Omollo & 2 others v County Government of Kisumu & 6 others (Environment and Land Petition E004 of 2026) [2026] KEELC 5361 (KLR) (31 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC PETITION NO. E004 OF 2026** **IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 27, 28, 35, 40, 43, 47, 48, 50, 159, 162(2)(b), 174, 175, 176, 196, 201, 232, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE COUNTY GOVERNMENT OF KISUMU ESTATES AND INSTITUTIONAL HOUSES TENANCY RENEWAL, VERIFICATION AND REGULARISATION EXERCISE** **AND** **IN THE MATTER OF THE NOTICE DATED 18TH JUNE 2026 AND THE CURRENT COUNTY GOVERNMENT OF KISUMU TENANCY AGREEMENT TEMPLATE** **BETWEEN** **JACOB OTIENO OMOLLO** **1ST PETITIONER/APPLICANT** **GEORGE W.O. OKARA** **2ND PETITIONER/APPLICANT** **JOSEPHINE ADHIAMBO OTIANG'A** **3RD PETITIONER/APPLICANT** **-VERSUS-** **COUNTY GOVERNMENT OF KISUMU** **1ST RESPONDENT** **COUNTY SECRETARY, COUNTY GOVERNMENT OF KISUMU** **2ND RESPONDENT** **COUNTY EXECUTIVE COMMITTEE MEMBER FOR LANDS, PHYSICAL PLANNING, HOUSING AND URBAN DEVELOPMENT** **3RD RESPONDENT** **DIRECTOR OF HOUSING AND URBAN DEVELOPMENT** **4TH RESPONDENT** **COUNTY ATTORNEY, COUNTY GOVERNMENT OF KISUMU** **5TH RESPONDENT** **CHIEF EXECUTIVE OFFICER, KISUMU COUNTY REVENUE BOARD** **6TH RESPONDENT** **AND** **THE KISUMU CITY BOARD** **INTERESTED PARTY** **RULING** 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 safety and planning law; but there is an equal and constitutionally prior public interest in legality, dignity, fair administration, access to justice and the protection of homes from unilateral force. Relying on **Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] KESC 34 (KLR),** he submits that the least restrictive and most workable order is not a blanket freeze of County administration but a regime of preservation. 43. Finally, and in the event that the Court should consider any prayer wider than is necessary at this stage, counsel invites the Court to grant calibrated orders: the continuation of the existing protection against eviction; restraint of lockout, repossession, reallocation, forced entry, impounding, auction, termination and adverse classification founded solely upon the impugned Notice, the failure or refusal to sign, a signature already procured, missing historical documents or a disputed and unreconciled rent account; suspension of the offending clauses of the Notice and of the template; provision that a signature already placed shall not of itself constitute waiver and that a resident who has not signed shall not for that reason alone be treated as illegal; preservation of all relevant records; the filing of the handover instrument, the statutory basis of the fee, the written criteria, the objection mechanism and itemised ledgers for the three Petitioners, with redaction or filing under seal where necessary; the reception of Municipal Council and National Housing Corporation era documents as prima facie material for verification; and, if verification continues, a written provisional decision, reasons and a meaningful opportunity for objection or review before any adverse classification takes effect. Costs of the application are sought in the cause. 44. Neither the 1st to 6th Respondents nor the Interested Party filed any written submissions, notwithstanding that each of them was granted time within which to do so. The time allowed has long since expired. No application for extension of time was made, no submissions were tendered out of time, and no explanation for the omission has been offered to the Court. The Interested Party, the Kisumu City Board, has in truth filed nothing at all in these proceedings and has taken no position upon any of the matters in issue. 45. A failure to file submissions is not a concession, and it does not relieve the Petitioners of the burden of satisfying the Court that they are entitled to the orders they seek. Submissions are not evidence. They are the advocate's argument upon the material properly before the Court, and the Court retains the duty to consider that material and to determine the application on its merits whether or not it is assisted by argument from every party. 46. I have therefore considered the Respondents' case as it appears from the Notice of Preliminary Objection dated 24th July 2026 and the grounds set out upon its face, and from the Replying Affidavit of Bernard Ojwang sworn on 24th July 2026 together with its annexures; and, in accordance with the direction given on 28th July 2026, I have treated the grounds of the Preliminary Objection as the Respondents' answer to the Motion. I record, however, that the consequence of the omission is that a number of the propositions advanced by the Petitioners, and in particular those directed to the specific clauses of the tenancy agreement template and to the statutory basis of the renewal fee, stand unanswered by argument as well as unanswered on the affidavits. 47. A party who elects not to file submissions within the time allowed cannot be permitted thereby to delay the determination of a matter, still less a matter in which conservatory relief is sought and in which the security of a large number of households is said to be in immediate jeopardy. Article 159(2)(b) of the Constitution requires that justice shall not be delayed. I have accordingly proceeded to determine both the Preliminary Objection and the application. **Analysis and Determination** 48. I have carefully considered the Petition and its supporting affidavit, the Notice of Motion dated 17th July 2026, the Replying Affidavit of Bernard Ojwang sworn on 24th July 2026 together with its annexures, the Notice of Preliminary Objection dated 24th July 2026, the two Further Affidavits sworn on 27th July 2026, the Petitioners' written submissions dated 4th August 2026 and the authorities cited therein. The Respondents and the Interested Party filed no submissions. 