New Iten Juakali Association v Micro and Small Enterprises Authority & another (Claim 003 of 2023) [2023] KEMSET 651 (KLR) (17 November 2023) (Judgment)
Neutral citation:
[2023] KEMSET 651 (KLR)
Republic of Kenya
Claim 003 of 2023
J.Bett, Chair, R.Katina, A Gikuya, A Kibet & JK Biwott, Members
November 17, 2023
Between
New Iten Juakali Association
Claimant
and
Micro And Small Enterprises Authority
1st Respondent
Iten Juakali Association
2nd Respondent
Judgment
Introduction
1.This matter commenced by way of a letter dated 20th March 2023 filed by the Claimant, New Iten Juakali Association and received by the Tribunal on 3rd April, 2023. The claim was filed against the Respondent, the Micro and Small Enterprises Authority. The Respondent was represented by its counsel, Ms Agnes Thoiong’o while the Claimants were self represented. On record for the claimants were it’s Chairman Mr. Samuel Otieno, it’s Treasurer Mr. Cleophas Songok and it’s Organizing Secretary Mr. Kassim Wako as well as Mr. Alex Kiplimo Chebotibin, Member of the Association.
2.The matter was mentioned on 5th April, 2023, when the Tribunal gave the following directions:a.The Claimant serves the Statement of Claim and all the supporting documents upon the Respondents within seven (7) days and in any case by 14th April, 2023.b.The Respondent files and serves the Response within fourteen (14) days of service of the Claim and in any case by 28th April, 2023.c.The Claimant files and serves the Reply to the Response within seven (7) days of service of the Response and in any case by 5th May, 2023.d.The Cause be mentioned virtually on 11th May, 2023, at 9.00 O’clock.
3.On 11th May, the claimants informed the Tribunal that despite service, they had not received any response from the Respondent. The Tribunal then issued fresh directions on service and scheduled the matter for a mention for further directions on 19th May, 2023.
4.On 19th May, 2023, the counsel for the Respondent formally entered appearance and sought for time to file the necessary responses. Subsequently, the Tribunal issues fresh directions for service and set the matter for a mention on 23rd June, 2023 for further directions.
5.On 23rd June, the counsel for the Respondent confirmed the filing of the Response and the filing of the Third Party notice seeking to enjoin Iten Juakali Association, the current occupants of the suit property as the 2nd Respondents. The Tribunal allowed the Application to enjoin the 2nd Respondents and set the matter for a further mention on 7th July to confirm compliance of the directions issued earlier.
6.On 7th July, the 2nd Respondent, Iten Juakali Association, represented by Counsel Korir Bundotich formally came on record. At the onset, the 2nd Respondent raised a Preliminary Objection challenging the Jurisdiction of the Tribunal. The 1st Respondent admitted Tribunals Jurisdiction. This Preliminary Objection was dispensed by way of written submissions.
7.The Tribunal rendered its reasoned ruling on 11th August affirming its jurisdiction over the dispute. While rendering its ruling, the Tribunal made specific reference to section 55 (2) (b) that mandates the Tribunal to hear and determine disputes relating to the failure to comply with the terms and conditions of allocation of worksites. Additionally, section 55 (2) (e) also allows the Tribunal to hear and determine disputes relating to the unprocedural and illegal allocation, subdivision, subletting of micro and small enterprises worksite. In a nutshell, the twin provisions inter alia clothed the Tribunal with the requisite Jurisdiction to hear and determine the current dispute. Subsequently, the Tribunal issued fresh directions and set the matter for a mention on 4th August 2023 to confirm compliance and issuance of further directions.
8.The parties asked the Tribunal to undertake a site visit in order to take stock of the current status and the prevailing conditions of the suit worksite hereinafter referred to as the Iten CIDC, located in Iten Township. The Tribunal undertook a site visit on 31st August followed by a hearing on 1st September, 2023. Further hearing took place on 15th September, 2023.
Claimant’s Case
9.The gist of the Claimant’s claim is that the 1st Respondent had promised to give them working space at the parcel, of land identified as Iten CIDC (Uns Site for Juakali sheds-Iten Township). They further claimed that the workspace was to be granted in two phases, with the 2nd Respondent being allotted space in the first phase and the Claimant in the second phase, but there were no further responses from the 1st Respondent necessitation the Claimant to seek the intervention of the Tribunal to grant them access to workspace in Iten CIDC.
10.The claimants were in person and they were represented by:-a.Samuel Otieno -Chairmanb.Kassim Wako - Organising Secretaryc.Cleophas Songok -Treasurerd.Alex Kiplimo Chebotibin, member
11.The four representatives testified during the hearing. In his testimony, the Claimant’s chairman, Mr. Samuel Otieno stated that he approached the Tribunal through the Claim filed in the Tribunal to seek justice for his members to get space to work from.
