Kakamega county government now wants the high court in Kakamega to dismiss a case seeking to stop the eviction of some tenants citing lack of jurisdiction.
In a notice of preliminary objection filed on Wednesday the county government sought the dismissal of the suit arguing that the the court has no jurisdiction to handle the matter.
The suit was initially filed by the tenants of Otiende and Amalemba estates who wanted the court to stop their eviction from the county government houses.
The county argues that the high court lacks jurisdiction to hear and determine the notice of motion and petition dated August 24, 2023 by virtue of Article 162(2) (b) of the constitution of Kenya and Section 13 of the Environment and Land Court Act, 2011.
“Take notice that the respondent will at the hearing hereof raise a preliminary objection for determination in limine and seek to have the petitioner's entire notice of motion and petition be struck out or dismissed,” the notice of objection filed on Tuesday reads.
“The entire notice of motion application and petition herewith dated August 24, 2023 is fatally defective, incompetent, misconceived, misplaced and an abuse of the process of this honourable court and ought to be dismissed with costs,” the notice further reads.
The county wants the temporary injunction orders issued by justice P.J. Otieno on August 24, restraining it from evicting the tenants from the two estates pending hearing and determination of a petition filed by tenants set aside or vacated and costs awarded.
Justice D.K. Kemei sitting at Bungoma High Court on Wednesday directed the county to file and serve the petitioner with the preliminary objection by September 15.
“The petitioner has up to September 19, upon being served to file and serve skeletal submissions on the preliminary objection,” the judge said.
He directed parties to orally highlight their respective submissions on September 20 upon which the ruling date on the question of jurisdiction of the court to hear the petition will be given.
Judge Kemei also extended interim orders issued to Onono by P.J. Otieno on August 24 temporarily stopping the county from evicting the tenants until the preliminary objection is heard and determined.
Onono moved to court through M/S Amasakha & Company Advocates and obtained conservatory orders after an attempt by the county enforcement officers to evict tenants from Otiende housing scheme in August 22 aborted.
He sued the county both as an individual tenant and on behalf of Otiende and Amalemba housing schemes tenants.
Onono said the vacation notices issued to the tenants by the county on May 2, 2023, asking them to hand over the houses by July 31 or risk being evicted are illegal and in contravention of their fundamental rights and freedoms.
He argues that the decision to ask the tenants to vacate the houses by July 31 was unfair because the respondent has not provided them with alternative housing, despite the fact that they have been in occupation of the houses for more than 30 years.
The petition further stated that the vacation notices were in contravention of the national policy on housing which provides for progressive provision of accessible and adequate housing.
It further stated that the tenants were not involved at all in the meeting that resolved that the houses should only be occupied by county staff.
"Members of the Otiende Estate Site and Service Scheme and Amalemba Rentals Site and Service Scheme applied for and were allocated these houses from the dwellings constructed by former local authority through financing by the National Housing Corporation (NHC). The allocation was done on the understanding that it was to be followed by a lease agreement with an option to purchase," said Onono.
The tenants claimed that the county government has declined to give them the lease and tenant purchase agreements in terms of the original housing policy.