1. The three Petitioners are occupants of public rental housing within Kisumu City. The 1st Petitioner, Jacob Otieno Omollo, occupies a house in Arina Estate. The 2nd Petitioner, George W.O. Okara, occupies House No. R3/40 in Moscow Estate (also referred to in the papers as Mosque Estate). The 3rd Petitioner, Josephine Adhiambo Otiang'a, is in occupation of House No. R6/038 in Argwings Kodhek Estate.
2. It is common ground between the parties that Arina, Moscow and Argwings Kodhek Estates were, until about March 2026, under the management of the National Housing Corporation, and that management of those estates has since been handed over to the 1st Respondent. It is equally common ground that the 1st Respondent has embarked upon an exercise touching on the renewal, verification and regularisation of tenancies in County estates and institutional houses.
3. On 18th June 2026 the 4th Respondent issued a Notice of Renewal of Tenancy addressed to tenants of estates managed by the County. The Notice, as pleaded and as described in the affidavits, required tenants to present themselves for renewal of tenancy between 6th July 2026 and 14th August 2026, to produce specified documents including old tenancy agreements, identification documents, KRA PIN certificates, passport photographs and payslips, to clear alleged rent arrears, to pay a non-refundable renewal fee of KShs. 1,000, and to execute a fresh tenancy agreement. The Notice further stated that tenants who fail to renew by 14th August 2026 shall be deemed illegal tenants and their houses repossessed and reallocated.
4. Aggrieved by the Notice, by the terms of the tenancy agreement template presented to tenants for signature, and by what they describe as the absence of disclosure and of a fair verification and appeal framework, the Petitioners filed the Petition dated 17th July 2026 together with the Notice of Motion of even date.
5. There are two matters before me for determination. The first is the Notice of Preliminary Objection dated and filed on 24th July 2026 by the 1st to 6th Respondents. The second is the Notice of Motion dated 17th July 2026 by which the Petitioners seek conservatory and other interlocutory orders pending the hearing and determination of the Petition. Both were canvassed together.
6. When the matter came up before me on 28th July 2026 I directed, pending the hearing and determination of the application, that no person currently residing in Arina, Moscow and Argwings Kodhek Estates be evicted. I further directed that the Notice of Preliminary Objection and the Notice of Motion be canvassed together by way of written submissions, that the grounds of the Preliminary Objection be treated as the Respondents' answer to the Motion, and I allowed each party time within which to file and serve written submissions.
7. The Interested Party, the Kisumu City Board, did not file any response to either the Petition or the application.
The Petitioners' Application
8. The Notice of Motion dated 17th July 2026 is expressed to be brought under Articles 22, 23, 35, 40, 43, 47, 48, 159, 162(2)(b), 258 and 259 of the Constitution; sections 13(1), 13(2) and 13(7) of the Environment and Land Court Act, 2011; sections 4, 7, 9 and 11 of the Fair Administrative Action Act, 2015; sections 4, 5, 8 and 9 of the Access to Information Act, 2016; sections 152A to 152I of the Land Act, 2012; and Rules 3, 4, 10, 11, 19, 20, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
9. The application contains twenty prayers. Prayers 1 to 8 were framed as interim reliefs pending the inter partes hearing of the application. Prayers 9 to 17 seek substantially the same reliefs pending the hearing and determination of the Petition. Reduced to their essentials, the orders sought pending determination of the Petition are:
(a) a conservatory order suspending the implementation, enforcement and further operationalisation of the coercive parts of the Notice dated 18th June 2026, including the clause deeming tenants who have not renewed by 14th August 2026 to be illegal tenants and threatening repossession and reallocation;
(b) a conservatory order suspending the implementation, enforcement and further procurement of signatures on the current County tenancy agreement template;
(c) an order restraining the Respondents from evicting, locking out, repossessing, reallocating, harassing, intimidating, threatening, removing locks, entering by force, impounding goods, auctioning household property, terminating tenancy, declaring any tenant illegal or denying renewal on account of the impugned Notice, the impugned template, refusal to sign, or a signature already procured;
(d) a conservatory order that tenants who have signed the impugned template shall not, by that signature alone, be deemed to have waived their constitutional rights, admitted the lawfulness of the impugned clauses, consented to self-help eviction or forfeited the right to challenge the process;
(e) a conservatory order that tenants who have not signed the impugned template shall not be treated as illegal, non-compliant, ineligible for renewal, liable to repossession or liable to reallocation merely by reason of refusal or failure to sign;
(f) an order restraining the Respondents from rejecting Municipal Council and NHC-era records as credible proof of lawful occupation;
(g) an order restraining the Respondents from destroying, altering, concealing, removing, reconstructing or otherwise interfering with handover instruments, tenant registers, house registers, rent ledgers, arrears schedules, payment records, tenancy files and correspondence relating to the affected estates; and
(h) orders compelling disclosure and filing, within fourteen days, of the proposed tenancy template, the handover instruments, tenant and house registers, rent ledgers, arrears schedules, the legal basis of the KShs. 1,000 renewal fee, the criteria for verification, renewal, non-renewal, repossession, reallocation, objection and appeal, and disclosure of whether any affected houses are alleged to be excluded from the Rent Restriction Act.
10. The application is premised on eight grounds set out on its face and is supported by the affidavit of the 1st Petitioner, Jacob Otieno Omollo, sworn on 17th July 2026. The deponent avers that the affected houses have a long history under the former Municipal Council of Kisumu and the National Housing Corporation; that tenants hold varied historical documents including rent cards, receipts, bank slips, payslip deductions and correspondence; and that many households are constituted by widows, widowers, dependants, retirees and families in succession or dependency situations.