12.He testified that he came to Iten township in 2015 and worked for a Mr.Alex briefly and then proceeded to work for / with Francis. That for juakali business it was his experience that it is not worth working for others and so he started working for himself, a year later Iten Municipal Inspectorate officers/askaris, came and told those operating around there to move since the sewage system was to be constructed along that line and he was advised, together with others, to move to the market (soko) in 2017.
13.He testifed that in 2017, Kassim Wako and another member travelled to Nakuru ASK show and met a Mr. Fredrick Waweru who advised them to register an Association. He stated that they registered it in 2018 with Elgeyo Marakwet County. They were then introduced to Mr. Alton Kogo, the Regional Director for the Micro and Small Enterprises Authority (MSEA) who advised them to register with the authority so that they obtain a certificate. This was done in the name of New Iten Juakali registered as an Association on 4th June 2021.
14.He testified that the Regional Director told his Association that there is workspace for them to operate from and that the three (3) Association namely Iten Juakali Association, Uwezo Juakali Association and New Iten Association should meet him in his office to deliberate on the modalities on how to achieve a common working arrangement. That Mr. Kogo told them that he would call them once power was connected to the CIDC. He further told them to wait for proper fencing and repairs of the Iten CIDC worksite.
15.After the repairs, the Regional Director wrote a letter to them that from 1st May 2021, Iten Juakali Association, gets in and New Iten Juakali would gain entry on the suit workplace thereafter. He produced the letter as part of the documents attached to the claimant’s list of documents filed in the Tribunal. He testified that that when his members went to CIDC worksite, they were denied entry by the watchmen at the gate and upon enquiry they were told by the watchman that they would not be allowed. That as they were denied entry, the members of the Iten Juakali Association were present.
16.The Regional Director, then told the members to wait at the gate and spoke to members of Iten Juakali Association. He didn’t know what was discussed. He told his members to wait for one month so that he gets a report back to them. When a month lapsed, members went back to the Regional Director who told members that Iten Juakali Associaton had documents to stop his members from getting in there. The witness testified that they then agreed among themselves to look for a plan B and that is when they decided to file the claim with the Tribunal. He prayed that the Tribunal helps the New Iten Juakali Association to know whether they have a share on Iten CIDC, since the Regional Director for MSEA, had clearly advised them that they had rights to the worksite and only access was the issue.
17.He testified that upon realising that the Regional Director was allocating to their Association a worksite, and after further realising that they had a certificate with the Authority, the Iten Juakali Association, started putting up semi- permanent structures in 2021.
18.On cross-examination, the witness admitted that the Regional Director of MSEA, really struggled to ensure that they got space at Iten CIDC.
19.On cross-examination by Bundotich Korir, counsel for the 2nd Respondent, the witness confirmed that the certificate for New Iten Juakali Association is filed among their list of documents filed in Tribunal and further admitted that they were 40 members and that according to him, the CIDC worksite was spacious and enough to accommodate them all.
20.He further confirmed that he had seen the list of members of Iten Juakali Association, being 62 and the letter of allotment in the name of the Ministry Of Labour And Iten Juakali Assocation.
21.He told the Tribunal that his New Iten Juakali Association’s name was not on the allotment letter and that his Association had not applied for allotment of land but had made several requests for a worksite to operate from.
22.On his part, Mr. Cleophas Songok, Treasurer, New Iten Juakali Association, stated that he was appearing before the Tribunal to look for justice for his New Iten Juakali Association and as a Kenyan, he knew that in every county, there exists a CIDC for the juakali sector. He testified that the Regional Director for MSEA, did not do his work as required.
23.He confirmed that in 2017, his Association sent two youth members namely, Raymond Rotich and Collins Nyawan for a training how to operate a machine for use in nuts production and were later surprised when in 2021, Iten Juakali Association went to collect the machine though they had not been given authority by the Regional Director.
24.He testified that they had a series of meetings and the last one was called by the Regional Director who confirmed to his members that he was going to allocate to three Associations namely, Uwezo, New Iten Juakali And Iten Juakali workspace for operations.
25.He stated that the Regional Director devised a formular where the indigenous or original inhabitants that is Iten Juakali Association, get 70% of the worksite, Uwezo Juakali Association 15% and New Iten Juakali Association 15%, but they waited for long until finally Uwezo Juakali gave up.
26.He stated that they were shocked that Governor, Elgeyo Marakwet, came to open the space and only Iten Juakali Association were attended to as his Association was not aware and found out that Iten Juakali Association were given 100% worksite space and wondered whether that was justice to other Associations since they were all Kenyans and having heard the president say every Kenyan had a right to work in any part of the country.
