Omollo & 2 others v County Government of Kisumu & 6 others (Environment and Land Petition E004 of 2026) [2026] KEELC 5361 (KLR)
The bottom line
#Kisumu tenants facing eviction under a county housing renewal notice won court protection: no evictions and no forced renewal consequences until the case is fully heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Preliminary Objection dated 24th July 2026 is merited
- 2.Whether the Petitioners have established a basis for the grant of conservatory orders pending the hearing and determination of the Petition, and if so, on what terms
- 3.What effect, if any, the challenge to the status of the 3rd Petitioner has upon the application
- 4.Who should bear the costs
Key legal issues
#Whether the preliminary objection on lack of cause of action and insufficient particulars was merited
Both grounds failed. The Petition identifies the impugned Notice, template, estates, constitutional provisions and particulars of violation; it discloses a cause of action and meets the Anarita Karimi Njeru/Mumo Matemu standard of reasonable precision
Whether a pleading discloses a cause of action is assessed on its face, taking averments as correct. The Petition identified a specific administrative instrument, date, deadline, template, objectionable clauses, withheld records and threatened consequences, and the Respondents' detailed reply showed the case was intelligible and answerable. Precision is not exactitude; the rule is one of fair notice.
Whether the exhaustion of alternative remedies objection was merited
It failed. The County Physical Planning and Land Use Liaison Committee is a planning appellate body without jurisdiction over the tenancy renewal and constitutional questions; no rent tribunal was identified, and its application is house-specific and undisclosed. Neither forum can grant the class-wide constitutional and structural relief sought
The doctrine presupposes a competent alternative forum. Nothing pleaded engages the Liaison Committee's appellate jurisdiction; the impugned instruments are a tenancy notice and agreement, not planning decisions. Whether the Rent Restriction Act applies depends on un-disclosed house-specific facts, and no statutory tribunal can grant Article 23 declarations, prerogative orders or class-wide structural relief.
Whether conservatory orders should issue pending the Petition
Yes, in calibrated terms. A prima facie case was established: the record-cleansing and regularisation character of the exercise was admitted; the Notice's deeming and repossession clauses are seriously arguable as unfair administrative action; the template's self-help clauses were unanswered; the prejudice is real and irreversible; and the Respondents suffer no comparable prejudice. The exercise itself was not suspended
The central facts were admitted, including that the exercise concerns deceased, retired, unregistered occupants and transfers to rightful beneficiaries. The Notice converts occupants into illegal occupiers by effluxion of time without criteria, reasons or objection rights. Homes lost cannot be restored and damages would be inadequate, while the calibrated orders stop only the coercive edge of the exercise.
The effect of the challenge to the 3rd Petitioner's status
No perjury finding was made at the interlocutory stage; imprecision is not perjury. Her status dispute in fact illustrates the Petitioners' case about the need for a fair deceased-tenant procedure, and the application would not fall with her standing given Articles 22 and 258
The documents she annexed, including the lease in her late father's name and her letter seeking a change of tenancy, are inconsistent with deception. The Petition is brought in the Petitioners' own interest, on behalf of a class and in the public interest, and the standing of the 1st and 2nd Petitioners was not challenged.