11. He deposes that the most frightening feature of the Notice was the threat that tenants who fail to renew by 14th August 2026 shall be deemed illegal tenants and their houses repossessed and reallocated; that the Notice did not disclose the proposed tenancy template, the handover records, the registers, the rent ledgers, the arrears schedules, the legal basis of the fee, or any verification and appeal mechanism; and that demand letters dated 1st July 2026 and 9th July 2026 issued through the Petitioners' advocates did not yield a satisfactory written undertaking.
12. As to the template, the 1st Petitioner deposes that it reduces long-standing residents to month-to-month occupants; provides for automatic lapse of tenancy for non-payment; permits the County to terminate and take possession without recourse to a court or tribunal; permits removal of locks and forcible entry; provides for impounding and auction of tenant goods; disclaims liability for loss of impounded goods; provides for water disconnection; imposes an annual renewal fee; and creates no verification, objection or appeal mechanism. He deposes that tenants have been divided by fear, some signing for fear of being declared illegal and others declining for fear of signing away their rights.
The Respondents' response and preliminary objection
13. The 1st to 6th Respondents opposed the application through the Replying Affidavit of Bernard Ojwang, the Director of Housing and Urban Development and the 4th Respondent herein, sworn on 24th July 2026, and through the Notice of Preliminary Objection of the same date.
14. Mr. Ojwang deposes that on 18th June 2026 he issued a Notice of Renewal of Tenancy to all estates managed by the County as is the usual administrative norm each year pursuant to reviews of the Kisumu County Finance Act; that the renewal of tenancy is not unique in estate management; and that the impugned Notice was not limited to Arina, Moscow and Argwings Kodhek Estates.
15. He confirms that the three estates were formerly managed by the National Housing Corporation until March 2026 and that the exercise is intended to cleanse the records received from the Corporation following the handover of management to the County. He states that the objectives of the exercise include verifying the names of tenants in occupation, given that many of the previous occupants are deceased, retired, have ceased to be employees of the 1st Respondent or were not registered at all; facilitating the lawful transfer of tenancies to rightful beneficiaries where applicable; and ensuring proper regulation of the estate assets in terms of planning compliance, security, law and order, having established the existence of multiple, haphazard and uncontrolled extensions, sub-lettings and informal structures.
16. Mr. Ojwang further deposes that the exercise for Argwings Kodhek Estate has been completed successfully, with tenants availing the required documents and obtaining renewals; that complaints recorded in a complaints/issues book have been addressed properly, promptly and fairly; that public engagements were conducted openly and accountably; that at the renewal venue at Mama Grace Onyango Hall no tenant is coerced or compelled to renew or to abandon a tenancy; and that a complaints/issues book is provided for those who wish to raise concerns. He annexes tenant petitions and administrative responses marked BO-1a, 1b and 1c, an attendance sheet marked BO-2, an extract of the complaints book marked BO-3 and the notice and minutes of the consultative meeting of 8th July 2026 marked BO-4a and 4b.
17. He deposes that the renewal fee of KShs. 1,000 is provided for by the Kisumu County Finance Act 2026 and is applicable to all tenants in houses managed by the County; that the Petitioners are acting out of unfounded fears and ignorance despite assurances given to tenants and their leadership; and that the 1st to 6th Respondents have no intention to unlawfully alter, terminate or evict any tenant who possesses right ownership documents.
18. Importantly for present purposes, Mr. Ojwang deposes at paragraph 22 that the Respondents continue to accept, recognise and adopt ownership records from the former Municipal Council and records from the National Housing Corporation as proof of lawful occupation, and have granted renewals on that basis.
19. As regards the 3rd Petitioner, Mr. Ojwang deposes at paragraphs 19 to 21 that according to the records received from the National Housing Corporation her name does not appear as a tenant; that her relationship with the person whose name appears in the records is not clear; that House No. R6/038 has rent arrears of KShs. 7,700 as at December 2025; and that the 3rd Petitioner, while aware that she is not the legal tenant, lied under oath by making a false deposition. He contends that this very circumstance demonstrates the necessity of the regularisation exercise.
20. Finally, he deposes that the Physical and Land Use Planning Act, 2019 grants the Respondents lawful powers of physical planning, urban renewal and development control; that the Respondents have, pursuant to section 76 of that Act, established the County Physical Planning and Land Use Liaison Committee before which the Petitioners ought to have pursued their grievances; and that the Petition and application are premature and constitute an attempt to curb the administrative functions of the Respondents.
21. The Notice of Preliminary Objection raises four grounds, namely: that the Petition discloses no cause of action against the Respondents; that the matters raised fall within the jurisdiction of separate and distinct statutory bodies including the County Physical Planning and Liaison Committee established under section 76 of the Physical and Land Use Planning Act, Cap. 303, and rent tribunals, and that the Court ought to discourage invocation of the constitutional process where an alternative statutory remedy exists; that the Petition offends the principles in Anarita Karimi Njeru and Mumo Matemu on the disclosure of particulars of violations; and that the suit is accordingly fatally defective ab initio, incompetent and an abuse of the process of the Court, and should be dismissed with costs.
The Petitioners' Further Affidavits
22. The Petitioners responded by two Further Affidavits, both sworn on 27th July 2026.
23. In his Further Affidavit, the 1st Petitioner maintains that the Petitioners do not oppose lawful tenant verification, lawful rent reconciliation, proper estate management, recovery of lawfully established arrears or the enforcement of planning and safety requirements through due process; and that what is challenged is coercion, non-disclosure, threatened prejudice and the use of a tenancy instrument that purports to permit self-help enforcement outside lawful process.