27.He felt that as New Iten Juakali Association, the Regional Director For MSEA had authority to give his members space to work from and that his members were not at the Tribunal to take land from Iten Juakali Association, but to ask for ask for a share of the workspace and pleaded for justice from the Tribunal.
28.On cross-examination by Agness Thiong’o, counsel for MSEA, the 1st Respondent, Mr. Songok stated that they worked on areas such as masonry, welding, tailoring etc and that these are mainly juakali.
29.On cross-examination by Bundotich Korir, counsel for the 2nd Respondent, the witness confirmed that they had a certificate of registration that was filed in Tribunal and that their Association had a list of 40 members. He further stated that he was shocked to learn that the land had been fully allocated to Iten Juakali Association. He stated that the 2010 Constitution of Kenya changed things and public land ought to be used by all and that allotment to the 2nd Respondent is not applicable under the current Constitutional dispensation.
30.He said that the certificate for his Association allows him and his members to work from the site and that he was only seeking justice as to the place his members will work from and they want to be allowed to access the machine because it is government property. He stated that the space they were currently working from is government land but the specific space for SME’S is the CIDC Iten. He confirmed that his members are temporarily accommodated at the local market or soko but frequently harassed by the County enforcement/inspectorate/askaris/officers because they have no permits/letters. He testified that he did not bring any physical plan to show that the site belongs to the MSEA.
31.Finally, he stated that that there is tension between the members of Iten Juakali and New Iten Juakali and he was seeking the Tribunal to help his Association to resolve the dispute.
32.On his part, Mr. Kassim Wako, the Organising Secretary for the Claimant testified that he came to the Tribunal with members of New Iten Juakali Association since he had met the Regional Director, MSEA in Eldoret, who had promised to allocate his members a worksite at the CIDC, Iten, after the registration of his Association with MSEA.
33.He confirmed to the Tribunal that the Association was eventually registered in 2021 and that they have a certificate to that effect. He and his members then asked to be allocated space and the Regional Director promised to give their Association space at CIDC, ITEN, which he confirmed was under the management of MSEA. In May, 2022, the Claimants’ members asked the Regional Director to be guided on when they would be shown the space to work from.
34.He told them that there were two other Associations other than theirs. He gave their Association a letter allocating them space but he clarified that Iten Juakali Association would be allocated phase one within 21 days and their Association will be allocated space within the next 21 days. The members called the Director after the lapse of 21 days and he came and found members but they were prevented by the members of Iten Juakali Association from accessing the workspace. They had a meeting with the Director and were told that it was not possible to show members space and that he needed a month since the other Association claimed they were the owners of worksite at CIDC, Iten. He did not come back to members after the lapse of one month.
35.They decided to go to his office to inquire what was taking place and the Director told their members to be patient and members were patient since 21st October, 2021. Members realized later that the space which they had been promised was under construction and that temporary “mabati” structures had been put up. The Association thought of the next course of action since the Director appeared unable to allocate members space. It’s the witness’s evidence that the members have filed this Claim at the Tribunal to ask for space at the CIDC, Iten, from where their members can work from since all their members work along roadsides and market and they are constantly under harassment by County askaris.
36.He recounted one occasion in November, 2022, when the town manager known as Omonei and one member of Iten Juakali Association known as Pastor Katale, called his members to the market and told them that they were not needed at the market since the market owners were complaining about metals cutting them, and that noise and paint was a nuisance to them. His members were then given one week to vacate the site.
37.On cross examination by Bundotich Korir, counsel for the 2nd Respondent, the witness confirmed that he is a Kenyan. He states that he was told by the Regional Director, MSEA that the 2nd Respondent had an allotment letter to the CDIC worksite. He stated that his Association did not come to the Tribunal to claim for land but to ask for space to work from. That where they are working from currently is the market which was given to them by the town manager Mr. Omonei. He states that the worksite shown to them had permanent buildings but no work was going on there. He states that his members had not applied to the government for land but only needed a workspace for their juakali operations.
38.On re examination, he stated that his Association had been allocated space by MSEA and it was irrelevant whether they had applied for land elsewhere. He calls for fairness for all to be shown space to work from.
39.On his part, Mr. Alex Kiplimo Chebotibin testified and confirmed that he is a member of the Claimant, New Iten Juakali Association. He stated that he is a Juakali person and has had challenges accessing a workspace since the year 2007 and has been shifted 8 times from one place to the other, the roadside, old soko or market, next to the mosque, KERRA, Oil Libya station, to the stage and back to the market. He stated that Juakali has grown and in 2017, he was told by the county officials to move to the Juakali CIDC, behind the market/soko and shown a 4 room space which he was advised was built by MSEA, He stated that he does painting and he has a “helicopter.”
40.He states that later he met the Regional director who told him that there is a juakali space and that he would make arrangements so that the members would be allocated workspace.