49. In my view the following issues arise for determination: 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; and** 4. **Who should bear the costs.** **(i) Whether the Preliminary Objection is merited** 50. A preliminary objection, being a matter capable of disposing of a suit in limine, must be taken first. I therefore begin with it. 51. The nature of a preliminary objection is long settled. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696,** Law JA stated that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit; and that it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Sir Charles Newbold P. added, in the same case, that a preliminary objection raises a pure point of law argued on the assumption that all the facts pleaded by the other side are correct, and that it cannot be raised if any fact has to be ascertained. These principles were reaffirmed by the Court of Appeal in **Oraro v Mbaja [2005] eKLR and in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR.** 52. I take the four grounds of objection in turn. 53. The first ground is that the Petition discloses no cause of action against the Respondents. With respect, that ground is untenable. Whether a pleading discloses a cause of action is assessed on the face of the pleading, taking its averments as correct. The Petition identifies the impugned Notice dated 18th June 2026 and the impugned tenancy template; identifies the affected estates and the Petitioners' respective houses; identifies the constitutional provisions relied upon; sets out at paragraphs 32 to 45 the particulars of the alleged violations under Articles 10, 27, 28, 35, 40, 43, 47 and 48 and under the Fair Administrative Action Act, the Access to Information Act, the Land Act and the county participation statutes; pleads the conduct complained of and the threatened prejudice; and sets out the reliefs sought. Whether the Petitioners will succeed on those pleadings is an entirely different question from whether a cause of action is disclosed. The Respondents' own detailed factual answer to each of those complaints is itself an indication that the Petition is intelligible and answerable. 54. The third ground, which is related, is that the Petition offends the principles laid down in **Anarita Karimi Njeru v Republic (No. 1)** **[1979] KLR 154 and reaffirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.** Those authorities require a petitioner to set out with a reasonable degree of precision the provisions said to have been infringed and the manner in which they are alleged to have been infringed. The rationale, as the Court of Appeal explained in Mumo Matemu, is to ensure that the opposing party knows the case to be met and that the court is not left to speculate. The rule is one of fair notice; it is not a rule of technical perfection, and it must be applied consistently with Article 159(2)(d) of the Constitution. 55. Applying that standard, I am satisfied that the Petition meets the threshold. It does not merely recite a catalogue of constitutional articles. It identifies a specific administrative instrument, a specific date, a specific deadline, a specific template, specific clauses said to be objectionable, specific categories of records said to have been withheld, and specific consequences said to be threatened. The Respondents have been able to meet each of those allegations in a six-page replying affidavit. The third ground accordingly fails. 56. The second ground is the substantial one. It is that the matters raised fall within the jurisdiction of separate and distinct statutory bodies, namely the County Physical Planning and Land Use Liaison Committee established under section 76 of the Physical and Land Use Planning Act, and rent tribunals, and that the Court should discourage recourse to the constitutional process where an alternative statutory remedy exists. 57. The doctrine of exhaustion of remedies is well established. Section 9(2) of the Fair Administrative Action Act, 2015 provides that the High Court or a subordinate court shall not review an administrative action or decision under that Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Section 9(4), however, empowers the court to exempt a person from the obligation to exhaust in exceptional circumstances and on application by that person. In Speaker of the **National Assembly v Njenga Karume [1992] KLR 22** the Court of Appeal held that where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. In **Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR** the Court of Appeal reiterated that courts ought to exercise restraint where an alternative dispute resolution mechanism exists. In **Republic v Independent Electoral and Boundaries Commission ex parte National Super Alliance (NASA) Kenya [2017] eKLR** the High Court identified the principal exceptions, namely where the alternative remedy is not adequate, effective or available in the circumstances, and where the issues raised are of such a nature that the constitutional court is better placed to determine them. 58. The doctrine, however, presupposes that the alternative forum has jurisdiction to grant the relief sought. An objection founded on exhaustion cannot succeed by simply naming a body; the body named must be shown to be competent to determine the grievance and to grant an effective remedy. 