24. He contends that the Replying Affidavit confirms rather than displaces the factual foundation of the Petition, in that it admits the issuance of the Notice, the prior management of the estates by the National Housing Corporation and the record-cleansing and regularisation character of the exercise; that the admission that the exercise concerns deceased, retired, unregistered and to-be-regularised occupants shows that this is not a routine clerical renewal but a consequential transition affecting homes, family succession, historical records, rent accounts and long occupation; and that the more consequential the exercise, the greater the need for prior disclosure, an accessible verification process, written reasons and an effective objection or review mechanism.
25. He deposes that the denial of coercion does not answer the express terms of the Notice; that no oral assurance, complaint book or subsequent meeting has withdrawn, varied or suspended the written threat; and that a complaints book without disclosed rules, timelines, an identified decision-maker, written reasons, a right of review and a stay of adverse action is not an adequate substitute for a fair verification, objection and appeal framework. He points to the Respondents' own minutes marked BO-4 as recording that tenants lacked some of the requested documents, that original tenants had died, that households were occupied by widows, widowers and orphans, that tenants asked the County to rely on NHC records, and that the County's recorded response was that disputes, transfers and changes of names would be addressed after the renewal exercise.
26. He further deposes that the Replying Affidavit does not specifically answer the pleaded challenge to the clauses of the template; that the assertion regarding the KShs. 1,000 fee is not accompanied by the relevant statutory provision or schedule; that the Respondents have not placed before the Court the handover instruments, registers, ledgers, arrears schedules or written criteria; and that the Respondents did not, before the filing of the Petition, identify any statutory body capable of granting the class-wide conservatory, declaratory, disclosure, judicial review and structural relief sought.
27. The 3rd Petitioner swore a separate Further Affidavit responding to paragraphs 19, 20 and 21 of the Replying Affidavit. She deposes that House No. R6/038 is the long-standing family home of her late father, James Douglas Otiang'a, in whose name the tenancy was registered, and that she is his biological daughter; that the family has occupied the house openly and continuously since 1979; and that following her father's death the house did not become vacant, abandoned, transferred to a stranger or occupied through an unauthorised sale or subletting, but remained the home of his surviving family.
28. She deposes that she has never represented to the Court that the register had already been formally amended to substitute her name for that of her late father; that she described herself as an affected tenant and resident because she is in actual family occupation of the premises and her security of residence is directly affected by the impugned process; and that the description was made in good faith and was not intended to mislead the Court. She annexes, collectively marked JAO-1, a copy of her national identity card, a copy of the National Housing Corporation lease agreement for House No. R6/38 Argwings Kodhek Estate in the name of James Douglas Otiang'a, death certificates in respect of James Douglas Otiang'a and Zilpa Auma Otiang'a, her letter to the County Director of Housing requesting change of tenancy ownership bearing a County receipt stamp, and payment records.
29. She deposes that the alleged arrears of KShs. 7,700 are unsupported by any individual, itemised and reconciled rent ledger served upon her or the family; that neither she nor her family claims immunity from lawful rent and they remain ready to participate in reconciliation of the account; and that she does not seek, through this interlocutory application, a final determination of succession to her late father's estate or an automatic transfer of the tenancy into her name, but only preservation of the family home and a fair opportunity for the family's position to be considered before any adverse action.
Submissions
30. The Petitioners filed written submissions dated 4th August 2026 settled by Mr. Nyamori, learned counsel for the Petitioners/Applicants, together with a list of authorities. I have read them with care. Counsel frames the application as raising a short but important question of public law, namely whether a public landlord may continue a process which threatens to classify long-standing residents as illegal, procure signatures to a standard-form tenancy instrument containing self-help enforcement clauses, and postpone the resolution of disputed records, succession and rent accounts until after renewal.
31. Counsel is at pains to define what is not sought. The Petitioners claim no immunity from lawful rent, no licence to sublet, no protection for unsafe development and no judicial takeover of County housing administration. They accept the County's power to verify occupants, reconcile accounts, maintain the estates and enforce planning and safety requirements through law. Their complaint is directed to the means, the sequence and the safeguards by which that power is exercised. The County, it is submitted, may verify, regulate and reconcile; but it may not declare first and hear later, compel first and disclose later, or place itself above court and tribunal process through a document of its own drafting.
32. On the Preliminary Objection, counsel relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 and submits that a point which depends upon disputed evidence, upon the suitability of a remedy, upon the contents and operation of an instrument, or upon the exercise of judicial discretion, belongs to the merits and not to a threshold objection. He submits that the first and third grounds may be tested on the face of the Petition but fail on that face; that the exhaustion ground depends upon jurisdictional facts which the Respondents have neither identified nor established; and that the fourth ground is a conclusion rather than an independent point of law.
33. On the sufficiency of the pleading, counsel relies on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR for the proposition that precision is not coterminous with exactitude, the object of the rule being fair notice and the definition of the controversy rather than the observance of ritual formulae. He submits that each constitutional provision invoked is tied to an identified act: Article 47 and sections 4 and 5 of the Fair Administrative Action Act to the threat of illegality and repossession, the absence of prior disclosure, reasons and review, and the sequencing of disputes after renewal; Article 35 and the Access to Information Act to identified handover instruments, registers, ledgers, fee authority and decision criteria; Articles 28 and 43 to the security and dignity of the home; Article 40 to existing tenancy interests and household goods rather than to any unpleaded claim of ownership; and Article 48 to the clauses purporting to authorise enforcement without court or tribunal process. He adds that the Respondents' ability to answer each of those matters comprehensively is itself practical confirmation that they understood the case they were called upon to meet.