41.He stated that there was fracas since one of the members of Iten Juakali Association, mzee Kokoi Kipkosgei told him the space they had been shown was theirs and that they were registered since 1992 and were allocated the land and when he asked about the county land, he was told to ask the governor. Mzee Kipkosgei told him to register under his Association, and when he declined he told him to go away. He stated that he is member number 8 in the Claimant’s Association.
42.On cross examination by Agness Thiong’o, counsel for the 1st Respondent, he admitted that the Regional Director for MSEA, looked for space for his members, New Iten Kali Association, but Iten Juakali Association, who are indigenous persons or locals denied them access the worksite.
43.On cross examination by Bundotich Korir, Counsel for the 2nd Respondent, the witness stated that he started juakali work in February, 2007. He didn’t know the wazee, then, members of Iten Juakali Association. He met them in 2017. When he started in 2007, some wazees were retailers in Iten town and in that year, the office of the chief was in existence within the site, the rest was grazing land. He confirms that permanent structures have been built at the CIDC site.
44.He further testifies that he works inside the soko, directly behind the chief’s office which is inside the site. He says he has worked from the market/soko for 9 years, i.e. since 2014. He explained that he does not want anybody to be removed from the site and his Association has not asked the government to give his members the parcel of land. He confirms once again that he has been moved 8 times from sites he has been operating from.
45.On re-examination, he states that the younger generation should be allowed to have space to grow and finally that his members need justice.
Respondent’s Case
1st Respondent, The MSE Authority
46.The 1st Respondent did not call any witnesses during the hearing, but instead sought to rely on the Statement of Response dated 21st June, 2023, the list and bundle of documents dated 21st June, 2023, their Reply to the 2nd Respondents Statement of Response dated 19th July 2023 together with their supplementary list and bundle of documents dated 19th July 2023. These documents have been filed with the Tribunal.
2nd Respondent, Iten Juakali Association
47.The 2nd Respondent was represented by counsel Bundotich Korir. He called 3 witnesses, namely: Mr. Joseph Kimtai, Chairman, Mr. Mike Koima, Secretary and Mrs. Priscilla Sawe, Member.
48.On his part, Mr. Joseph Kimtai testified that he is a resident of Iten, Keiyo North. He is a businessman and a mechanic. He is the chairman of Iten Juakali Association that was registered in 1997, at the office of the Attorney General, department of Registrar of Societies and the certificate is filed in the Tribunal together with list of other documents. They are 62 members. That he read the claim from New Iten Juakali Association.
49.That he works at a site that he rents. He did not get space at the CIDC. The site is in the name of the Ministry of Labour and Iten Juakali Association. The allotment letter filed was filed in the Tribunal. His Association opposes the occupation of New Iten Juakali Association because the space is small. It is not enough for his 62 members. He didn’t even get space as chairman and that only 42 members managed to be allocated space. The rest, about 20 members work from spaces they rent outside CIDC. He feels the county of Elgeyo Marakwet should grant some parcel of land so that Associations benefit from work space since the county has enough land.
50.He testified that there is an industrial park about 7 kilometres from Iten town that would accommodate all the Associations. He states that the New Iten Juakali Association, was registered in 2021 and he advises them to seek land from the county government for workspace. The space that they are currently working from is government land. He has not heard that the members of the New Iten Juakali Association were to be evicted by the county officials. He says the Iten CIDC cannot be classified as a worksite since it was allocated to his Association. He wants the Tribunal to allow them to look for more land for space to operate from and if new members are registered, there is need for expansion. He prays that MSEA gives the Associations more space to operate from.
51.He states that his Association, Iten Juakali Association applied for the plot, CIDC, Iten, when juakali was established in 1992 when he visited Singapore.
52.He paid for the allotment and survey of the site. New Iten Juakali Association has not paid for the allotment and survey.
53.On cross examination by Cleophas Songok, he stated that where they work from is a space they applied to be allocated as Iten Juakali Association in 1997-99 and that only 42 out of 62 members are accommodated inside CIDC. There was no power nor water and public health officers notified them, through a letter, not to use the property.
54.He blames MSEA for allocating other Associations the site, though they were the first allotees. He advises all Associations to come together and pursue the County government for more land. He stated that he was aware that there is an industrial park under construction and there is ongoing dialogue with the County government and they were advised to wait. He had a machine that he wanted to take the industrial park. He says juakali Associations were given plots in Kapsowar, Flax and Chepkorio which he and his members initiated.
55.He pleaded with all Associations to come together so that they can get some land for their juakali businesses.He referred to a letter dated 02/12/2021 stating that the industrial park was under construction. He says the other Association accuses them of being old people, tribal and retired and he seeks protection and justice from Tribunal.