59. The County Physical and Land Use Planning Liaison Committee is established by Part IX of the Physical and Land Use Planning Act. Its functions are directed to planning matters: the hearing and determination of appeals against decisions of a planning authority in respect of development applications, the hearing of appeals in respect of enforcement notices, and the advising of the county on planning matters generally. It is a planning appellate body. It is not vested with jurisdiction to determine whether a county public housing tenancy renewal exercise is procedurally fair, whether an administrative notice threatening to deem occupants illegal offends Article 47, whether the withholding of registers and ledgers offends Article 35, whether clauses in a standard-form tenancy instrument purporting to authorise self-help eviction offend Articles 40, 43 and 48, or to grant conservatory orders, declarations of invalidity, orders of certiorari, prohibition and mandamus, or structural relief of the kind sought in prayers 11 to 21 of the Petition. 60. It is significant that the Petition does not challenge a development permission, a zoning decision, a subdivision approval or a physical planning enforcement notice. Nothing pleaded engages the appellate jurisdiction of the Liaison Committee. The invocation of that Committee in the Preliminary Objection is, with respect, an answer to a case that has not been brought. 61. As for the reference to rent tribunals, the objection is equally problematic. It is not stated which tribunal is meant, nor whether the affected houses are said to be controlled tenancies within the meaning of the Rent Restriction Act, Cap. 296, or protected tenancies under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, which plainly has no application to residential estates. More fundamentally, whether any of the affected houses falls within the Rent Restriction Act at all is one of the very matters the Petitioners say has never been disclosed to them, and which they ask the Court to compel the Respondents to disclose. A respondent cannot withhold the information necessary to identify the correct forum and then object that the wrong forum has been approached. In any event, a rent tribunal, being a creature of statute, has no jurisdiction to grant the constitutional declarations, prerogative orders or class-wide structural relief sought here. 62. Nor has any material been placed before the Court by which the correct forum could be identified. Whether the Rent Restriction Act applies to a given dwelling house depends, under sections 2 and 3 of that Act, upon matters such as the standard rent, whether the dwelling house is an excepted dwelling house and whether the tenancy is a service tenancy. No standard rent determination, no Gazette exception and no house by house classification has been exhibited. The point is in truth double-edged for the Respondents. If the Act applies, section 14 confirms that possession is to be obtained through the Tribunal upon proof of lawful grounds and of reasonableness, and not by the operation of a clause in a county instrument authorising unilateral repossession. If the Act does not apply, the unnamed tribunal cannot be the mandatory forum. Either way, the objection is not advanced. 63. In **William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR** it was held that a court faced with an exhaustion objection must examine the suitability of the alternative mechanism, the quality of audience it affords the aggrieved party, and whether it is capable of determining the issues raised and of granting effective relief. Applying that approach, no forum identified by the Respondents can resolve this controversy in its entirety. I would add that neither the impugned Notice nor the template disclosed to the residents any internal appeal, liaison committee, rent tribunal, time limit, form of objection or stay mechanism. A public authority which threatens immediate adverse consequences through one process cannot readily defeat judicial protection by pointing afterwards to an undisclosed and inapplicable forum. Were it necessary to go further, I would in any event have been prepared to treat the Motion as an application for exemption under section 9(4) of the Fair Administrative Action Act, the urgency of the matter, the multiplicity of affected residents, the express threat to homes and the challenge to the legality of the governing instruments together amounting to exceptional circumstances. 64. There is a further consideration. The grievance pleaded is not an individual landlord and tenant dispute over a single house. It is a challenge to a county-wide administrative process, an administrative notice and a standard-form instrument, brought under Articles 22 and 258 in the Petitioners' own interest, on behalf of a class of affected tenants and in the public interest. There is no statutory tribunal to which a class-wide challenge of that character could sensibly be taken. 65. I should say a word about this Court's jurisdiction, since jurisdiction is everything and the Court must satisfy itself of it even where the point is not properly taken. The dispute concerns the use, occupation and possession of houses standing on land within Kisumu City, threatened repossession and eviction, and enforceable interests in that occupation. Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act confer on this Court jurisdiction over disputes relating to the use and occupation of, and title to, land, and to land administration and management. Section 13(7) expressly empowers the Court to grant orders of certiorari, prohibition and mandamus, injunctions, declarations, compensation and such other reliefs as it deems fit. The Supreme Court in **Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR)** confirmed that housing and eviction disputes involving public authorities are properly justiciable and that appropriate relief may include structural remedies. I am satisfied that this Court is seized of jurisdiction. 66. Beyond all of this, the objection suffers from the difficulty identified in Mukisa Biscuit. To determine whether the Liaison Committee or a rent tribunal offers an adequate and effective alternative remedy, the Court would have to ascertain a series of contested facts: the true character and scope of the impugned exercise; whether the affected houses are controlled tenancies; what internal mechanism, if any, was disclosed to tenants; whether the complaints book constitutes an internal review mechanism with identified decision-makers, criteria and timelines; and what the tenancy template in fact provides. Those are not agreed facts. They are hotly contested on the affidavits. An objection which requires the ascertainment of such facts is not a preliminary objection properly so called. 67. The fourth ground, that the suit is fatally defective ab initio, adds nothing independent; it is a conclusion drawn from the first three grounds, and it falls with them. 68. For those reasons the Notice of Preliminary Objection dated 24th July 2026 is without merit and is dismissed. I emphasise, however, that nothing in this ruling forecloses the Respondents from urging at the hearing of the Petition, on the evidence then before the Court, that particular reliefs sought are inappropriate or that particular grievances of individual tenants are more properly directed elsewhere. **(ii) Whether conservatory orders should issue** 69. Conservatory orders are creatures of Article 23(3)(c) of the Constitution and of Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. They are not to be equated with ordinary civil injunctions. 70. In **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR** the Supreme Court observed that conservatory orders bear a more decidedly public law character, that they are not merely private party issues, and that the court in exercising its discretion must weigh the special character of the constitutional or statutory rights in issue and the public interest. The Court identified the guiding considerations as whether the applicant has established a prima facie case with a likelihood of success, whether the grant or denial of the order will enhance the constitutional values and objects of the relevant right, and where the public interest lies. 71. The three-limbed test as commonly applied requires the applicant to demonstrate a prima facie case with a likelihood of success; that unless the order is granted there is a real danger of prejudice which cannot be compensated by damages or which would render the petition nugatory; and that the public interest favours the grant. See **Board of Management of Uhuru Secondary School v City County Director of Education & 4 others [2015] eKLR and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR.** 72. At this stage the Court does not determine the merits of the Petition, nor does it resolve contested questions of fact. It asks only whether the Petitioners have raised issues that are substantial and arguable and which, if resolved in their favour, would entitle them to relief; and whether the position ought to be preserved so that the Petition, if successful, is not rendered an empty exercise. 73. Applying that standard, I am satisfied that a prima facie case has been established, for the following reasons. 74. First, the central factual foundation of the Petition is not in dispute. The Respondents admit the issuance of the Notice dated 18th June 2026. They admit that the three estates were managed by the National Housing Corporation until March 2026 and that the exercise is intended to cleanse the records received on handover. Critically, they admit that the exercise concerns occupants whose original tenants are deceased, retired, no longer County employees or unregistered altogether, and that one of its objectives is to facilitate the transfer of tenancies to rightful beneficiaries. That admission removes the exercise from the realm of routine annual clerical renewal on which the Respondents otherwise rely. An exercise which determines who, among the surviving members of a deceased tenant's household, is a rightful beneficiary of a family home occupied for decades is an exercise with serious consequences for the persons affected. The more serious the consequence, the more exacting are the requirements of Article 47 and of sections 4 and 6 of the Fair Administrative Action Act as to prior notice, disclosure of material information, an opportunity to be heard, written reasons and notice of any right of review or appeal. 75. Secondly, the operative terms of the impugned Notice are not disputed. It is not denied that the Notice states that tenants who fail to renew by 14th August 2026 shall be deemed illegal tenants and their houses repossessed and reallocated. It is arguable, and in my view seriously arguable, that an administrative instrument which converts a long-standing occupant into an illegal occupant by the mere effluxion of a date, and which threatens repossession and reallocation as an automatic consequence, without any disclosed criteria, individual determination, written reasons or right of objection, does not meet the standard of fair administrative action. It is also arguable that repossession so effected would engage the eviction safeguards in sections 152A to 152I of the Land Act, 2012, and the jurisprudence on evictions in **Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others [2013] eKLR and Mitu-Bell (supra).