BY SAM ALFAN.
Fishmongers and chicken meat sellers who used to trading in an open space at City Market have been dealt a big blow after the High Court suspended an order requiring them to be returned at the market.
The judge said he was persuaded that that the association and the county government should be granted the orders sought in the notice of motion and the members of association are recognized by the Nairobi County Government.
“I have come to the conclusion that the application filed by the appellant (City Market Stall holders Association) must succeed. It is therefore allowed as prayed”, ruled Judge Mbogholi.
Justice Msagha Mbogholi temporarily set a side an order issued last year to the traders for them to return to the market pending the hearing and determination of the case
” The court will have to hear arguments from rival parties, including stall owners and the Nairobi County government, before granting any orders,”ruled the Judge.
However, the rival parties claim to be bona fide traders and in Justice Mbogholi’s view, the evidence should be scrutinized and witnesses cross-examined, before issuing any orders.
The court set aside the orders after the stall owners and Nairobi County Government rushed to the court after the fishmongers obtained orders from a Chief Magistrate’s court, stopping their eviction, pending the determination of their case.
The County Government on their part argue that the traders had already been evicted when the orders were issued.
Through lawyer George Nyamita the traders maintained that the County government should be cited for contempt for disobeying a court order.
The fish mongers and chicken sellers obtained the order in October last year from magistrate court restraining the County Government from evicting or harassing them as they go about their business.
Nairobi county government later moved to court and challenged the order, arguing that it was obtained with misrepresentation of facts.
The application was dismissed in March 2019 by a magistrate, since the orders, restraining the eviction of the mongers had not been obeyed.
Stall owners and the County were aggrieved by the decision and filed an application before the High Court to stay the execution of the order made on March 27,2019 pending hearing and determination of the appeal
In an affidavit, the stall owners led by Michael Noru Kamau, the organizing secretary argued that the operation of the fishmongers outside their stalls had compromised access to their business and also brought in security problems.
They argued that they are bona fide tenants and they have duly executed tenancy agreements and have complied with all relevant conditions including payment of rent to the County. And the continued presence of the hawkers were hurting their business.
Lawyer Nyamita and his group dismissed claims that they are hawkers’ and said they have all rights to trade inside the market having been licensed and complied with relevant requirements to do so.
The group said that they have complied with all the requirements and they were evicted without adequate notice. They said they have complied with all registration process and have been issued with food handlers’ certificates, fish traders’ licenses, fish movement permits, certificates of medical examination and market inspection cards.
Some of them said they have plied the trade for over 20 years and they have not sought to construct or reconstruct any structures at the market but only occupy an empty space within the Market, with permission from the County.
The Judge noted that the stall owners have several stalls at City Market and the dispute started when the mongers were evicted by the County Government.
In the ruling, Justice Mbogholi said that the stall owners were likely to suffer substantial loss and by the time the lower court issued the order, they had already been evicted.
The Judge said the County government cannot be compelled to reinstate them and neither can they be punished for contempt, for failing to obey the order.