56.On cross examination by Samwel Otieno, he confirms that they were there before the new Associations came into existence and that they applied for the land and were allocated the same by the Ministry of Labour then. They pay taxes just like everybody else. He states that the site is not enough for all the Associations let alone their own. He prays that all Associations come together to and dialogue with the government under the Regional Director, MSEA, so that they benefit from government land. He further says there are allocation committees within Juakali Associations and if they come together they would stand to benefit. He says Uwezo did not go to court and they have confidence the Regional Director will help all.
57.He states that his interest is in industrial park that is currently under construction within the county. He says his members and others were in dialogue but found out that they had been brought to the Tribunal.
58.On cross examination by Agnes Thiong’o, counsel for the 1st Respondent, he confirms that the CIDC project was started in 1997. The letter of allotment has special conditions. Special condition number 8 says that the unsurveyed site cannot be used unless approved by the ministry responsible for the Juakali sector. He says the national government constructed the permanent rooms and later refurbished and installed power and further put the machines. It started the National Stimulus Programs which has 415 registered members so far. He confirms that its not fair that only one Association is favoured at the expense of others and that CIDC should be used for public purposes. He says the role of MSEA is to assist MSE and Associations. The Juakali sector has been under different ministries. According to him the CIDC site was to be taken by councillors at some point.
59.On re - examanition by Bundotich Korir, counsel for the 2nd Respondent, the witness testified that the site is almost a private land. He had to sacrifice for the other members even though he is the chairman. On age, he says it is discrimination from the other Association members to feel so since that is not a criteria for allocation or membership to an Association of juakali. He affirms that if all 415 members are allocated on the site, it will be chaotic. His Association is the one that booked the site first through the application for allocation. It can only accommodate 42 members. If space allows, then new members can be introduced. He pleads to MSEA to take control of its functions.
60.On his part, Mike Koima testified that he is a resident of Iten, a businessman and the secretary of Iten Juakali Association. He confirms that there are 62 members of the Association and 42 of them work within the CIDC site and the rest work from outside. The permanent structures are fully occupied while the temporary ones are underway. He has a space at the site. The new structures were constructed in 2021. That they were advised to follow county rules to build the temporary structures.
61.He further testified that the government was stimulating the economy and his members were waiting for government help. Some structures do not have doors because they are done on a rolling basis. He prays that another site be provided so that it accommodates all the Associations. The CIDC site is government land and the allocation was granted for 99 years and they have young people who are members and they equally pay taxes. The land is limited and when MSEA came, they did not know whether they had the mandate to allocate land. If 415 members are all allocated, it will be chaotic. All work must be organized. He prays to the Tribunal to dismiss the claim.
62.On cross eaxamination by Cleophas Songok, the witnesses states that the land is theirs as it was allocated by the government and that there is no different government. They have an allotment and not a title. The new structures were not built to deny New Iten Juakali Association access. The structures are not complete. There was no power, equipment and the help they needed was on training and equipment. They would like the government to give the land to his Association. If New Iten Juakali Association is allocated there will be a challenge with accommodation. CIDC committee chairman is the County Commissioner. He does not know whether MSEA recognizes his Association. They asked his Association to register with them. Iten Juakali was registered in 1997. He does not know when New Iten Juakali Association was registered. The machine at the CIDC site is a common machine user for Iten Juakali Association.
63.He states that Uwezo left on their own and that they did not chase them away. He would not accept if the Tribunal allocates New Iten Juakali Association space within Iten CIDC.
64.On cross examination by Samwel Otieno, he stated that he knows that MSEA helps juakali, trains and oversees the rights of the Associations. He does not recall the 15:15:70% allocation to Associations that are domiciled in Iten by the Regional Director. The government gave them the machine and New Iten Juakali Association can request for theirs since the machine on the CIDC is for his members. There has been a steady progress since 1997 and once complete, there will be no grass as alleged. He states that his Associations follows orders. He reiterates that renting the premises is not a problem and that Room 11within the CIDC is an office.
65.On cross examination by Agness Thiong’o, counsel for the 1st Respondent, he stated that there was no plan for temporary structures according to the original plan. They sought it from the county government and they did not seek it from the ministry jointly allocated with them. They built the structures after the Regional Director said they share the space with other Associations. NEMA approved and the county government gave them the go ahead.
66.Before 2021, they were using the permanent structures. He believes that at some point title deed will be issued and the site will be under Iten Juakali Association. The site is not a bush and there is no tribalism. There is no provision that restricts construction of temporary structures and as allotees, they can use the land as they deem fit for the 99 years provided for in the allotment.
67.On her part, Priscilla Sawe testified that she is a resident of Iten and resides near the Police Post. She is a businesswoman and does decorations and flowers. She is a member of Iten Juakali Association. She did not get space at the CIDC site. She rents workspace from outside. The space was not enough for all members. The space is full and some members did not get allocation.