** 76. The Respondents' answer is that they have no intention of unlawfully evicting any tenant who possesses right ownership documents, and that the fears expressed are unfounded. Two observations arise. The first is that an assurance of good intention in an affidavit does not withdraw, vary or suspend a written notice which remains in force and whose deadline is imminent. The second is that the qualification, that the assurance extends to tenants who possess right ownership documents, is precisely the difficulty in this case. These are public social rental houses. The occupants hold tenancy records, rent cards, receipts, allocation letters, payslip deductions, Municipal Council and NHC-era documents, and in some cases only a family history of occupation. They do not hold ownership documents. An assurance framed by reference to ownership documents affords no comfort to the very category of occupants whom the exercise, on the Respondents' own showing, is designed to address. 77. Two authorities relied upon by the Petitioners are in point. In **Judicial Service Commission v Mbalu Mutava & another [2015] eKLR** the Court of Appeal explained that Article 47 has transformed the review of administrative action from a common law inquiry into the ambit of power into a constitutional inquiry governed by the principle of constitutionality. In **Kenya Revenue Authority v Export Trading Company Ltd [2022] KESC 31 (KLR)** the Supreme Court emphasised that the possession of statutory power does not answer the distinct question whether the process by which that power has been exercised is fair. The Respondents' answer to this application is, in substance, an answer about power and about purpose. It does not engage with process. A lawful objective does not immunise unlawful means. 78. Thirdly, the challenge to the tenancy template has not been specifically answered. The Petitioners plead, with particularity, that the current template provides for automatic lapse of tenancy, for termination and the taking of possession without recourse to a court or tribunal, for the removal of locks and forcible entry, for the impounding and auction of household goods with a disclaimer of liability, and for water disconnection. The Replying Affidavit does not annex the template and does not traverse those specific averments. Whether a public authority may lawfully require its tenants to contract out of due process, and whether such clauses are consistent with Articles 28, 40, 43, 47 and 48 and with section 152E of the Land Act, is a substantial constitutional question fit for determination on a full record. I say no more about it at this stage. 79. I would add that the impounding and sale of a tenant's goods is not an unregulated field. The Distress for Rent Act, Cap. 293 prescribes by whom distress may be levied, the licensing of auctioneers, the giving of notice, valuation, the time of sale and the manner of sale. A contractual clause permitting a county to impound goods for rent default or for any other reason, to disclaim liability for their loss or damage, and to sell them after a process of its own devising, is on the face of it in tension with that statutory scheme. Whether it survives scrutiny is a matter for the hearing. That it is seriously contestable is enough for present purposes. 80. Fourthly, the material placed before the Court by the Respondents themselves lends support to the Petitioners' complaint rather than dispelling it. The minutes annexed as BO-4 record that tenants lacked some of the documents requested, that original tenants had died, that households were occupied by widows, widowers and orphans, that tenants asked that NHC records be relied upon, that they sought a dispute resolution mechanism before renewal, and that they wished to know the contents of the agreement before signing. The recorded response, that disputes, transfers and changes of name would be addressed after the renewal exercise, is itself the gravamen of the Petitioners' case: that tenants are required to sign, or be classified, before the very questions which determine their eligibility have been resolved. 81. The comparative jurisprudence relied upon by the Petitioners, while of persuasive force only, is apposite. In **Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg [2008] ZACC 1** the Constitutional Court of South Africa described meaningful engagement as a two-way process requiring openness and genuine attention to the consequences of displacement; and in **Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7** that Court stressed the need for individualised, dignified and equitable treatment, particularly of long-standing and vulnerable households. Those principles sit comfortably with Articles 10, 28, 43, 47 and 174 of our Constitution and with the public participation obligations of a county government. Consultation which is conducted after the operative threat has issued and after signatures have begun to be collected, and which defers the very questions that determine eligibility, is at least arguably not engagement of that character. 82. Fifthly, a complaints or issues book, however well intentioned, is not on the material before me shown to be an administrative review mechanism. There is no evidence of published rules, timelines, an identified decision-maker, criteria for decision, written reasons, a right of review or any suspension of adverse consequences pending the resolution of a complaint. Whether it suffices is a matter for the hearing; that it is arguably insufficient is enough for present purposes. 