The Nairobi Metropolitan Services (NMS) has received court's nod to evict a section of traders dealing with secondhand clothes within Gikomba open air market to pave way for expansion of the neighbouring Pumwani Majengo Health Centre.
Justice Oguttu Mboya said granting the traders' request for an order to stop the looming eviction and demolition of business structures would militate against the public good.
He said the injunction would otherwise forestall the realisation of the right to universal health care, premised on the intended upgrade of the health Centre.
The judge noted that the traders' right to earn a living must not constitute a fetter to the NMS' rights to expand and upgrade the Health Center into Level Three Hospital.
The 174 traders operating at Gacucu Gikomba open air market wanted court to stop NMS from threatening or interfering with their occupation of the land pending hearing of their case.
Led by Mr Francis Kimathi Mutisya, they informed the court that they have conducted the said business in the said market for over 40 years.
He contended that the imminent demolition of their business premises would affect and destroy their lives and source of livelihoods.
But NMS opposed the case saying the market sits on public land and that the same ought to be used as such and for purposes of enhancing the public good.
Mr Stephen Mwangi, the Deputy Director in Charge of lands in the NMS, stated that the area in question covers and falls within the hospital and the area is necessary for purposes of the expansion of the said medical facility, to accommodate the increased demand for health care.
He said the traders have since encroached onto and occupied a substantial chunk of the suit property.
As a result of the encroachment, they have not only blocked access to the health facility, but also the sewerage system that serves the hospital.
"As a result of the Covid-19 pandemic, there has been a growing need for medical services and hence there has arisen the necessity to upgrade the medical facility to Level Three Hospital. Consequently, the expansion is extremely necessary and so the recovery of vacant possession of the suite property is needed to facilitate the upgrade," Mr Mwangi stated.
In its ruling, the court said although the traders have a right to earn a living, the right to do so does not confer upon them any entitlement to the public land in question.
"Whereas I affirm their rights to earn a living and livelihood, it must however be noted that the petitioner's rights to do so are not absolute. In this regard, it suffices to observe that the right to earn a living and carry on business is one which is subject to the Limitation under Article 25 of the Constitution," said Justice Mboya.
He added that although the government is entitled to recover vacant possession for purposes of putting the same to the designated public use, it is nevertheless obliged to issue and serve the traders with the requisite notices.
On traders' request that they will suffer irreparable loss, the court noted that being an open-air market there are no Permanent structures and buildings that are erected.
"Whatever temporary structures that the Petitioners may have constructed, for purposes of sheltering as against sunshine and rain, are in such a state that the Petitioners can relocate the same elsewhere, provided that the requisite notices are served. Voluntary vacation of the suit premises by the Petitioners, shall not cause or occasion any irreparable loss, whatsoever," said the judge.
