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ELCDismissedELC Petition Number E001 of 2023· [2024] KEELC 3768 (KLR)

Ogunja (Suing on his own behalf as well as an official on behalf of the Otiende Estate Self Help Group) & 4 others v County Government of Kakamega (Environment and Land Petition E001, E002 & E003 of 2023 (Consolidated)) [2024] KEELC 3768 (KLR)

Environment and Land Court
25 April 2024
3,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed tenants' constitutional challenge to Kakamega County eviction notices, ruling that a landlord-tenant dispute must be fought in an ordinary contract suit.

What this practically means

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Executive summary

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Three consolidated petitions (ELC Petition Numbers E001, E002 and E003 of 2023) were filed against the County Government of Kakamega by long-standing tenants of the Otiende Estate and Amalemba II Estate rental housing schemes. The tenants, some occupying their houses for over thirty years, challenged notices dated 2nd May 2023 requiring them to vacate by 31st July 2023 following a county executive committee resolution reserving all county-owned houses exclusively for county staff. They sought declarations of breach of Articles 10, 21(2), 27, 35, 40, 43 and 47 of the Constitution, orders of certiorari to quash the notice, prohibitory orders, damages and alternative housing. The respondent, through Kelvin Marangu, accepted the landlord-tenant relationship, explained the history of the schemes under the National Housing Corporation and their handover under Section 134 of the County Government Act, and argued the dispute was purely contractual, terminable on three months' notice under clause 21(d) of the leases. The court, Ohungo J, framed two issues: whether the petitions disclosed a constitutional issue and whether the reliefs should issue. Applying the principle of constitutional avoidance, the court held that the admitted landlord-tenant relationship made the dispute contractual and that the petitions disclosed no constitutional issue. The Article 35 information claim also failed since tenants cannot disclaim knowledge of their own leases. All three petitions were dismissed with no order as to costs on 25th April 2024.

Key legal issues

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01

Whether the petitions disclose a constitutional issue

Holding

The petitions disclose no constitutional issue; the dispute is purely contractual between landlord and tenant and must be pursued in an ordinary suit under the law of contract and the lease terms.

Reasoning

The petitioners admitted a landlord-tenant relationship with the respondent. The court applied the principle of constitutional avoidance: where adequate alternative or statutory remedies exist, they must be pursued rather than constitutional jurisdiction. The petitioners themselves argued the validity of the termination notice against the lease terms, confirming the contractual nature of the dispute. Claims to housing rights under Article 43(b) and public participation under Article 10 could not convert the contractual dispute into a constitutional one.

p. 6
02

Whether the right to information under Article 35 was violated

Holding

No violation; tenants who admit a contractual relationship through lease agreements cannot claim ignorance of the details of that relationship.

Reasoning

The petitioners alleged the respondent failed to supply documents about the allocation of the houses. The court held that having admitted the existence of lease agreements and a landlord-tenant relationship, the petitioners could not claim they were unaware of the details of their own contractual relationship, so no breach of Article 35 arose.

p. 7
03

Whether the reliefs sought should issue

Holding

The reliefs cannot issue; the consolidated petitions lack merit and are dismissed with no order as to costs.

Reasoning

Since no constitutional issue was disclosed, the constitutional reliefs of declarations, certiorari, prohibition, damages and alternative housing could not be granted. The court found no merit in any of the three consolidated petitions and dismissed them with no order as to costs.

p. 7

Legal principles established

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  • Where ample alternative or statutory avenues exist for resolution of a dispute, they must be followed and constitutional jurisdiction should not be invoked (principle of constitutional avoidance).
  • An ordinary contractual dispute between landlord and tenant cannot be brought as a constitutional petition.

Court orders

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  1. 1.The consolidated petitions (ELC Petition Numbers E001, E002 and E003 of 2023) are dismissed

Authorities

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Legislation

  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 21(2)
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 35
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 43(b)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 62
  • Constitution of KenyaArticles 1, 19, 20, 61
  • Housing ActSection 8(1)(a)
  • County Government ActSection 134

Cases cited (9)

  • Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)
    Petition 3 of 2018 [2021] KESC 34 (KLR)
  • Robert N. Gakuru & Others v Governor Kiambu County & 3 others
    [2014] eKLR
  • Joseph Chilumo & 29 others v County Government of Kilifi
    [2017] eKLR
  • Stanley Kamere & 26 others v National Housing Corporation & 2 others
    [2015] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Kenya Youth Parliament & 2 others v Attorney General & 2 others
    [2012] eKLR
  • Githunguri Dairy Farmers Co-operative Society Ltd v Attorney General & 2 others
    [2016] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 10, 21(2), 27, 35, 40, 43, 47 as invoked by the petitioners; petition jurisdiction of the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ogunja (Suing on his own behalf as well as an official on behalf of the Otiende Estate Self Help Group) & 4 others v County Government of Kakamega (Environment and Land Petition E001, E002 & E003 of 2023 (Consolidated)) [2024] KEELC 3768 (KLR)", Case Analysis (2024). ELC Petition Number E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3768/eng@2024-04-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.