- Judge Eric Ogola has ruled that while the county has constitutional obligations to plan for the city of Mombasa and to move CBD businesses, actions leading to such decisions must be participatory and led by the public.
Mombasa used car dealers breathed a sigh of relief after a court ruled the county government could not move them out of the central business district (CBD) without consultations.
Judge Eric Ogola has ruled that while the county has constitutional obligations to plan for the city of Mombasa and to relocate CBD businesses, actions leading to such decisions must be participatory and led by the public.
“Until public participation has taken place, the petitioner’s members cannot be evicted, expelled or relocated from the CBD,” Judge Ogola ruled in his judgment on a petition filed by importers under the umbrella of the Kenya Car Importers Association (Ciak).
The judge, however, refused to issue a permanent injunction to prevent the county government from firing used car importers from the CBD.
In his ruling, Judge Ogola said the county violated the rights and freedoms of car dealers by failing to comply with Article 47 of the Constitution and the provisions of the Fair Administrative Action Act.
“This court concludes and maintains that the petitioner has the right to take proactive measures to prevent the repeal of a fundamental right or freedom as stipulated in the Constitution,” Judge Ogola said.
Article 47 of the Constitution provides that “if a right or a fundamental freedom of a person has been or is likely to be infringed by an administrative action, the person has the right to be justified in writing”.
Ciak sued the Mombasa County government for threats to move them from downtown to Miritini, about 7.5 miles from the CBD.
The association wanted a statement that its members have the right to be informed of the decision leading to their move and that they have the right to be involved in the decision-making process leading to leaving the CBD.
“The decision taken by the defendant (county government) through public statements will negatively affect the petitioner’s members, as their businesses depend on large cash transactions,” Ciak argued through his lawyer Gikandi Ngibuini .
According to importers, Mombasa had blocked them from accessing the county’s electronic licensing system since January 2019 to arm them to move to Miritini.
They further argued that the county government harassed them by accusing them of trading without a business license, but that the lack of documentation was due to the county’s fault.
For its part, the county government told the court that the importers were ordered to move to Miritini from 2014 and the decision was never challenged.