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ELCDismissedNot stated in the judgment (instituted by Plaint dated 8th June, 2015)

Ojera (The legal administrator of the Estate of Isaa Ouma Mutangili Mwanthi - Suing on their behalf and on behalf of the residents of Birikani Estate Changamwe) v Kenya Railways Corporation & another (Environment & Land Case 126 of 2015) [2025] KEELC 1495 (KLR)

Environment and Land Court of Kenya
21 March 2025
17,208 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~69 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa dismissed residents' 40-year occupation claim on Kenya Railways land, but any eviction must follow the law.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (L.L. Naikuni, J) dismissed a suit by Alphonse Ojera, suing as administrator and on behalf of 32 families of Birikani (Gang 2A), Changamwe, who claimed over 40 years' open occupation of land adjacent to Kenya Railways go-downs and challenged a 2013 notice of intended eviction by the 1st Defendant. The Plaintiffs sought declarations, an injunction against eviction, disclosure of information, and, in the alternative, procedural guarantees including one year's notice, public hearings and resettlement. The 2nd Defendant (Attorney General) did not call evidence. The 1st Defendant pleaded ownership under a Vesting Order, denied any landlord-tenant relationship, and initially raised a preliminary objection on jurisdiction under Sections 83(1) and 87(a) of the Kenya Railways Corporation Act, which it later abandoned in submissions. The court nevertheless held it had jurisdiction, since the substratum was use, occupation and title of land under Article 162(2)(b), and strict enforcement of statutory notice provisions must yield to the right of access to justice under Article 48. A court-ordered ground survey by a Senior Land Surveyor confirmed the land lies within Changamwe station and railway reserves vested in the 1st Defendant, with no record of allocation or surrender to the Plaintiffs. The Plaintiffs' witnesses gave contradictory testimony about their origins and produced no documents of title or occupation, and no administrators testified. The court found the Plaintiffs had proved neither legal nor beneficial proprietorship and dismissed prayers (a) to (e). However, invoking social justice and Article 43, it urged the Government to consider compensation/resettlement, and permitted the 1st Defendant to evict lawfully, not forcefully, strictly in compliance with Sections 152C, E & G of the Land Act. Costs were awarded to both Defendants jointly and severally against the Plaintiffs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has the jurisdiction to determine the matter
  2. 2.Whether the Plaintiff has any legitimate claim to the suit property
  3. 3.Whether the Plaintiff is entitled to the orders sought in the Plaint
  4. 4.Who bears the costs of the suit

Key legal issues

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01

Jurisdiction under the Kenya Railways Corporation Act ss 83(1) and 87(a)

Holding

The court has jurisdiction despite the statutory notice requirements, since the suit concerns land occupation and title within Article 162(2)(b); the 1st Defendant also abandoned the objection in submissions

Reasoning

The court acknowledged the reasoning in cases striking out suits for failure to give notice under s.87(a), but held that the right of access to justice under Article 48 cuts against strict enforcement of such notice provisions. Further, the dispute's substratum is use, occupation and title of land, which falls under Article 162(2)(b) and the Environment and Land Court Act, so jurisdiction exists.

p. 20
02

Whether the Plaintiffs have a legitimate claim to the suit property

Holding

No. Plaintiffs proved neither legal nor beneficial proprietorship; the land is railway operational land vested in the 1st Defendant

Reasoning

Plaintiffs produced no documents of title or occupation; their witnesses gave contradictory testimony about where and when they were born; no local administrators were summoned; and the court-ordered ground survey confirmed the land lies within Changamwe station reserve, railway reserve and the Mombasa-Nairobi main line reserve, vested in Kenya Railways by the Kenya Railways Corporation (Vesting of Land) Order 1986 with no record of surrender or allocation to the Plaintiffs.

p. 25
03

Entitlement to the constitutional/eviction-relief prayers

Holding

Prayers (a) to (e) all dismissed; the eviction had not yet occurred and the statutory procedure was not shown to have been breached

Reasoning

The court reviewed Satrose Ayuma, General Comment No. 7 and the UN Guidelines on development-based evictions, and s.152E of the Land Act, but found the evictions had not happened and sufficient notice had been given. Invoking social justice under the STAJ blueprint, it urged the Government to consider compensation/resettlement, but held the prayers devoid of merit since Plaintiffs proved no claim to the public land.

p. 29
04

Costs

Holding

Costs follow the event; successful Defendants entitled to costs jointly and severally

Reasoning

Applying s.27(1) of the Civil Procedure Act and the cited authorities, the general rule is that costs are awarded to the successful party absent compelling reasons; Plaintiffs failed to establish their case.

p. 29

Legal principles established

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  • An occupier who claims a right to land must prove how the possession came about; without documentary or credible evidence of occupation or title, the claim fails
  • Although the statutory notice under Section 87(a) of the Kenya Railways Corporation Act was not served, its strict enforcement must yield to the constitutionally guaranteed right of access to justice; and in any event a land-occupation dispute lies within the ELC's jurisdiction under Article 162(2)(b)
  • Even where occupation is unlawful, any eviction must be carried out in a humane manner and in strict compliance with the statutory eviction procedure in Section 152C, E & G of the Land Act

