Can I sue county 'askaris' for assault and destruction of my goods?
A street hawker along Moi Avenue sells vegetables to a customer in this file photo. County officers may have the authority to enforce county laws, including clearing traders from unauthorised areas; they are, however, not allowed to do so with excessive force or violence.
What you need to know:
- County governments have the authority to manage public spaces and regulate businesses, including informal vendors like you, under the devolved functions of the Constitution.
- County officers may have the authority to enforce county laws, including clearing traders from unauthorised areas; they are, however, not allowed to do so with excessive force or violence.
Dear Vivian,
I am a small-scale juice vendor. Recently, my fellow vendors and I were evicted from our usual selling area by county askaris. During this incident, some of us were physically assaulted, and our stock was destroyed. What can we do?
Mama Njeri,
Soko Mjinga Market
Dear Mama Njeri,
County governments have the authority to manage public spaces and regulate businesses, including informal vendors like you, under the devolved functions of the Constitution. However, this power must be exercised in a manner that upholds the law and fundamental rights. If the county government deemed it necessary to remove you and your fellow vendors from the trading area, there should have been prior notice and clear justification for such action.
Additionally, any relocation should have been handled in a humane and organised manner, ensuring that your means of livelihood were protected, or alternative trading areas provided.
While this is the position, it will be important to know if you were selling in a designated area. Further, it will be prudent if you had licences or permits to conduct business in the market. Your first point should be at the nearest police station, particularly for the offence of assault. County officers may have the authority to enforce county laws, including clearing traders from unauthorised areas; they are, however, not allowed to do so with excessive force or violence. In any case, the use of force must always be reasonable, proportionate, and within the confines of the law.
Physical assaults, in any context, violate your fundamental rights, particularly the right to security. This protection is enshrined in law, and any violation such as the assault you experienced is subject to legal redress. Similarly, the destruction of property, in this case your stock, is an infringement of your right to property, which is also protected by law.
You can seek justice by taking legal action against the individual officers involved in the assault and the county government itself for failing to ensure proper procedures were followed. You may file a civil suit claiming damages for the injuries sustained and for the destruction of your stock. This, however, will be pegged on you having licences and permits.
Relevant case law has established that state and county officers are liable when they violate citizens' rights in the course of their duties. Courts have previously awarded compensation to individuals who were victims of police or government officer brutality, highlighting that no authority is above the law when it comes to safeguarding the rights of citizens.
Finally, while the county government may regulate market spaces, any eviction must follow proper legal procedures. The actions of the askaris, in assaulting you and destroying your goods, were unlawful, and you have every right to seek legal redress. I would advise that you document everything related to the incident, including medical reports of the injuries sustained, photographs of any damaged goods and statements from witnesses.
Vivian
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