34. On exhaustion of remedies, counsel accepts the orthodox rule in Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR , but submits that the antecedent question is whether an applicable mechanism exists for the actual dispute before the Court. Section 76 of the Physical and Land Use Planning Act, 2019 merely establishes the County Liaison Committee, whose functions are prescribed by section 78 and concern complaints and claims relating to applications submitted to a planning authority, appeals from decisions on physical and land use development plans, advice on planning policy, and appeals concerning enforcement notices issued under section 72. No planning application, development plan decision, subdivision decision or enforcement notice is challenged in these proceedings. The impugned instruments are a tenancy renewal notice and a tenancy agreement, and calling the process urban renewal or referring to illegal extensions cannot convert a tenancy instrument into a planning appeal.
35. As to the reference to rent tribunals, counsel submits that it is indeterminate: the Respondents identify no tribunal, no appealable decision, no statutory procedure invoked by the Notice, and no provision empowering a tribunal to suspend a county-wide notice, to interrogate the constitutionality of a standard county instrument, to protect signed and unsigned residents as a class, to compel transition records or to grant relief under Article 23. He submits further that the applicability of the Rent Restriction Act, Cap. 296 is house-specific, depending under sections 2 and 3 upon the standard rent, upon whether the dwelling house is an excepted dwelling house and upon whether the tenancy is a service tenancy, and that no standard rent determination, Gazette exception or house by house classification has been supplied. If the Act applies, section 14 reinforces the Petitioners' case that possession is obtained through the Tribunal upon lawful grounds and reasonableness; if it does not apply, the unnamed tribunal cannot be the mandatory forum. He relies on William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR for the proposition that the court must examine the suitability of the alternative mechanism, the quality of audience it affords and whether it can determine the issues and grant effective relief; and he invokes, in the alternative, section 9(4) of the Fair Administrative Action Act, inviting the Court, if necessary, to deem the Motion an application for exemption in the interests of justice.
36. On conservatory relief, counsel relies on Article 23(3) of the Constitution, Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR . He submits that the evidential threshold is comfortably exceeded: the central documents are before the Court; the Notice and the template are not denied; the transition from the National Housing Corporation and the record-cleansing character of the exercise are admitted; the tenants' concerns are recorded in the County's own minutes; and the self-help clauses remain unanswered. He relies on Judicial Service Commission v Mbalu Mutava & another [2015] eKLR for the proposition that Article 47 has transformed administrative law from a narrow inquiry into power into a constitutional inquiry into lawful, reasonable and fair process, and on Kenya Revenue Authority v Export Trading Company Ltd [2022] KESC 31 (KLR) for the proposition that the possession of statutory power does not answer the distinct question whether the process employed is fair.
37. Counsel submits that the County's reliance upon the later consultative meetings does not cure the difficulty, because consultation is not a ceremony held after the operative threat and the signing process have commenced; it must be informed, timely and capable of affecting the decision. He cites, as persuasive authority, Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg [2008] ZACC 1 , in which meaningful engagement was described as a two-way process requiring openness and genuine attention to the consequences of displacement, and Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7, in which the need for individualised, dignified and equitable treatment of long-standing and vulnerable households was emphasised; and he submits that those principles accord with Articles 10, 28, 43, 47 and 174 of our Constitution.
38. On the template, counsel submits that Article 2(4) renders conduct inconsistent with the Constitution invalid and that Article 24 requires any limitation of rights to be by law and to be demonstrably reasonable and justifiable; that a standard-form contract drafted by a public authority is not a legislative warrant to exclude court process, break locks, enter by force, seize goods or sell household property; that even an unlawful occupier of public land may be evicted only in accordance with sections 152A and 152B of the Land Act, 2012, so that a fortiori residents whose occupation arose under Municipal Council or National Housing Corporation arrangements cannot be converted into illegal occupants and removed by administrative self-help; and that the Distress for Rent Act, Cap. 293 regulates distress, licensed auctioneers, notice, valuation, time and sale, so that a clause permitting the County to impound goods for rent default or for any other reason, to disclaim liability and to auction after a process of its own devising is at the least seriously contestable.
39. On disclosure, counsel submits that section 4(3)(g) of the Fair Administrative Action Act requires disclosure of the information and evidence relied upon before adverse action is taken, and that Article 35 and sections 4 and 5 of the Access to Information Act proceed from a duty to disclose. The Petitioners do not seek the indiscriminate publication of private tenant data; redacted extracts, house-specific ledgers, inspection by counsel or filing under seal would meet the case. As to the renewal fee, they seek not exemption from a charge proved to be lawful but disclosure of its legal basis before it is made a condition of renewal.
40. On the challenge to the 3rd Petitioner, counsel submits that her clarification reinforces rather than defeats the case; that the absence of her name from an inherited register is not proof that she is a stranger but is precisely the reason a fair deceased-tenant and family-occupation procedure is required; that the alleged arrears are unsupported by any itemised ledger and cannot determine biological relationship, erase forty-seven years of family occupation or justify an interlocutory finding of perjury; and that in any event Articles 22 and 258 permit proceedings by affected persons, on behalf of a class and in the public interest, so that the Motion does not stand or fall with the 3rd Petitioner's individual status.
41. On prejudice, counsel submits that the danger is not confined to physical eviction. Without broader preservation, signatures may continue to be procured under the outstanding threat; unsigned residents may be marked non-compliant; records may be altered or relied upon without challenge; houses may be administratively repossessed or reallocated; and household goods may be exposed to self-help remedies, so that by the time the Petition is heard the legal and factual position may have been transformed. He submits that the existing direction of 28th July 2026 is important but temporary, enduring only until the determination of the Motion, and that unless it is continued and made effective against the cognate forms of dispossession the Petition may become an inquiry into a fait accompli. He further submits that a signature already procured cannot be treated as a waiver of constitutional review, relying on Article 2 and on the persuasive reasoning in Olga Tellis & others v Bombay Municipal Corporation & others (1985) 3 SCC 545 that there can be no estoppel against the enforcement of fundamental rights.
