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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has the jurisdiction to determine the matter
- 2.Whether the Plaintiff has any legitimate claim to the suit property
- 3.Whether the Plaintiff is entitled to the orders sought in the Plaint
- 4.Who bears the costs of the suit
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Injunction restraining the Defendants from evicting the Plaintiffs
Plaintiffs proved no legal or beneficial interest in the suit property capable of protection
Order compelling Defendants to avail information relating to the suit premises
Failed with the other prayers as Plaintiffs proved no case
Alternative prayers for one-year notice, public hearings, resettlement proposals and resettlement costs
Failed with the other prayers; Plaintiffs did not prove their claim
Costs
Costs of the suit awarded to the 1st & 2nd Defendants jointly and severally, to be borne by the Plaintiffs
Quotable passages
#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.
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.
c. That costs of the suit is awarded to the 1st & 2nd Defendants jointly and severally to be borne by the Plaintifis herein.
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.
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.
However, where there is unlawful occupation, forceful eviction must be carried out in a humane manner.
Issues in the judgment
#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
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
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
The first witness for the 1st Defendant is referred to inconsistently as Justine Oyagi Omothe and Justine Omoke
Paragraph numbering restarts at 117 twice and the numbering of the conclusion section jumps from 'VII' to 'VI'
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
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
#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.