a monument for the benefit of the Kenyan public and in so doing, unless it has ownership rights conferred to it, the 2nd interested party neither interferes with ownership nor does it interfere with tenancy arrangements between the owner and tenants. According to it, among the conservation measures undertaken by the 2nd interested party is to ensure that any anticipated development on a gazetted monument is within acceptance standards and that negative effects are minimized. It also ensures that any proposed developments do not interfere with the façade, appearance, style and character of a building and that it is in harmony with the existing built environment.

It was its position that under National Museum and Heritage Act, the 2nd interested party’s advice must be sought whenever any site or monument is ear marked for development, which includes but not limited to extension, expansion, improvement, modification, alteration and beautification. It was contended that any attempt by the respondent and the 1st interested party to expand, improve, modify, alter or beautify the city market being gazette monument without prior consultation with the 2nd interested party will radically change the architectural, monumental and historical value consequent whereof the 2nd interested party as the authority charged with the conservation of the monument will suffer extreme setbacks in its conservation efforts; the public at large on whose behalf the monument is conserved stands to suffer. In its view, the prior approval from the 2nd interested party herein should have been but was not sought.

I associate myself with the decision in Resley vs. The City Council of Nairobi [2006] 2 EA 311where the court stated the following:

“In this case there is an apparent disregard of statutory provisions by the respondent, which are of fundamental nature. The Parliament has conferred powers on public authorities in Kenya and has clearly laid a framework on how those powers are to be exercised and where that framework is clear, there is an obligation on the public authority to strictly comply with it to render its decision valid…The purpose of the court is to ensure that the decision making process is done fairly and justly to all parties and blatant breaches of statutory provisions cannot be termed as mere technicalities by the respondent. That the law must be followed is not a choice and the courts must ensure that it is so followed and the respondent’s statements that the Court’s role is only supervisory will not be accepted and neither will the view that the Court will usurp the functions of the valuation court in determining the matter. The Court is one of the inherent and unlimited jurisdiction and it is its duty to ensure that the law is followed…If a local authority does not fulfil the requirements of law, the Court will see that it does fulfil them and it will not listen readily to suggestions of “chaos” and even if the chaos should result, still the law must be obeyed. It is imperative that the procedure laid down in the relevant statute should be properly observed. The provisions of the statutes in this respect are supposed to provide safeguards for Her Majesty’s subjects. Public Bodies and Ministers must be compelled to observe the law: and it is essential that bureaucracy should be kept in its place.”

I also agree with the holding in Bradbury and others vs. Enfield London Borough Council (1976) I W L R P 1311in which it was stated that:

“… It is imperative that the procedure laid down in the relevant statutes should be properly observed. The provisions of the statutes in this respect are supposed to provide safeguards for Her Majesty’s subjects. Public bodies and Ministers must be compelled to observe the law; and it is essential that bureaucracy should be kept in its place …”

To that extent the decision by the Court of Appeal in Civil Appeal No. 68 of 2012 Clerk, County Council of Wajir & Another vs. Allabdullahi Ahmed Ex-parte Republic [2004] eKLR is in point. In that case it was held:

“It is our considered view that once the local authority exercises the discretion and chooses to impose cess on an agricultural produce, the Minister for Agriculture must consent and then consult with the Minister for Local Government and if approval is granted, the cess can be imposed. We hold that a local authority cannot impose cess on an agricultural produce without consent of the Minister for Agriculture who must consult and obtain approval from the Minister for Local Government. Such consent, consultation and approval are mandatory before cess can be levied on an agricultural produce...From the foregoing, it is our considered view that the learned Judge did not err in law by finding that approval of the Minister for Local Government obtained upon consultation with the Minister for Agriculture is a mandatory requirement before cess can be imposed on an agricultural produce.”

