- Tenants said the high court is the correct forum to be given the nature of the dispute
- County in its objection said the suit should have instead been filed in Environment and Land Court
Image: HILTON OTENYO
Dispute between Kakamega county and tenants at Otiende and Amalemba housing schemes has taken a new twist with the two factions now fighting over high court's jurisdiction to determine the matter.
The tenants have sued the county government seeking to stop their planned eviction from government houses.
County on the other hand has filed an objection to the suit, saying the High Court lacks jurisdiction to hear and determine the matter.
The county through Brian & Company Advocates said in its objection filed in court on September 12, the suit should have instead been filed in Environment and Land Court.
But in response, the tenants through M/S Amasakha & Company Advocates said there is nothing in the dispute that falls under Article 162(2) b of the Constitution the objection is hinged on.
They said the high court is the correct forum to be given the nature of the dispute.
“We urge you to so find and dismiss the preliminary objection with costs,” they said.
They argued the high courts an unlimited jurisdiction in criminal and civil matters as set out under Article 163(3) of the constitution.
“The main contention in the petition is the decision of the respondent to convert the housing units from those to be occupied by the general public based on ability of payment of rent to those to be exclusively occupied by its employees yet the houses were constructed pursuant to Cap 117 Laws of Kenya,” they argued.
The tenants argued the mere acquisition or conferment of an interest in land does not amount to use of that land.
“Else we would neither speak of absentee land lords nor would the principles like adverse possession ever arise.”
They said the jurisdiction of the ELC to deal with disputes relating to contracts under section 13 of the ELC Act ought to be understood.
“Your honour, the issue in contention is actually the decision of the respondent to restrict the occupation of the houses to its employees regard being had to the provisions of Cap 117 and the purpose for which the houses were built against the petitioner's rights to own decent housing in Article 43 as well as the procedural aspects of the decisions,” they say.
They said the two service schemes in question were managed interchangeably by the corporation and the defunct council or local authority.
The rent collected was used to repay the money lent to the local authority by the National Housing Corporation.
The county argued in its objection to the suit that it is the Environment and Land Court that had the mandate to hear and determine matters relating to land.
“Consequently, Section 13 of the ELC Act grants the original jurisdiction to hear matters relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources has been expressly conferred to the ELC,” the submission read.
The county said that the high court does not have the exclusive or original jurisdiction to hear and determine a matter whose substratum is a lease agreement.
“Your Lordship, in light of the foregoing, it is our submission that the instant application and petition should be dismissed with costs having been instituted in the court without jurisdiction to hear and determine the matter.”