High Court halts Kakamega eviction of Otiende, Amalemba residents

The High Court in Kakamega has stopped the county government from evicting tenants of Otiende and Amalemba estates.

Justice PJ Otieno issued temporary injunction order restraining the county from ejecting tenants of the two estates pending hearing and determination of a petition filed by tenant Tom Onono.

“In the interim, a conservatory order of temporary injunction is hereby issued against the respondent, its officials and/or servants, restraining them from evicting the petitioners and other occupants/tenants of the houses constructed in Otiende and Amalemba estates,” the order dated August 24 stated.

Otieno certified the matter as urgent and fixed the case for hearing on September 13 before a vacation duty judge.

Onono moved to court after an attempt by the county enforcement officers to evict tenants from Otiende housing scheme on Tuesday morning aborted.

Onono filed the petition through M/S Amasakha & Company Advocates, both as individual tenant and on behalf of Otiende and Amalemba housing schemes tenants. 

The petition says that the vacate notices issued to the tenants by the county government requiring them to leave the houses by July 31 or be evicted contravenes the national policy on housing. The policy provides for progressive provision of accessible and adequate housing. 

He said the tenants were not involved at all prior to the said county executive committee decision of April 4, 2023, that resolved that the houses be left for occupation by county staff, contrary to Article 10 of the Constitution which provides for public participation.

“The notices were given despite the county having failed to provide recreational facilities and services as envisaged under the Housing Act and in further contravention of Article 43(b) of Constitution in regard to the provision of reasonable standards of sanitisation,” it read.

He said the former Municipal Council of Kakamega was, among other things, expected to provide roads, drains, open spaces, places of worship, places of recreation, facilities for social welfare and trading but failed to do so.

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 tenants argue that they have been repairing the houses they occupy using their own money and have family members and school children who will be disrupted by the abrupt notice. 

Onono said the vacate 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 argued that members of the Otiende Estate Site and Service Scheme and Amalemba Rentals Site and Service Scheme applied for and were allocated houses from the dwellings constructed by former local authority through financing by the National Housing Corporation (NHC).

He said the allocation was done on the understanding that it was to be followed by a lease agreement with an option to purchase. 

They said the county government has declined to give them the lease and tenant purchase agreements in terms of the original housing policy to date. 

Onono said the efforts by the tenants to obtain information pertaining to their tenancy of the contested houses have been frustrated by the county government.

Onono said the two schemes were established to provide affordable and decent housing for residents of Kakamega town in line with the government policy then and now in consonance with Article 43 of the Constitution.

He is that the decision by the government to reserve the two housing schemes for county staff was unfair, illegal and unconstitutional as they were not established by the defunct local authority for occupation by its employees and the defunct authority never attempted to do so.

“We have dutifully paid the rent fixed since acquisition to date,” he said. 

The tenants want the court to make a declaration that their fundamental rights and freedoms on the right to access affordable housing and sanitation as well as their right to fair administrative action and access to information have been breached by violating Article 10, 21(2), 27, 35, 40, 47 of the Constitution.

They also want the court to issue an order prohibiting the county government from interfering with their tenancy in respect of Amalemba and Otiende housing schemes. 

In the alternative, the tenants want the court to direct the county government to compensate and give them alternative housing.