A judge has suspended an order requiring the return of traders who have been selling fish and chicken in the open space at City Market.
Justice Msagha Mbogholi said the court will have to hear arguments from rival parties, including stall owners and the Nairobi County government, before granting any orders.
The rival parties claim to be bona fide traders and in Justice Mbogholi’s view, the evidence should be scrutinised and witnesses cross-examined, before issuing any orders.
The stall owners and the County Government rushed to the High Court after the fishmongers obtained orders from a magistrate's court stopping their eviction, pending the determination of their case.
The county government, on its part, argues that the traders had already been evicted when the orders were issued.
But the group, led by George Nyamita, maintained that the county should be cited for contempt for disobeying a court order.
The fishmongers and chicken sellers obtained the order last October restraining the county government from evicting or harassing them as they went about their business.
The 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 had not been obeyed.
Stall owners and the county were aggrieved by the decision and filed an application before the High Court.
In an affidavit, the stall owners, led by the organising secretary Michael Noru Kamau, 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.
In addition, they said the continued presence of the hawkers were hurting their business.
Right to operate
Mr Nyamita and his group however dismissed claims that they are hawkers and said they have all rights to trade inside the market having been licensed.
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’ licences, 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.
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 it be punished for contempt, for failing to obey the order.