42. On the balance of convenience and the public interest, counsel accepts that the public interest does not lie on one side only. There is, he concedes, a genuine public interest in accurate records, lawful rent collection, the protection of public housing, the prevention of subletting and compliance with sa
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2. It is common ground between the parties that Arina, Moscow and Argwings Kodhek Estates were, until about March 2026, under the management of the National Housing Corporation, and that management of those estates has since been handed over to the 1st Respondent. It is equally common ground that the 1st Respondent has embarked upon an exercise touching on the renewal, verification and regularisation of tenancies in County estates and institutional houses.
3. On 18th June 2026 the 4th Respondent issued a Notice of Renewal of Tenancy addressed to tenants of estates managed by the County. The Notice, as pleaded and as described in the affidavits, required tenants to present themselves for renewal of tenancy between 6th July 2026 and 14th August 2026, to produce specified documents including old tenancy agreements, identification documents, KRA PIN certificates, passport photographs and payslips, to clear alleged rent arrears, to pay a non-refundable renewal fee of KShs. 1,000, and to execute a fresh tenancy agreement. The Notice further stated that tenants who fail to renew by 14th August 2026 shall be deemed illegal tenants and their houses repossessed and reallocated.
4. Aggrieved by the Notice, by the terms of the tenancy agreement template presented to tenants for signature, and by what they describe as the absence of disclosure and of a fair verification and appeal framework, the Petitioners filed the Petition dated 17th July 2026 together with the Notice of Motion of even date.
5. There are two matters before me for determination. The first is the Notice of Preliminary Objection dated and filed on 24th July 2026 by the 1st to 6th Respondents. The second is the Notice of Motion dated 17th July 2026 by which the Petitioners seek conservatory and other interlocutory orders pending the hearing and determination of the Petition. Both were canvassed together.
6. When the matter came up before me on 28th July 2026 I directed, pending the hearing and determination of the application, that no person currently residing in Arina, Moscow and Argwings Kodhek Estates be evicted. I further directed that the Notice of Preliminary Objection and the Notice of Motion be canvassed together by way of written submissions, that the grounds of the Preliminary Objection be treated as the Respondents' answer to the Motion, and I allowed each party time within which to file and serve written submissions.
7. The Interested Party, the Kisumu City Board, did not file any response to either the Petition or the application.
The Petitioners' Application
8. The Notice of Motion dated 17th July 2026 is expressed to be brought under Articles 22, 23, 35, 40, 43, 47, 48, 159, 162(2)(b), 258 and 259 of the Constitution; sections 13(1), 13(2) and 13(7) of the Environment and Land Court Act, 2011; sections 4, 7, 9 and 11 of the Fair Administrative Action Act, 2015; sections 4, 5, 8 and 9 of the Access to Information Act, 2016; sections 152A to 152I of the Land Act, 2012; and Rules 3, 4, 10, 11, 19, 20, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
9. The application contains twenty prayers. Prayers 1 to 8 were framed as interim reliefs pending the inter partes hearing of the application. Prayers 9 to 17 seek substantially the same reliefs pending the hearing and determination of the Petition. Reduced to their essentials, the orders sought pending determination of the Petition are:
(a) a conservatory order suspending the implementation, enforcement and further operationalisation of the coercive parts of the Notice dated 18th June 2026, including the clause deeming tenants who have not renewed by 14th August 2026 to be illegal tenants and threatening repossession and reallocation;
(b) a conservatory order suspending the implementation, enforcement and further procurement of signatures on the current County tenancy agreement template;
(c) an order restraining the Respondents from evicting, locking out, repossessing, reallocating, harassing, intimidating, threatening, removing locks, entering by force, impounding goods, auctioning household property, terminating tenancy, declaring any tenant illegal or denying renewal on account of the impugned Notice, the impugned template, refusal to sign, or a signature already procured;
(d) a conservatory order that tenants who have signed the impugned template shall not, by that signature alone, be deemed to have waived their constitutional rights, admitted the lawfulness of the impugned clauses, consented to self-help eviction or forfeited the right to challenge the process;
(e) a conservatory order that tenants who have not signed the impugned template shall not be treated as illegal, non-compliant, ineligible for renewal, liable to repossession or liable to reallocation merely by reason of refusal or failure to sign;
(f) an order restraining the Respondents from rejecting Municipal Council and NHC-era records as credible proof of lawful occupation;
(g) an order restraining the Respondents from destroying, altering, concealing, removing, reconstructing or otherwise interfering with handover instruments, tenant registers, house registers, rent ledgers, arrears schedules, payment records, tenancy files and correspondence relating to the affected estates; and
(h) orders compelling disclosure and filing, within fourteen days, of the proposed tenancy template, the handover instruments, tenant and house registers, rent ledgers, arrears schedules, the legal basis of the KShs. 1,000 renewal fee, the criteria for verification, renewal, non-renewal, repossession, reallocation, objection and appeal, and disclosure of whether any affected houses are alleged to be excluded from the Rent Restriction Act.
10. The application is premised on eight grounds set out on its face and is supported by the affidavit of the 1st Petitioner, Jacob Otieno Omollo, sworn on 17th July 2026. The deponent avers that the affected houses have a long history under the former Municipal Council of Kisumu and the National Housing Corporation; that tenants hold varied historical documents including rent cards, receipts, bank slips, payslip deductions and correspondence; and that many households are constituted by widows, widowers, dependants, retirees and families in succession or dependency situations.
11. He deposes that the most frightening feature of the Notice was the threat that tenants who fail to renew by 14th August 2026 shall be deemed illegal tenants and their houses repossessed and reallocated; that the Notice did not disclose the proposed tenancy template, the handover records, the registers, the rent ledgers, the arrears schedules, the legal basis of the fee, or any verification and appeal mechanism; and that demand letters dated 1st July 2026 and 9th July 2026 issued through the Petitioners' advocates did not yield a satisfactory written undertaking.
