Micro & Small Enterprises Association of Kenya Mombasa Branch (Acting in the interest of its Members to the exclusion of those who may have sought reliefs in their own right) v Mombasa County Government & 43 others [2014] eKLR

Key Facts

Issues

• The court evaluated the competing interests between the hawkers' constitutional right to livelihood (Article 43) and public concerns over safety, security, and tourism in Mombasa Island. It emphasized the need for judicious allocation of trading areas to simultaneously protect both economic rights and public welfare, while ensuring compliance with constitutional obligations to marginalized groups and stakeholders.
• The court addressed the legality of the forced eviction of hawkers by the Mombasa County Government, determining whether it violated the petitioners' fundamental rights to life and social economic rights under the Constitution, including the right to earn a living (Article 43) and fair administrative action (Article 47). The eviction occurred without notice, consultation, or provision of alternative locations, raising claims of constitutional breaches and infringement of rights to adequate living standards under international law.
• The court examined if the Mombasa County Government's abrupt eviction of hawkers—without prior consultation, notice, or allocated alternatives—constituted a violation of the petitioners' right to fair administrative action under Article 47. This included assessing the government's duty to engage with stakeholders and provide due process before enforcing trade regulations.
• The court considered the appropriateness of issuing conservatory orders to restrain the respondents from evicting the petitioners during the petition process. It highlighted the constitutional premium on fundamental rights (Articles 20, 21, 22, 23) and the need for a balance of convenience test to protect the petitioners' rights without unduly prejudicing other stakeholders' interests.

Holdings

• The court ordered the respondents to permit the petitioners to conduct hawking business in areas outside the Central Business District (CBD), subject to payment of levies and without erecting structures on streets or shop entrances. The allocation must consider stakeholder interests, security, cleanliness, and decongestion.
• Parties were directed to hold meetings for immediate implementation of the allocation and report compliance to the court within 14 days, with further orders on the petition's hearing.
• The court emphasized the County Government's duty to consult stakeholders and balance public interests (tourism, safety) with the petitioners' economic rights under Article 43 of the Constitution, ensuring judicious allocation of trading spaces.

Remedies

• The court ordered respondents to permit petitioners to conduct hawking business in areas outside the Central Business District (CBD) of Mombasa, subject to daily or weekly levy payments at the last agreed rate, operation from designated places allocated by the county government considering stakeholder interests, and prohibition of structures on streets, pavements, and shop entrances.
• The court directed the parties, with counsel, to hold immediate meetings for implementation of business location allocation to petitioners and to report compliance and progress on the petition's hearing within 14 days from the ruling date (18th February 2014).

Legal Principles

• The court granted a conservatory order (interim injunction) to restrain the respondents from evicting the petitioners pending the hearing of the petition, emphasizing the need to preserve the enjoyment of fundamental rights under the Constitution.
• The court applied judicial review principles to assess the constitutionality of the county government's actions, balancing the petitioners' socio-economic rights under Article 43 against public interests in safety, security, and tourism, as outlined in Articles 20, 24, and 23 of the Constitution.

Precedent Name

• Giella v. Casman Brown
• Kenya Transport Association v. The Municipal Council of Mombasa and Anor and Multiple Hauliers East Africa Limited v. Attorney General and 10 Ors.
• Githunguri v. AG

Cited Statute

• Government Proceedings Act
• Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rule, 2013
• Universal Declaration of Human Rights
• Constitution of Kenya
• Police Act

Judge Name

Passage Text

• 16. In my view, the Court has a primary duty under Articles 20, 21, 22 and 23 of the Constitution to protect an applicant from possible harm from violation, or threatened or likely violation, of his rights without waiting to remedy the harm after the threatened danger has occurred; the court must make orders to pre-empt such injury and to preserve the enjoyment by the applicant of his right until the court hears and determines, through the Petition, the question whether there has been violation or threatened violation of the right.
• 22. Accordingly, pending the hearing of the petitioners' petition herein, as conservatory measure, the court orders the respondents to permit the conduct by the petitioners of their hawking business in areas outside the Central Business District (CBD), Mombasa... subject to payment... and on condition that no structures are erected...
• 19. The public interest in security from terrorism, safety in case of fires and general convenience of vulnerable groups, and the development of tourism as a single important revenue earner for the County and the country at large cannot be over-emphasised... However, the interests of the petitioners in earning a living as a social economic right is also important...