83. Sixthly, as to the renewal fee of KShs. 1,000, the Petitioners do not claim immunity from a lawfully imposed fee. They seek disclosure of its legal basis. The Respondents assert that it is provided for by the Kisumu County Finance Act 2026 but have not exhibited the relevant provision or schedule. Article 210(1) of the Constitution requires that no tax or licensing fee may be imposed, waived or varied except as provided by legislation. The point is arguable and readily susceptible of proof; it is not a basis for injunctive interference at this stage, but it is a matter on which disclosure should be made. 84. I turn to the risk of prejudice. The Notice fixed 14th August 2026 as the date upon which non-renewing tenants were to be deemed illegal and their houses repossessed and reallocated. That date has now passed. It is the interim direction issued on 28th July 2026 which has held the ring, and that direction by its terms endures only until the determination of this application. Unless it is continued, and unless it is made effective against the cognate acts by which it might be defeated in substance, the position may alter immediately upon the delivery of this ruling. If the Petitioners are correct that the process is constitutionally infirm, and if in the meantime occupants are classified as illegal, evicted, or have their houses reallocated to third parties, the Petition will have been rendered nugatory before it is heard. Homes lost cannot readily be restored; once a house is reallocated to another person, third party interests intervene and the Court's eventual judgment is reduced to a paper victory. The prejudice is real, imminent and, in a meaningful sense, irreversible. Damages would be a wholly inadequate remedy for the loss of a family home occupied for decades. 85. Conversely, and this is decisive on the balance, the Respondents will suffer no comparable prejudice. They say they intend no unlawful eviction. An order restraining unlawful eviction takes nothing from a party who disavows any intention to evict unlawfully. They say they accept Municipal Council and NHC-era records. An order preserving that position costs them nothing. They say tenants are not coerced. An order that no tenant shall be prejudiced by declining to sign pending the determination of the Petition merely holds them to their word. The renewal exercise itself may continue for those who wish to renew; rent remains payable and recoverable; records may continue to be verified and reconciled; the estates may continue to be maintained; and planning, safety and security concerns may continue to be addressed through lawful process. The orders sought, properly calibrated, do not stop the administration of the estates. They stop only the coercive edge of the exercise. 86. As to the public interest, it cuts both ways and must be weighed. There is a strong public interest in county governments managing public housing assets properly, maintaining accurate registers, collecting rent due to the public purse and preventing unlawful occupation, subletting and uncontrolled development. This Court does not lightly interfere with the administrative functions of a county government, and nothing in this ruling should be read as an obstacle to lawful estate management. But there is an equally strong, and here more pressing, public interest in ensuring that a transition affecting hundreds of households in three long-established public housing estates is conducted lawfully, transparently and with due regard to the dignity and security of the families concerned. Where the two are weighed, the balance tilts in favour of preserving the position, because the harm of a temporary pause in the coercive elements of an administrative timetable is slight and reversible, while the harm of dispossession pending determination is grave and irreversible. 87. I would add this. The Petitioners invoked, at paragraph 46 of the Petition, the observation of Lord Denning MR in Southam v Smout [1964] 1 QB 308, echoing the Earl of Chatham, that the poorest man may in his cottage bid defiance to all the forces of the Crown, and that the King of England may not enter it save by authority of law. In our constitutional order the principle needs no borrowed authority. Articles 28, 40, 43, 47 and 48 of the Constitution say the same thing more directly and with greater force. A county tenant's house may be modest. But public power may cross its threshold only in the manner the law permits, and 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. 88. I am accordingly satisfied that the Petitioners have met the threshold for conservatory orders. The remaining question is the scope of those orders. **(iii) The status of the 3rd Petitioner** 89. The Respondents make a pointed allegation that the 3rd Petitioner lied on oath. That is a serious charge and I approach it with care. 90. The 3rd Petitioner described herself in the Petition and in the supporting affidavit as an affected tenant of House No. R6/38, Argwings Kodhek Estate. The Respondents say her name does not appear in the NHC records as a tenant, that her relationship to the person named in those records is unclear, and that the house carries arrears of KShs. 7,700. In her Further Affidavit she explains that the registered tenant was her late father, James Douglas Otiang'a; that she is his biological daughter; that the family has occupied the house since 1979; that she has never claimed that the register had been amended to substitute her name; and that she described herself as she did because she is in actual family occupation and her security of residence is affected. 