12. As to the template, the 1st Petitioner deposes that it reduces long-standing residents to month-to-month occupants; provides for automatic lapse of tenancy for non-payment; permits the County to terminate and take possession without recourse to a court or tribunal; permits removal of locks and forcible entry; provides for impounding and auction of tenant goods; disclaims liability for loss of impounded goods; provides for water disconnection; imposes an annual renewal fee; and creates no verification, objection or appeal mechanism. He deposes that tenants have been divided by fear, some signing for fear of being declared illegal and others declining for fear of signing away their rights.
The Respondents' response and preliminary objection
13. The 1st to 6th Respondents opposed the application through the Replying Affidavit of Bernard Ojwang, the Director of Housing and Urban Development and the 4th Respondent herein, sworn on 24th July 2026, and through the Notice of Preliminary Objection of the same date.
14. Mr. Ojwang deposes that on 18th June 2026 he issued a Notice of Renewal of Tenancy to all estates managed by the County as is the usual administrative norm each year pursuant to reviews of the Kisumu County Finance Act; that the renewal of tenancy is not unique in estate management; and that the impugned Notice was not limited to Arina, Moscow and Argwings Kodhek Estates.
15. He confirms that the three estates were formerly managed by the National Housing Corporation until March 2026 and that the exercise is intended to cleanse the records received from the Corporation following the handover of management to the County. He states that the objectives of the exercise include verifying the names of tenants in occupation, given that many of the previous occupants are deceased, retired, have ceased to be employees of the 1st Respondent or were not registered at all; facilitating the lawful transfer of tenancies to rightful beneficiaries where applicable; and ensuring proper regulation of the estate assets in terms of planning compliance, security, law and order, having established the existence of multiple, haphazard and uncontrolled extensions, sub-lettings and informal structures.
16. Mr. Ojwang further deposes that the exercise for Argwings Kodhek Estate has been completed successfully, with tenants availing the required documents and obtaining renewals; that complaints recorded in a complaints/issues book have been addressed properly, promptly and fairly; that public engagements were conducted openly and accountably; that at the renewal venue at Mama Grace Onyango Hall no tenant is coerced or compelled to renew or to abandon a tenancy; and that a complaints/issues book is provided for those who wish to raise concerns. He annexes tenant petitions and administrative responses marked BO-1a, 1b and 1c, an attendance sheet marked BO-2, an extract of the complaints book marked BO-3 and the notice and minutes of the consultative meeting of 8th July 2026 marked BO-4a and 4b.
17. He deposes that the renewal fee of KShs. 1,000 is provided for by the Kisumu County Finance Act 2026 and is applicable to all tenants in houses managed by the County; that the Petitioners are acting out of unfounded fears and ignorance despite assurances given to tenants and their leadership; and that the 1st to 6th Respondents have no intention to unlawfully alter, terminate or evict any tenant who possesses right ownership documents.
18. Importantly for present purposes, Mr. Ojwang deposes at paragraph 22 that the Respondents continue to accept, recognise and adopt ownership records from the former Municipal Council and records from the National Housing Corporation as proof of lawful occupation, and have granted renewals on that basis.
19. As regards the 3rd Petitioner, Mr. Ojwang deposes at paragraphs 19 to 21 that according to the records received from the National Housing Corporation her name does not appear as a tenant; that her relationship with the person whose name appears in the records is not clear; that House No. R6/038 has rent arrears of KShs. 7,700 as at December 2025; and that the 3rd Petitioner, while aware that she is not the legal tenant, lied under oath by making a false deposition. He contends that this very circumstance demonstrates the necessity of the regularisation exercise.
20. Finally, he deposes that the Physical and Land Use Planning Act, 2019 grants the Respondents lawful powers of physical planning, urban renewal and development control; that the Respondents have, pursuant to section 76 of that Act, established the County Physical Planning and Land Use Liaison Committee before which the Petitioners ought to have pursued their grievances; and that the Petition and application are premature and constitute an attempt to curb the administrative functions of the Respondents.
21. The Notice of Preliminary Objection raises four grounds, namely: that the Petition discloses no cause of action against the Respondents; that the matters raised fall within the jurisdiction of separate and distinct statutory bodies including the County Physical Planning and Liaison Committee established under section 76 of the Physical and Land Use Planning Act, Cap. 303, and rent tribunals, and that the Court ought to discourage invocation of the constitutional process where an alternative statutory remedy exists; that the Petition offends the principles in Anarita Karimi Njeru and Mumo Matemu on the disclosure of particulars of violations; and that the suit is accordingly fatally defective ab initio, incompetent and an abuse of the process of the Court, and should be dismissed with costs.
The Petitioners' Further Affidavits
22. The Petitioners responded by two Further Affidavits, both sworn on 27th July 2026.
23. In his Further Affidavit, the 1st Petitioner maintains that the Petitioners do not oppose lawful tenant verification, lawful rent reconciliation, proper estate management, recovery of lawfully established arrears or the enforcement of planning and safety requirements through due process; and that what is challenged is coercion, non-disclosure, threatened prejudice and the use of a tenancy instrument that purports to permit self-help enforcement outside lawful process.
24. He contends that the Replying Affidavit confirms rather than displaces the factual foundation of the Petition, in that it admits the issuance of the Notice, the prior management of the estates by the National Housing Corporation and the record-cleansing and regularisation character of the exercise; that the admission that the exercise concerns deceased, retired, unregistered and to-be-regularised occupants shows that this is not a routine clerical renewal but a consequential transition affecting homes, family succession, historical records, rent accounts and long occupation; and that the more consequential the exercise, the greater the need for prior disclosure, an accessible verification process, written reasons and an effective objection or review mechanism.
