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)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction under the Kenya Railways Corporation Act ss 83(1) and 87(a)
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
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.
Whether the Plaintiffs have a legitimate claim to the suit property
No. Plaintiffs proved neither legal nor beneficial proprietorship; the land is railway operational land vested in the 1st Defendant
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.
Entitlement to the constitutional/eviction-relief prayers
Prayers (a) to (e) all dismissed; the eviction had not yet occurred and the statutory procedure was not shown to have been breached
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.
Costs
Costs follow the event; successful Defendants entitled to costs jointly and severally
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the 1st & 2nd Defendants and the claim in the Plaint dated 8th June, 2015 dismissed with costs
- 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.Costs of the suit awarded to the 1st & 2nd Defendants jointly and severally, to be borne by the Plaintiffs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010; Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.