68.On cross examination by Cleophas Songok, she confirms that the property is for national government and for a while it was not ready for use.
69.On cross examination by Samwel Otieno, she confirms that the spaces at CIDC were allocated by members themselves and she did not get space. She is waiting for the industrial park to be established so that she can apply for space. MSEA did not build the structures, it is the national government, they only painted the buildings. She states that they seek support of MSEA for development of the juakali sector.
Agreed Facts
70.The following facts are not contested:a.That the subject parcel of land was registered in the name of the ministry of Labor and human resource development and Iten Juakali Association.b.That the Claimant and the 2nd Respondent are micro and small enterprises Associations within the meaning of Section 2 of the Micro and Small Enterprises Act as read together with section 75 of the Act.c.That the Associations are based and operate in Iten Township.d.that the subject of this claim includes permanent structures that were constructed by the national government under the constituency industrial development centre (CIDC) project in Iten Township.
Issues For Determination
71.The following constitute issues for determination by this Tribunal:a.Whether the first Respondent is mandated to allocate workspace at the subject parcel of land situated in Iten CIDC township.b.Whether the 1st Respondent followed due process in allocation of workspace at the site known as Iten CIDC.c.Whether the 1st Respondent’s decision in allocating workspace at the Iten CIDC were in public interest, and consequently whether the 2nd Respondent’s interest, if any, over the suit property override the overall public interest.d.Who bears the cost of this claim?
Determination And Final Orders
A. Whether the 1st Respondent is Mandated to allocate workspace at the subject parcel of land known as Iten CIDC located in Iten Township among the MSE Associations operating in Iten Township
72.In its submissions, the 1st Respondent urged the Tribunal to take judicial notice of the historical aspects surrounding the Iten CIDC, including but not limited to the various government policies targeting the development of the MSE sector through the provision of the infrastructural facilities.
73.The 1st Respondent drew the Tribunal to the attention of the Sessional Paper No. 5 of 2020 on the Kenya micro and small enterprise policy and that accordingly, the paper provides a comprehensive background on policies enacted in the development of the micro and small enterprises sector. The 1st Respondent reiterated it’s mandate being the development, promotion and regulation of micro and small enterprises in line with the government policy on micro and small enterprises. The 1st Respondent further submitted that accordingly, it should not be lost that Section 2 of the Micro and Small Enterprises Act provides for the meaning of a micro enterprise as a firm, trade, service, industry or business activity whose turn over does not exceed 500,000 shillings and which equally employees less than 10 people with the total asset on investment portfolio as determined by the cabinet secretary responsible for matters relating to MSE. That the Act defines and Association as a group of not less than thirty five micro and small enterprises registered under the Act for the purpose of accessing common services and mobilizing resources for the development of the enterprises; and therefore the two Associations fall within the description recognised under the Act
74.Additionally, that, section 31 of the Act sets out the functions of the 1st Respondent and mandates it to formulate, review and monitor the implementation of policies and programs relating to or affecting MSE as well as to coordinate, harmonize and facilitate the integration of various public and private sector programs and development plans relating to MSE. In addition section 47 of the Act provides that the 1st Respondent should advise and facilitate the relevant government ministries and other agencies in developing worksite management policy and providing suitable infrastructure and common usage facilities necessary for the development of MSES. Further that section 32 of the Act empowers the 1st Respondent to use all the powers necessary to ensure its proper performance of the functions under the Act. The 1st Respondent urged the Tribunal to consider that it has the mandate under the Act to develop and implement policies on allocation of websites among the micro and small enterprises and that it was this mandate that it sought to discharge in the current case.
B) Whether the 1st Respondent followed due process in allocation of workspace at the site known as Iten CIDC
75.The 1st Respondent submitted that the subject matter of this claim involves a parcel of land registered under the letter of allotment to the Ministry of Labour and human resource development. In addition, the Constitution of Kenya under Article 162 defines public land as land lawfully held, used or occupied by any state organ. The subject parcel of land is registered in the name of Ministry of Labour and human resources development and qualifies as public land. Further the 1st Respondent implores upon the Tribunal to take judicial notice of the government of Kenya 2009 and 2010 economic stimulus program under which the ministry of industrialization and enterprise development was mandated to construct and equip Constituency Industrial Development Centres as MSE worksites in all the 210 constituencies. On the public land parcel earmarked for Juakali use, the 1st Respondent is charged with the management and control of all CIDCs nationally. The 1st Respondent submitted that the special conditions numbers 1, 5, 8 and 9 on the letter of allotment dated 1st March 2004 further lends credence to the fact that subject property is public land earmarked for Juakali use.