Court orders

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  1. 1.Judgment entered in favour of the 1st & 2nd Defendants and the claim in the Plaint dated 8th June, 2015 dismissed with costs
  2. 2.The 1st Defendant at liberty to carry out the lawful (not forceful) eviction as per the Notice of Eviction dated 8th February, 2013 but strictly guided by the provision of Section 152C, E & G of the Land (Amended) Act No. 6 of 2012
  3. 3.Costs of the suit awarded to the 1st & 2nd Defendants jointly and severally, to be borne by the Plaintiffs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010; Environment and Land Court Act, No. 19 of 2011

Relief refused

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Declaration that Plaintiffs and persons they represent are entitled to the rights set out at paragraph 12 of the Plaint

Plaintiffs have no claim on public land which is railway land; prayer unmerited

p. 25

Declaration that the Defendants' notice of eviction is null and void

Statutory eviction procedure was not shown to have been breached; Plaintiffs were given sufficient notice

p. 29

Injunction restraining the Defendants from evicting the Plaintiffs

Plaintiffs proved no legal or beneficial interest in the suit property capable of protection

p. 29

Order compelling Defendants to avail information relating to the suit premises

Failed with the other prayers as Plaintiffs proved no case

p. 29

Alternative prayers for one-year notice, public hearings, resettlement proposals and resettlement costs

Failed with the other prayers; Plaintiffs did not prove their claim

p. 29

Costs

Costs of the suit awarded to the 1st & 2nd Defendants jointly and severally, to be borne by the Plaintiffs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a. That Judgment be and is hereby entered in favour of the 1st & 2nd Defendants and the claim by the Plaintifis as in respect to the Plaint dated 8th June, 2015 by Alphonse Ojera Administrator of the Estate of Isaa Ouma Mutangili Mwanthi (Suing on their behalf and on behalf of the Residents of Birikani Estate Changamwe) be and is hereby dismissed with costs.
p. 30Final orders – dismissal
b. That the 1st Defendant be and are at liberty to carry out the lawful (not forceful) eviction as per the Notice of Eviction dated 8th February, 2013 but strictly guided by the provision of Section 152C, E & G of the Land (Amended) Act No. 6 of 2012.
p. 30Liberty to evict lawfully
c. That costs of the suit is awarded to the 1st & 2nd Defendants jointly and severally to be borne by the Plaintifis herein.
p. 30Costs order
I find that the Plaintifi has not proved beneficial or legal proprietorship to the suit property. From the evidence on record there is clearly no basis for the Plaintifi’s claim to the suit property.
p. 25Failure to prove claim to land
the main substratum of the case pertains to issues of the use, occupation and title of the suit land which fall with the scope of Article 162 ( 2 ) ( b ) of the Constitution of Kenya, 2010 and the Environment and Land Court Act, No. 19 of 2011. Consequently, this Honourable Court discerns that it has jurisdiction to hear and determine this matter.
p. 20Jurisdiction
However, where there is unlawful occupation, forceful eviction must be carried out in a humane manner.
p. 26Humane eviction standard

Issues in the judgment

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minor

The suit number of the case is never stated anywhere in the judgment; the case is identified only by the Plaint dated 8th June, 2015

minor

The submission date of the Plaintiffs' written submissions is inconsistent with the date judgment was reserved: submissions dated 6th March, 2025 are described although the court reserved judgment on 16th September, 2024

minor

Internal inconsistency on the 1st Defendant's Statement of Defence dates: earlier stated as dated 27th July, 2018 and filed 1st August, 2018, later described as dated 27th June, 2015 and filed 15th August, 2015

minor

The first witness for the 1st Defendant is referred to inconsistently as Justine Oyagi Omothe and Justine Omoke

minor

Paragraph numbering restarts at 117 twice and the numbering of the conclusion section jumps from 'VII' to 'VI'

material

The court's own account of the Plaintiffs' residence contradicts the Plaint: the judgment states 'further the land they claim is government land and therefore they had all right to it', which is inconsistent with its finding that the Plaintiffs had no claim to the land

minor

The court dismissed the Plaintiffs' claim but simultaneously urged compensation/resettlement by the Government, stating in one passage that the Plaintiffs 'had all right to it' while dismissing all prayers

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ojera (The legal administrator of the Estate of Isaa Ouma Mutangili Mwanthi - Suing on their behalf and on behalf of the residents of Birikani Estate Changamwe) v Kenya Railways Corporation & another (Environment & Land Case 126 of 2015) [2025] KEELC 1495 (KLR)", Case Analysis (2025). Not stated in the judgment (instituted by Plaint dated 8th June, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1495/eng@2025-03-21

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