Legal principles established
#- The doctrine of exhaustion of remedies presupposes that the alternative forum has jurisdiction to grant the relief sought; naming a body without establishing its competence is insufficient
- A public authority cannot withhold the information necessary to identify the correct forum and then object that the wrong forum was approached
- An assurance of good intention does not withdraw, vary or suspend a written notice which remains in force
- Consent cannot cure unconstitutionality; there can be no estoppel against the enforcement of a fundamental right
- A public authority may not, by a clause in an instrument of its own drafting, license itself to do what the Constitution and the Land Act forbid
- The more serious the consequence of an administrative exercise, the more exacting are the requirements of fair administrative action
Court orders
#- 1.The Notice of Preliminary Objection dated 24th July 2026 is dismissed
- 2.The interim direction of 28th July 2026 that no person currently residing in Arina, Moscow (Mosque) or Argwings Kodhek Estate be evicted is confirmed and extended pending the hearing and determination of the Petition
- 3.A conservatory order suspending the implementation, enforcement and further operationalisation of those parts of the Notice dated 18th June 2026 deeming non-renewing tenants illegal and threatening repossession and reallocation, pending the hearing and determination of the Petition
- 4.A conservatory order that a tenant who has executed the tenancy agreement template shall not, by that execution alone, be treated as having waived any constitutional right, admitted the lawfulness of the impugned clauses, consented to eviction otherwise than by due process, or forfeited the right to challenge the process or template
- 5.Pending the hearing, the Respondents shall not reject records from the former Municipal Council of Kisumu or the National Housing Corporation as proof of lawful occupation solely on account of their source or era
- 6.Pending the hearing, the Respondents are restrained from destroying, altering, concealing, removing or interfering with handover instruments, tenant registers, house registers, rent ledgers, arrears schedules, payment records, tenancy files and correspondence relating to the affected estates, all of which shall be preserved intact
- 7.The Respondents shall within twenty-one (21) days file and serve the Notice dated 18th June 2026, the current tenancy agreement template, the handover instruments, and the provision of the Kisumu County Finance Act, 2026 relied upon for the KShs. 1,000 renewal fee
- 8.The Petitioners shall, if so advised, file and serve any further affidavit in response within fourteen (14) days of service
- 9.The Petition shall be canvassed by written submissions, with the Petitioners filing within twenty-one days of close of pleadings, the Respondents and Interested Party within twenty-one days of service, and the Petitioners seven days to reply
- 10.Each party shall bear own costs of the Preliminary Objection and the Notice of Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, 2011
Relief refused
#Suspension of the renewal, verification and regularisation exercise in its entirety
The Respondents are entitled to verify and maintain accurate records of public housing assets; only the coercive consequence of non-renewal was suspended
Mandatory wholesale disclosure orders in prayers 15 and 16 of the application
Granting them now would determine the Article 35 and Access to Information claims before hearing; directions for filing documents for a complete record were given instead
An order restraining rejection of Municipal Council and NHC-era records in mandatory terms
Granted only in a form reflecting the Respondents' own averment that such records are accepted, requiring nothing they do not already do
An order for filing of itemised rent ledgers for the three Petitioners as an order of disclosure
That relief forms part of the substantive Article 35 and Access to Information claim; the Court instead directed filing of documents it requires for a complete record
Costs
Each party shall bear own costs of the Notice of Preliminary Objection dated 24th July 2026 and of the Notice of Motion dated 17th July 2026.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Notice of Preliminary Objection dated 24th July 2026 is hereby dismissed.
Pending the hearing and determination of the Petition, a conservatory order be and is hereby issued suspending the implementation, enforcement and further operationalisation of those parts of the County Government of Kisumu Notice dated 18th June 2026
Each party shall bear own costs of the Notice of Preliminary Objection dated 24th July 2026 and of the Notice of Motion dated 17th July 2026.
A respondent cannot withhold the information necessary to identify the correct forum and then object that the wrong forum has been approached.
An objection which requires the ascertainment of such facts is not a preliminary objection properly so called.
A lawful objective does not immunise unlawful means.
The orders sought, properly calibrated, do not stop the administration of the estates. They stop only the coercive edge of the exercise.
Issues in the judgment
#The 4th Respondent is described as Bernard Ojwang in the Replying Affidavit but the identity/names of all six 1st to 6th Respondents are not set out individually in the extract; only the 1st Respondent (County Government of Kisumu) and 4th Respondent (Director of Housing) are identifiable
The Petitioners' addresses are given as House No. R3/40 in Moscow Estate and House No. R6/038 in Argwings Kodhek Estate, but later references use R6/38 for the same house
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omollo & 2 others v County Government of Kisumu & 6 others (Environment and Land Petition E004 of 2026) [2026] KEELC 5361 (KLR)", Case Analysis (2026). ELC Petition No. E004 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5361/eng@2026-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.