Seventy families ordered to vacate government houses or be evicted

Mark Shamwama, a resident of Otiende estate in Kakamega town ponder their next move after county enforcement officers forcefully evicted them from their houses on August 22, 2023. The victims received vacation notices in 2020 but they have been buying time in courts. [Benjamin Sakwa, Standard]

At least 70 families living in government houses at Otiende and Amalemba ="https://www.standardmedia.co.ke/article/2001496919/reinstated-kakamega-board-members-blocked-from-accessing-office"> estates in Kakamega The families living in the two estates have been served with notices to hand over the houses to the county government by the end of this month or face eviction.

“You are hereby directed to hand over above referenced house immediately but not later than June 31, 2024, to the county director of housing located adjacent to Kakamega municipal offices without fail,” read a notice to one of the occupants.

The notices dated June 6, 2024, are signed by the acting country director of housing Kevin Marangu and copied to the county Lands, Housing, Urban Areas and Physical Planning executive Dr Mariam Were and Housing and Urban Development Chief Officer Shakir Aden.

The county had earlier issued vacate notices to occupants in the two estates on May 2, 2023.

The tenants moved to court on August 24, 2023, and obtained orders restraining the county government from evicting them pending a hearing and determination of a petition they had filed against the county government.

In their petition, the tenants led by Tom Onono said the vacate notices issued to them requiring them to leave the houses by July 31, 2024, or be evicted contravened the national policy on housing which provides for provision of accessible and adequate housing. 

“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 the constitution in regard to the provision of reasonable standards of sanitisation,” they argued.

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

They said that the vacate notices were illegal and in contravention of their fundamental rights and freedoms.

They said that they applied for and were allocated houses constructed by the defunct local authority through financing by the National Housing Corporation.

According to them, the allocation was done on the understanding that it was to be followed by a lease agreement with an option to purchase but the county government declined to give them the lease and tenant purchase agreements. 

They wanted 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 sought 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.

But Kakamega Environment and Land Court Judge Dalmas Omumbo, said that the dispute should have been filed in a lower court and not the High Court.

“The resolution of the dispute between them must be pursued through an ordinary suit filed pursuant to the law of contract and in view of the terms of their leases. An ordinary claim disguised as a constitutional matter and filed in the constitutional court is a claim filed in the wrong court,” he said.

He said it was clear the petitioners did not demonstrate a constitutional issue beyond the contractual issues arising from the leases.

“Procedural law regarding constitutional matters is that where ample alternative or statutory avenues for resolution of a dispute exist, the alternative or statutory options for redress must be followed and the constitutional jurisdiction should not be invoked,” he ruled. 

“I find that the petitions do not disclose any constitutional issue and, in the circumstances, the reliefs sought cannot be issued. I find no merit in the consolidated petitions. I dismiss them with no order as to costs,” he said.