76.The 1st Respondent further submitted that as a state agency, it is bound by national values and principles of governance under Article 10 (2) of the Constitution. Equally Article 232 of the Constitution provides for the principles that informs public service and that these principles are binding on all state corporations whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or implements public policy decisions. As such, the 1st Respondent drew the Tribunal to the pleadings, exhibits and witness testimony in the suit and that it has been demonstrated that the 1st Respondent was alive to the Constitutional principles of inclusiveness, equality, non discrimination, good governance, transparency and accountability by assessing the workspace needs of the MSEs in Iten township and endeavoring to equitably share the same. In conclusion, the 1st Respondent submitted that it had properly interpreted the Constitution in its quest to ensure equity in allocation of workspace among the Associations operating in Iten Township.
C) WHether the 1st Respondent’s decision in allocating workspace at the iten cidc were in pursuance of public interest and consequences whether the 2nd Respondents interest, if any, over the suit property override the overall public interest
77.The 1st Respondent submitted that there exists a compelling overarching historical and legislative perspective on development of the MSE sector in relation to allocation of public land for worksites and infrastructure development. That the letter of allotment is registered in the joint names of the Ministry of Labor and human resource development and the 2nd Respondent. That the suit land has always been a public land that should not be appropriated for private use by one Association to the exclusion of others. This principle has been amplified in the case of Republic Vs- Commissioner of Lands and 4 Others Ex-Parte Associated Mill (2014) eklr, where the court upheld the doctrine of public trust. The court stated that where land is acquired for public purpose, such land must be used for purpose for which it was acquired and should not be allocated to private individuals for commercial purposes. Similarly in the Kenya National Highway authority vs- Shalien Masood Munghal and 5 others (2017) eklr, the court held that public land and resources held in trust for the needs of the society must be used for the very intended purpose. That the testimony of the the 2nd Respondents’ witnesses confirmed that the land belongs to the National government and that the 2nd Respondent’s name was included as the only existing beneficiary at the time in order to prevent land grabbing.
78.The special conditions of the letter of allotment makes it apparent that the spirit of the allotment intended that the land be set aside and used for Juakali purposes in perpetuity. The land held in public trust by the first Respondent ought not to lie idle nor be subdivided for private allocation. Further that the scarcity of available public land and restrictions in budgetary allocation would affect the expansion of workspaces a circumstance which limits the 1st Respondents efficacy in its discharge of the mandate of equitable allocation of the workspace.
79.The 1st Respondent affirmed that it had endeavoured to allocate the available workspace among the MSEs in Iten Township as mandated and in full compliance with the due process and prayed that the claim brought against it be dismissed with attendant costs in its favour.
80.On their part the 2nd Respondents submitted that the Iten CIDC land was allocated to the 2nd Respondent in conjunction with the Ministry of Labour and human resource development. They further submitted that they have a letter of allotment which was produced before the Tribunal and that as such the suit parcel of land is not available for allocation to third parties who are not members of the 2nd Respondent. In addition, they submitted that even though the 2nd Respondent has 63 members and that the space comprised in the suit has been fully utilized by allocation to its members and that even some members including the chairman are yet to benefit from allocation. They in the alternative have sought for the creation of new sites to cater for members that are yet to get workspace. The 2nd Respondent drew the Tribunal to the provisions of section 55 of the micro and small enterprises Act No. 55 of 2012 which provides thus:a.“if any dispute concerning the micro and small enterprises arises among members, past members and persons claiming through members past members of Associations and or administrators of the estate of the deceased members of the Association orb.between members, past members or administrators of the estate of the deceased members of the Association and the authority or any of their officers or members orc.between the authority and an Association it shall be referred to the Tribunal for determination.”Further, it drew the attention of the Tribunal the provisions of section 55 (2) which provides for disputes that the Tribunal has authority to determine including:a.commercial disputes involving micro and small enterprises;b.failure to comply with the terms and condition of allocation of worksites;c.election and management of Associations;d.failure to comply with the constitution or rules of a micro and small enterprise Association or umbrella organisation;e.unprocedural and illegal allocation, subdivision, subletting of a micro and small enterprise work site;f.mismanagement and misappropriation of funds;g.any other dispute acceptable by the Tribunal
81.It submitted that the Claim presented before the Tribunal is not among those that follow among the provisions that the Tribunal has jurisdiction to determine. However, in the event that the Tribunal deems it fit to determine, they submitted that the Claim by the claimants is not tenable in view of the evidence provided to the Tribunal. They urged the Tribunal not to interfere with the status quo as orders made otherwise would create anarchy and confusion and would create bad precedent as it would encourage other parties coming on board to claim what was rightly allocated to the 2nd Respondent.
