The court has allowed the Nairobi Metropolitan Services (NMS) to evict traders from the open-air Gikomba market to allow for the expansion of a health centre.
The court order will see 174 traders forced to move out of the Gacucu area of the market to pave way for the expansion of the neighbouring Pumwani Majengo Health Centre.
In granting the orders, the court stated that the traders' request for an order to stop the eviction and demolition of business structures would hinder the public good.
Justice Oguttu Mboya stated that giving the directive would prevent the realisation of the right to universal health care.
In his ruling, Justice Oguttu noted that although the traders have a right to earn a living, they do not have 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," Justice Mboya stated.
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 nonetheless obliged to issue and serve the traders with the necessary notices.
The court noted that being an open-air market there are no permanent structures and buildings that are erected.
The traders had told the court they had conducted their businesses in the area for over 40 years and demolition of their stalls would affect their source of livelihood.
However, the NMS opposed the case saying the market sits on public property and the land should be used for purposes of improving the public good.
Stephen Mwangi, the Deputy Director in Charge of Lands at the NMS, in court documents, stated that the area in question covers and falls within the hospital.
He further stated that the area is necessary for purposes of the expansion of the medical facility to accommodate the increased demand for health care.
The NMS Deputy Director went on to explain that the traders have encroached onto and occupied a substantial chunk of the contested property.
He also told the court that as a result of the encroachment, the traders 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 III Hospital," Mwangi stated.
"Consequently, the expansion is extremely necessary and so the recovery of vacant possession of the suit property is needed to facilitate the upgrade," he added.