This Court appreciates that in purely contractual matters, judicial review procedure ought not to be resorted in order to remedy what is purely a breach of contract. Ordinarily matters relating to contractual issues are not elevated to found a cause of action in judicial review jurisprudence. As was held by Visram, JA in Maseno University & 2 Others vs. Prof. Ochong’ Okello [2012] eKLR in which the learned Judge held:

“…orders of judicial review are orders used by the Court in its supervisory jurisdiction to review the lawfulness of an act or decision in relation to the exercise of a public act or duty. In this case, the contract of employment between the respondent and Maseno University was a contractual relationship governed by private law. The dispute between the respondent and the appellants arose from the performance of the respondent’s contract of employment. While it is true that the public has a general interest in the University being run properly, that interest does not give the public any rights over contractual matters involving the University and other parties. The trial Judge appears to have been moved by the fact that the respondent is “a senior citizen and a senior lecturer who has dedicated his service to the public by imparting knowledge to us and to our children”. This may well be so. Nonetheless, that fact does not make the contractual relationship between the respondent and the applicant which is governed by terms and conditions agreed by the parties a matter of public duty or matter governed by public law. Moreover, if one were to accept the reasoning of the trial Judge that the treatment of the respondent becomes a matter of public law because of the public expectation that the University would act lawfully and fairly towards the respondent, then it is not the respondent but the public who would have a right of action for orders of judicial review based on breach of their expectation…[T]he breach or threatened breach of the appellants’ contract of employment was not a public act or matter of public law but was a matter of contractual relationship between the respondent and the appellants, governed by private law. It was not therefore an appropriate action justifying the granting of orders of judicial review. The respondent may well have had a genuine grievance. His remedy however, lies under private law which covers disputes relating to contractual relationships. Therefore, the High Court erred in granting the orders of judicial review as Prof. Ochong’ did not have public law right capable of protection under the supervisory jurisdiction of the Court.”

I also associate myself with the position taken in Republic vs. City Council of Nairobi ex parte Meshack Mbuthia Macharia & 2 Others [2012] eKLR that judicial review cannot provide a remedy for an alleged breach of contract. Similarly, in Royal Media Services Ltd. vs. Telkom Kenya Ltd. & 2 Others Nairobi (Milimani) HCCC No. 15 of 2000 [2001] 1 EA 210, it was held:

“Where public bodies enter into private contracts there cannot arise an implication that the contracts are governed by considerations under the constitution and neither can such contract be considered as a matter of breach of administrative duty just because they are public authorities as a breach of contract does not amount to an infringement of a fundamental right.”

In this case, however, there is no evidence that the procedures to be followed in the development of a property declared to be a national monument was adhered to. Whereas I appreciate that simple breach of contractual obligations do not warrant grant of judicial review reliefs, where the breach affects or is likely to affect the public in general, such breach transcends the realm of a contractual dispute and is thereby elevated to a public law dispute hence merits the grant of judicial review orders sought.

In this case, as I have stated hereinabove, the only order in the instant application that remains for determination is:

An order of mandamus compelling the respondent to comply with gazette notice No. 5024 of 2009 issued by the Minister of State for National Heritage and Culture, Legal Notice No. 37 of 2010 issued by the Minister of State for National Heritage and Culture, Legal Notice No. 5024 of 2009 issued by the Minister of State for Lands reverting the suit property to the City Council for public use as a market.

In this case I have no doubt that the Respondent is under a legal obligation to comply with the said Legal Notices until the same are revoked. That however does not bar the Respondent from undertaking necessary developments on the suit property as long as the relevant legal procedures are followed.

Accordingly in the exercise of powers conferred upon this Court by section 11 of the Fair Administrative Act, No. 4 of 2015, I make the following orders:

I declare that the suit property being a public land, the Respondent has no powers to alienate the same for private purposes.

I give an order of mandamus compelling the Respondent to adhere to the provisions and dictates of the letter and spirit of the Legal Notices the subject of these proceedings.

I prohibit the Respondent from carrying out any undertaking on the suit property otherwise as permitted by the law and upon seeking and obtaining all the relevant authorisations from the relevant institutions and bodies concerned.

In the event that the applicants are to be removed from the suit property, the Respondent must put into motion adequate measures to protect their interests and ensure that as far as possible, they are given the first priority in the allocation of the premises in the suit property after its development.

Before the said removal of the applicants from the suit property adequate notices be given to them and the process of their eviction therefrom be undertaken in compliance with Article 28 of the Constitution which decrees the need to respect and protect their dignity

As this application is largely a public interest litigation, there will be no order as to costs.

Dated at Nairobi this day 25th of September, 2015

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Midenga for the applicants

Mr Ochieng for Mr Wanjohi for the 1st Interested Party

Miss Maina for the Respondent

Cc Patricia