82.Further, the second Respondent asked the Tribunal to consider the fact of the limited space at the Iten CIDC and that the 2nd Respondent has applied for allocation of space at the new industrial park that is being built by the National and County government. The 2nd Respondent further invited and encouraged the Claimants to also apply for workspace at the new industrial site and urged the Tribunal to wonder the criteria that would be used to remove members of the 2nd Respondent who have built sheds and what criteria would be used to settle the members of the claimant in the event the Tribunal would allow the Claim and keeping in mind that some members of the 2nd Respondent who are allottees are yet to fully benefit from the facility.
83.They drew the attention of the Tribunal to the site visit and urged the Tribunal to confirm that the place that the Claimants were carrying out their work was also government land. They finally submitted that the allegations by the claimants that they had been given notice to vacate was unfounded as it was not supported in evidence. They submitted that justice would be served to all parties if the Tribunal upheld the status quo by dismissing the Claim with costs to the 2nd Respondent.
D. Who bears the cost of this suit?
84.All the parties to this suit have asked for costs of the suit. In determining this issue, the Tribunal is guided by the provisions of section 27 of the Civil Procedure Act, Cap 21 Laws of Kenya which provides as follows:27(1)... provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.
85.In addition, the Tribunal is persuaded by the reasoning in the case of Republic vs. Rosemary Wairimu Munene, Ex Parte Applicant vs. Dairy Famers Co-Operative Society Ltd Judicial review Application No. 6 of 2014 where the court held that:
Determination
86.On the first issue on Whether the 1st Respondent is mandated to allocate workspace at the subject parcel of land known as Iten CIDC located in Iten township among the MSE Associations operating in Iten township, the Tribunal finds that indeed the 1st Respondent is mandated under sections 31, 32 and 47 as read together with sections 2 of the Act to allocate the workspace at the subject parcel of land known as Iten CIDC located in Iten township among the MSE Associations operating in Iten township. Consequently, the 1st Respondent should undertake this exercise while ensuring that the MSE Associations operating in Iten township have unhindered equitable access to the worksite known as Iten CIDC.
87.On the second issue on whether the 1st Respondent followed due process in allocation of workspace at the site known as Iten CIDC, the Tribunal finds that indeed the law mandates the 1st Respondent the requisite Authority to allocate the suit worksite and subsequently, in its bid to ensure equitable access to the Iten CIDC by all Associations operating in Iten Township equitable access, the 1st Respondent consulted the relevant parties and accorded each party a fair hearing. As far as the Tribunal is concerned, the 1st Respondent has not contravened any law nor any administrative process and therefore followed the due process. Consequently, the 2nd Respondent should refrain from interference of the 1st Respondent in the discharge of its legal mandate.
88.The Tribunal then turns to the third issue whether the 1st Respondent’s decision in allocating workspace at the Iten CIDC were in pursuance of public interest and consequences whether the 2nd Respondents’ interest, if any, over the suit property override the overall public interest. The Tribunal determines that the 1st Respondent fully complied with the constitutional tenets as supported by the relevant statutory framework and case law that the Iten ICDC being public land should not be appropriated for private use by one Association to the exclusion of others.
89.On the fourth issue on who bears the costs of the suit? The Tribunal acknowledges that the dispute is between the Claimant and the Authority on the one hand and on the other hand between the Claimant and its sister Association, operating within the same locality. The parties have a special relationship amongst each other and the Tribunal while exercising its discretion to award costs hereby refrains from saddling one party with the cost of this suit, and therefore requires each party will bear its own cost.
Orders
90.Flowing from the above reasoning, the Tribunal orders as follows:a.The 1st Respondent declares vacant possession of the suit parcel of land known as Iten CIDC to enable it to begin the process of equitable allocation of the workspace as law mandated. For the avoidance of doubt, this process mainly involving the removal of the temporary structures from the Iten CIDC worksite should take place within a period of 60 days.b.After the 60 day period, the 1st Respondent should undertake the process of equitable Allocation, management and administration of the infrastructure and common usage facilities necessary for the development of MSEs operating in Iten Township. This process should be undertaken within a period of 60 days.c.Common services and or utilities within the Iten CIDC as ascertained by the 1st Respondent should be accessible to the duly registered MSE Associations operating within the Iten Township without exclusion and or discrimination.d.The OCS Iten police station and the Iten County Enterprises Development Office (CEDO) to facilitate and supervise the compliance of the orders of this Tribunal.e.Each party to bear their own cost.Those then are the orders of this Tribunal.
DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023.Dr. J. BETT ........................................CHAIRMANR. KATINA….................VICE-CHAIRHON. J. WERE ……..............................MEMBERA. GIKUYA……………………..............................................[MEMBER}A. KIBET........................................................MEMBERJ K BIWOTT…………………………………………………………………………MEMBER9