Imported secondhand cars at a yard in Mombasa on September 5, 2020. PHOTO | KEVIN ODIT | NMG
Used car dealers in Mombasa breathed a sigh of relief after a court ruled that the county government cannot relocate them out of the central business district (CBD) without consultations.
Justice Eric Ogola ruled that although the county has constitutional duties to plan the city of Mombasa and relocate the businesses from the CBD, actions leading to such decisions must be participatory and public driven.
“Until such a time public participation has been done, the petitioner’s members cannot be evicted, removed, or relocated from the CBD,” ordered Justice Ogola in his judgement on a petition filed by the importers under the umbrella of Car Importers Association of Kenya (Ciak).
The judge, however, declined to issue a permanent injunction to bar the county government from kicking the secondhand car importers out of the CBD.
In his ruling, Justice Ogola said the county violated the rights and freedoms of the car dealers by failing to comply with Article 47 of the Constitution and provisions of the Fair Administrative Action Act.
“This court further finds and holds that the petitioner is entitled to take proactive actions to prevent abrogation of a right or a fundamental freedom as stipulated in the Constitution,” ruled Justice Ogola.
Article 47 of the Constitution states that “if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
Ciak sued the county government of Mombasa over its threats to relocate them from the city centre to Miritini, about 12km from the CBD.
The association wanted a declaration that its members have a right to be informed of the decision leading to their relocation and that they have a right to be involved in the decision-making process culminating in moving out of the CBD.
“The decision made by the respondent (county government) through public declarations will adversely affect the petitioner’s members as their businesses are reliant on large cash transactions,” argued Ciak through their lawyer Gikandi Ngibuini.
According to the importers, Mombasa had shut them out from accessing the county electronic licensing system since January 2019 to arm-twist them to move to Miritini.
They further argued that the county government had been harassing them by charging them with the offence of trading without a trade licence yet the lack of the document is on account of the county’s own fault.
On its part, the county government told the court that the importers had been ordered to relocate to Miritini from 2014 and that the decision was never challenged.