25. He deposes that the denial of coercion does not answer the express terms of the Notice; that no oral assurance, complaint book or subsequent meeting has withdrawn, varied or suspended the written threat; and that a complaints book without disclosed rules, timelines, an identified decision-maker, written reasons, a right of review and a stay of adverse action is not an adequate substitute for a fair verification, objection and appeal framework. He points to the Respondents' own minutes marked BO-4 as recording that tenants lacked some of the requested documents, that original tenants had died, that households were occupied by widows, widowers and orphans, that tenants asked the County to rely on NHC records, and that the County's recorded response was that disputes, transfers and changes of names would be addressed after the renewal exercise.
26. He further deposes that the Replying Affidavit does not specifically answer the pleaded challenge to the clauses of the template; that the assertion regarding the KShs. 1,000 fee is not accompanied by the relevant statutory provision or schedule; that the Respondents have not placed before the Court the handover instruments, registers, ledgers, arrears schedules or written criteria; and that the Respondents did not, before the filing of the Petition, identify any statutory body capable of granting the class-wide conservatory, declaratory, disclosure, judicial review and structural relief sought.
27. The 3rd Petitioner swore a separate Further Affidavit responding to paragraphs 19, 20 and 21 of the Replying Affidavit. She deposes that House No. R6/038 is the long-standing family home of her late father, James Douglas Otiang'a, in whose name the tenancy was registered, and that she is his biological daughter; that the family has occupied the house openly and continuously since 1979; and that following her father's death the house did not become vacant, abandoned, transferred to a stranger or occupied through an unauthorised sale or subletting, but remained the home of his surviving family.
28. She deposes that she has never represented to the Court that the register had already been formally amended to substitute her name for that of her late father; that she described herself as an affected tenant and resident because she is in actual family occupation of the premises and her security of residence is directly affected by the impugned process; and that the description was made in good faith and was not intended to mislead the Court. She annexes, collectively marked JAO-1, a copy of her national identity card, a copy of the National Housing Corporation lease agreement for House No. R6/38 Argwings Kodhek Estate in the name of James Douglas Otiang'a, death certificates in respect of James Douglas Otiang'a and Zilpa Auma Otiang'a, her letter to the County Director of Housing requesting change of tenancy ownership bearing a County receipt stamp, and payment records.
29. She deposes that the alleged arrears of KShs. 7,700 are unsupported by any individual, itemised and reconciled rent ledger served upon her or the family; that neither she nor her family claims immunity from lawful rent and they remain ready to participate in reconciliation of the account; and that she does not seek, through this interlocutory application, a final determination of succession to her late father's estate or an automatic transfer of the tenancy into her name, but only preservation of the family home and a fair opportunity for the family's position to be considered before any adverse action.
Submissions
30. The Petitioners filed written submissions dated 4th August 2026 settled by Mr. Nyamori, learned counsel for the Petitioners/Applicants, together with a list of authorities. I have read them with care. Counsel frames the application as raising a short but important question of public law, namely whether a public landlord may continue a process which threatens to classify long-standing residents as illegal, procure signatures to a standard-form tenancy instrument containing self-help enforcement clauses, and postpone the resolution of disputed records, succession and rent accounts until after renewal.
31. Counsel is at pains to define what is not sought. The Petitioners claim no immunity from lawful rent, no licence to sublet, no protection for unsafe development and no judicial takeover of County housing administration. They accept the County's power to verify occupants, reconcile accounts, maintain the estates and enforce planning and safety requirements through law. Their complaint is directed to the means, the sequence and the safeguards by which that power is exercised. The County, it is submitted, may verify, regulate and reconcile; but it may not declare first and hear later, compel first and disclose later, or place itself above court and tribunal process through a document of its own drafting.
32. On the Preliminary Objection, counsel relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 and submits that a point which depends upon disputed evidence, upon the suitability of a remedy, upon the contents and operation of an instrument, or upon the exercise of judicial discretion, belongs to the merits and not to a threshold objection. He submits that the first and third grounds may be tested on the face of the Petition but fail on that face; that the exhaustion ground depends upon jurisdictional facts which the Respondents have neither identified nor established; and that the fourth ground is a conclusion rather than an independent point of law.
33. On the sufficiency of the pleading, counsel relies on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR for the proposition that precision is not coterminous with exactitude, the object of the rule being fair notice and the definition of the controversy rather than the observance of ritual formulae. He submits that each constitutional provision invoked is tied to an identified act: Article 47 and sections 4 and 5 of the Fair Administrative Action Act to the threat of illegality and repossession, the absence of prior disclosure, reasons and review, and the sequencing of disputes after renewal; Article 35 and the Access to Information Act to identified handover instruments, registers, ledgers, fee authority and decision criteria; Articles 28 and 43 to the security and dignity of the home; Article 40 to existing tenancy interests and household goods rather than to any unpleaded claim of ownership; and Article 48 to the clauses purporting to authorise enforcement without court or tribunal process. He adds that the Respondents' ability to answer each of those matters comprehensively is itself practical confirmation that they understood the case they were called upon to meet.
34. On exhaustion of remedies, counsel accepts the orthodox rule in Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR , but submits that the antecedent question is whether an applicable mechanism exists for the actual dispute before the Court. Section 76 of the Physical and Land Use Planning Act, 2019 merely establishes the County Liaison Committee, whose functions are prescribed by section 78 and concern complaints and claims relating to applications submitted to a planning authority, appeals from decisions on physical and land use development plans, advice on planning policy, and appeals concerning enforcement notices issued under section 72. No planning application, development plan decision, subdivision decision or enforcement notice is challenged in these proceedings. The impugned instruments are a tenancy renewal notice and a tenancy agreement, and calling the process urban renewal or referring to illegal extensions cannot convert a tenancy instrument into a planning appeal.