91. Three things may be said at this interlocutory stage, and no more. 92. First, the material annexed to her Further Affidavit as JAO-1 is not consistent with an attempt to deceive. It includes what purports to be the National Housing Corporation lease agreement for the house in the name of James Douglas Otiang'a, the death certificates of that gentleman and of Zilpa Auma Otiang'a, her national identity card bearing the surname Otianga, and a letter to the County Director of Housing seeking a change of tenancy from her late father to herself as daughter, which letter bears what appears to be a County receipt stamp. Whether those documents establish what they are said to establish is a matter for the hearing. But a deponent who annexes the very lease showing the tenancy in another person's name, and who volunteers that she is the daughter of that person, is not on the face of it concealing the registration. 93. Secondly, the description of herself as an affected tenant was imprecise. The precise position, as she now explains it, is that she is a member of the household of the deceased registered tenant and is in actual occupation. Imprecision in a pleading is not the same thing as perjury, and I decline to make any finding on the allegation at this stage. It is a matter which, if pursued, must be established on evidence at the hearing. 94. Thirdly, and importantly, the dispute about the 3rd Petitioner's status does not assist the Respondents; it illustrates the Petitioners' case. On the Respondents' own averments, the exercise is directed at precisely this category of occupant: households where the registered tenant is deceased and the register has not been updated. The very existence of a genuine dispute as to how such a household is to be treated, and the absence of any disclosed procedure by which the family of a deceased registered tenant may apply for recognition or substitution, is the reason a fair verification and objection framework is needed before adverse consequences attach. 95. I should add that even if the 3rd Petitioner's individual standing were successfully impugned, the application would not fall with it. The standing of the 1st and 2nd Petitioners is not challenged. The Petition is expressly brought under Articles 22 and 258 of the Constitution in the Petitioners' own interest, on behalf of a class of affected tenants and in the public interest, and Article 22(2) casts the net of standing widely for good reason. 96. As to the alleged arrears, the 3rd Petitioner does not claim immunity from lawful rent, and rightly so. Rent lawfully due remains payable. Nothing in the orders below relieves any tenant of the obligation to pay rent or precludes the Respondents from reconciling accounts and recovering arrears lawfully established, by lawful means. What the orders do preclude is the use of a disputed and unreconciled arrears figure as the trigger for summary repossession outside due process. **(iv) The scope of the orders** 97. Conservatory orders are, by their nature, orders of preservation. They hold the ring. They must be framed with sufficient precision to be capable of obedience, and they must not, at the interlocutory stage, grant the Petitioners the very relief which the Petition seeks in final form. 98. One aspect of the orders calls for a word of explanation. It may be said on behalf of the Respondents that tenants who have already executed the template have consented to its terms. Consent, however, cannot cure unconstitutionality. By Article 2 the Constitution binds all persons and all State organs, and any act or omission in contravention of it is invalid. The Supreme Court of India expressed the point in **Olga Tellis & others v Bombay Municipal Corporation & others (1985) 3 SCC 545** when it held that there can be no estoppel against the enforcement of a fundamental right. The Court is not called upon at this stage to pronounce upon the validity of any particular signature. It is enough to preserve, pending the hearing, the right of those who have signed to challenge the process and the impugned clauses. 99. Bearing that in mind, I do not grant the application in the terms sought in every respect. In particular: (a) I decline to suspend the renewal, verification and regularisation exercise in its entirety. The Respondents are entitled, indeed obliged, to maintain accurate records of public housing assets, and tenants who wish to renew should not be prevented from doing so. What is suspended is the coercive consequence attached to non-renewal, not the opportunity to renew. (b) I decline to grant, at this stage and in the mandatory terms sought in prayers 15 and 16 of the application, the wholesale disclosure orders which form part of the substantive relief claimed in the Petition. To grant them now would be to determine the Article 35 and Access to Information claims before hearing. I will instead give directions for the filing of the documents necessary to enable the Court to determine the Petition on a complete record, which is a different thing and is within the Court's ordinary case management powers. (c) The order restraining rejection of Municipal Council and NHC-era records is granted in a form which reflects the Respondents' own averment at paragraph 22 of the Replying Affidavit, namely that such records are accepted. It requires nothing of them that they do not say they already do. 100. I have considered the calibrated orders proposed in the Petitioners' submissions. In substance they are orders of preservation, and to that extent I am satisfied that they are proportionate and capable of obedience. I have not thought it necessary to grant every one of them. In particular, I decline at this stage to order the filing of itemised rent ledgers for the three Petitioners as an order of disclosure, that relief forming part of the substantive claim under Article 35 and the Access to Information Act; I have instead directed the filing of those documents which the Court itself requires in order to determine the Petition upon a complete record. I have, however, thought it right to provide that where verification continues pending the hearing, no adverse classification shall take effect against a resident without a written provisional decision, the material upon which it is based, a reasonable opportunity to respond and written reasons upon determination. That is no more than sections 4 and 6 of the Fair Administrative Action Act already require of a lawful administrator, and it therefore costs the Respondents nothing. 101. In framing the orders I have also had regard to the fact that the deadline of 14th August 2026 fixed by the impugned Notice has now passed, its consequences having been held in abeyance by the interim direction of 28th July 2026, and that certainty is now needed both by the residents of the affected estates and by the County officers charged with implementing the exercise. **(v) Costs** 102. Costs ordinarily follow the event under section 27 of the Civil Procedure Act. However, this is a constitutional petition brought in part in the public interest, and the application is interlocutory. In accordance with the settled practice that costs in public interest constitutional litigation should not be awarded so as to deter access to justice, and given that the substantive dispute remains to be heard, the appropriate order is that each party bears own costs of both the Preliminary Objection and the application. **Disposition** 103. In the result, and for the reasons set out above, I make the following orders: 1. **The Notice of Preliminary Objection dated 24th July 2026 is hereby dismissed.** 2. **The interim direction issued by this Court on 28th July 2026, that no person currently residing in Arina Estate, Moscow (Mosque) Estate or Argwings Kodhek Estate be evicted, be and is hereby confirmed and extended pending the hearing and determination of the Petition.** 3. **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 which provide that tenants who fail to renew by 14th August 2026 shall be deemed illegal tenants and that their houses shall be repossessed and reallocated.** 4. **Pending the hearing and determination of the Petition, a conservatory order be and is hereby issued that a tenant who has executed the current County Government of Kisumu tenancy agreement template shall not, by reason of that execution alone, be treated as having waived any constitutional right, admitted the lawfulness of any of the impugned clauses, consented to eviction or repossession otherwise than by due process, or forfeited the right to challenge the impugned process or template in these proceedings.** 5. **Pending the hearing and determination of the Petition, the Respondents shall not reject records emanating from the former Municipal Council of Kisumu or from the National Housing Corporation, including tenancy agreements, rent cards, receipts, allocation letters, bank slips, payslip deductions, correspondence, estate records and house registers, as proof of lawful occupation solely on account of the source or era of such records.** 6. **Pending the hearing and determination of the Petition, the Respondents be and are hereby restrained from destroying, altering, concealing, removing or otherwise interfering with the National Housing Corporation to County handover instruments, tenant registers, house registers, rent ledgers, arrears schedules, payment records, tenancy files and correspondence relating to the affected estates and institutional houses, all of which shall be preserved intact.** 7. **The Respondents shall, within twenty-one (21) days of the date of this ruling, file and serve the Petitioners, the County Government of Kisumu Notice dated 18th June 2026, the current County Government of Kisumu tenancy agreement template, the instruments by which management of Arina, Moscow and Argwings Kodhek Estates was handed over by the National Housing Corporation to the 1st Respondent, and the provision of the Kisumu County Finance Act, 2026 relied upon in support of the renewal fee of KShs. 1,000, the same being documents necessary to enable the Court to determine the Petition on a complete record.** 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 way of written submissions. The Petitioners shall file and serve their submissions within twenty-one (21) days of the close of pleadings, the Respondents and the Interested Party within twenty-one (21) days of service, and the Petitioners shall have seven (7) days to file any reply; and the parties are reminded that submissions not filed within the time allowed shall not be permitted to delay the hearing of the Petition.** 10. **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.** **DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF AUGUST, 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **Mr. Nyamori for the Petitioners/Applicants.** **Mr. Otieno for the 1st to 6th Respondents.** **N/A for the Interested Party.** **Court Assistant: Joanne Omondi.**