35. As to the reference to rent tribunals, counsel submits that it is indeterminate: the Respondents identify no tribunal, no appealable decision, no statutory procedure invoked by the Notice, and no provision empowering a tribunal to suspend a county-wide notice, to interrogate the constitutionality of a standard county instrument, to protect signed and unsigned residents as a class, to compel transition records or to grant relief under Article 23. He submits further that the applicability of the Rent Restriction Act, Cap. 296 is house-specific, depending under sections 2 and 3 upon the standard rent, upon whether the dwelling house is an excepted dwelling house and upon whether the tenancy is a service tenancy, and that no standard rent determination, Gazette exception or house by house classification has been supplied. If the Act applies, section 14 reinforces the Petitioners' case that possession is obtained through the Tribunal upon lawful grounds and reasonableness; if it does not apply, the unnamed tribunal cannot be the mandatory forum. He relies on William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR for the proposition that the court must examine the suitability of the alternative mechanism, the quality of audience it affords and whether it can determine the issues and grant effective relief; and he invokes, in the alternative, section 9(4) of the Fair Administrative Action Act, inviting the Court, if necessary, to deem the Motion an application for exemption in the interests of justice.
36. On conservatory relief, counsel relies on Article 23(3) of the Constitution, Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR . He submits that the evidential threshold is comfortably exceeded: the central documents are before the Court; the Notice and the template are not denied; the transition from the National Housing Corporation and the record-cleansing character of the exercise are admitted; the tenants' concerns are recorded in the County's own minutes; and the self-help clauses remain unanswered. He relies on Judicial Service Commission v Mbalu Mutava & another [2015] eKLR for the proposition that Article 47 has transformed administrative law from a narrow inquiry into power into a constitutional inquiry into lawful, reasonable and fair process, and on Kenya Revenue Authority v Export Trading Company Ltd [2022] KESC 31 (KLR) for the proposition that the possession of statutory power does not answer the distinct question whether the process employed is fair.
37. Counsel submits that the County's reliance upon the later consultative meetings does not cure the difficulty, because consultation is not a ceremony held after the operative threat and the signing process have commenced; it must be informed, timely and capable of affecting the decision. He cites, as persuasive authority, Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg [2008] ZACC 1 , in which meaningful engagement was described as a two-way process requiring openness and genuine attention to the consequences of displacement, and Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7, in which the need for individualised, dignified and equitable treatment of long-standing and vulnerable households was emphasised; and he submits that those principles accord with Articles 10, 28, 43, 47 and 174 of our Constitution.
38. On the template, counsel submits that Article 2(4) renders conduct inconsistent with the Constitution invalid and that Article 24 requires any limitation of rights to be by law and to be demonstrably reasonable and justifiable; that a standard-form contract drafted by a public authority is not a legislative warrant to exclude court process, break locks, enter by force, seize goods or sell household property; that even an unlawful occupier of public land may be evicted only in accordance with sections 152A and 152B of the Land Act, 2012, so that a fortiori residents whose occupation arose under Municipal Council or National Housing Corporation arrangements cannot be converted into illegal occupants and removed by administrative self-help; and that the Distress for Rent Act, Cap. 293 regulates distress, licensed auctioneers, notice, valuation, time and sale, so that a clause permitting the County to impound goods for rent default or for any other reason, to disclaim liability and to auction after a process of its own devising is at the least seriously contestable.
39. On disclosure, counsel submits that section 4(3)(g) of the Fair Administrative Action Act requires disclosure of the information and evidence relied upon before adverse action is taken, and that Article 35 and sections 4 and 5 of the Access to Information Act proceed from a duty to disclose. The Petitioners do not seek the indiscriminate publication of private tenant data; redacted extracts, house-specific ledgers, inspection by counsel or filing under seal would meet the case. As to the renewal fee, they seek not exemption from a charge proved to be lawful but disclosure of its legal basis before it is made a condition of renewal.
40. On the challenge to the 3rd Petitioner, counsel submits that her clarification reinforces rather than defeats the case; that the absence of her name from an inherited register is not proof that she is a stranger but is precisely the reason a fair deceased-tenant and family-occupation procedure is required; that the alleged arrears are unsupported by any itemised ledger and cannot determine biological relationship, erase forty-seven years of family occupation or justify an interlocutory finding of perjury; and that in any event Articles 22 and 258 permit proceedings by affected persons, on behalf of a class and in the public interest, so that the Motion does not stand or fall with the 3rd Petitioner's individual status.
41. On prejudice, counsel submits that the danger is not confined to physical eviction. Without broader preservation, signatures may continue to be procured under the outstanding threat; unsigned residents may be marked non-compliant; records may be altered or relied upon without challenge; houses may be administratively repossessed or reallocated; and household goods may be exposed to self-help remedies, so that by the time the Petition is heard the legal and factual position may have been transformed. He submits that the existing direction of 28th July 2026 is important but temporary, enduring only until the determination of the Motion, and that unless it is continued and made effective against the cognate forms of dispossession the Petition may become an inquiry into a fait accompli. He further submits that a signature already procured cannot be treated as a waiver of constitutional review, relying on Article 2 and on the persuasive reasoning in Olga Tellis & others v Bombay Municipal Corporation & others (1985) 3 SCC 545 that there can be no estoppel against the enforcement of fundamental rights.
42. On the balance of convenience and the public interest, counsel accepts that the public interest does not lie on one side only. There is, he concedes, a genuine public interest in accurate records, lawful rent collection, the protection of public housing, the prevention of subletting and compliance with sa
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