Gulamhussein v Kenya Railways Corporation Limited (Environment & Land Case 46 of 2018) [2025] KEELC 2845 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled Kenya Railways breached a lease by never handing over the land, awarding the tenant Kshs. 7 million.
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 Honourable Court has the Jurisdiction to determine this suit?
- 2.Whether there was a valid agreement duly executed between the Plaintiff and the Defendant.
- 3.Whether there was a breach by the Defendant?
- 4.Whether the Plaintiff is entitled to the orders sought in the Plaint.
- 5.Who bears the costs of the suit?
Key legal issues
#Jurisdiction - effect of non-compliance with Section 87(a) of the Kenya Railways Act notice requirement
Failure to issue the statutory notice was not fatal to the suit and did not oust the court's jurisdiction
The court considered Section 87 of the Kenya Railways Act alongside Article 48 of the Constitution on access to justice, and authorities including Joseph Nyamamba, Kenya Bus Services and Catherine Njeri Majani. Guided by those decisions, it found that treating the missing notice as fatal would amount to an unconstitutional impediment, so the court was clothed with jurisdiction to hear and determine the suit.
Validity of the lease agreement
The lease agreement was valid and duly executed
The court examined Section 3(3) of the Law of Contract Act and Section 38 of the Land Act on formalities for land contracts. It found the plaintiff paid the required sums, executed the lease, which was registered and stamped, and that the defendant's objections to validity were purely academic. All conditions necessary for a valid lease were fulfilled.
Breach of contract
The defendant was in breach by failing to grant vacant possession
The lease entitled the plaintiff to possession upon execution of the lease agreement. Despite execution, payment of all charges and numerous requests, the defendant never handed over the site, and the plaintiff encountered a third party claiming the same land. The court held that failure to deliver vacant possession could only amount to breach of the lease agreement.
Special damages
Special damages of Kshs. 7,012,940/- proved through receipts and awarded
The court applied the rule that special damages must be specifically pleaded and strictly proved. Relying on the receipts produced by the plaintiff, it found proof of the special damages claimed. However, the loss-of-income claim failed for want of proof, as the plaintiff had no evidence of the loss of materials or the basis of the daily income figure.
Loss of income claim
Claim for loss of income at Kshs. 22,500/- per day not proved and declined
Loss of income is in the nature of special damages requiring strict proof. The plaintiff had no proof of the lost materials, no evidence of where or from whom the contractor bought them, and no evidential basis for the daily rate or capacity figures in the valuation report. In the absence of proof, the claim became unrealistic and speculative.
Costs
Costs follow the event; the successful plaintiff is awarded costs
Applying Section 27(1) of the Civil Procedure Act and the principle that costs follow the event, the court found that since the plaintiff had proved his claim, the costs of the suit should be borne by the defendant.
Legal principles established
#- Failure to issue the statutory 30-day notice under Section 87(a) of the Kenya Railways Act is not fatal to a suit, given Article 48 on access to justice
- A land lease satisfying the writing, signature and attestation requirements is valid and enforceable
- Failure to grant vacant possession of leased land amounts to breach of contract
- Special damages must be specifically pleaded and strictly proved
- Loss of income must be proved by evidence and cannot be awarded in the absence of proof
Court orders
#- 1.Judgment entered in favour of the Plaintiff in respect of the Further Amended Plaint dated 27th September, 2021 with costs
- 2.Special damages of Kshs. 7,012,940/- awarded to the Plaintiff as proved through receipts
- 3.Interest awarded on the special damages from 1st October, 2009 until payment in full
- 4.Costs of the suit awarded to the Plaintiff and borne by the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit; jurisdiction contested under Sections 83(1) and 87(a)(b) of the Kenya Railways Act, Cap 397, considered against Article 48 of the Constitution
Relief refused
#Loss of income at Kshs. 22,500/- per day from 1/10/2009 to 30/09/2015
Loss of income is a special damage claim which must be specifically pleaded and strictly proved; no proof of income was adduced
Costs
Costs of the suit awarded to the Plaintiff and borne by the Defendant.
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.
That Judgment be and is hereby entered in favour of the Plaintifi in respect to the Further Amended Plaint dated 27th September, 2021 in its entirety with costs.
That a Plaintifi be and is hereby awarded Special damages for a sum of Kenya Shillings Seven Million Twelve Thousand Nine Hundred and Forty (Kshs. 7,012,940/-) as proved through receipts.
That interest is awarded on (b) above from 1st October, 2009 to payment of the amount in full.
That costs of the suit to be awarded to the Plaintifi and borne by the Defendant herein.
the failure by the Plaintifi herein to issue notice of intention to sue the Defendant before institution of this suit would amount to unconstitutional requirement. Thus, I discern that is not fatal to the suit.
the agreement duly executed between the Plaintifi and the Defendant was valid as all the conditions necessary for a valid land agreement/ lease under Section 38 of the Land Act, No. 6 of 2012 and Section 3(1) of the Law of Contracts Act, Cap. 23 had been fulfilled.
The consequences of failure to give the said vacant possession would therefore only lead to one thing and that would be breach of contract.
I find the claim not proved and decline to make any award.
Issues in the judgment
#The suit number is stated inconsistently within the judgment - the site visit report caption gives ELC No. 46 of 2006 while an internal line references ELC E29 of 2022
The disposition orders judgment 'in its entirety' although the court expressly declined the loss-of-income prayer, making the final order internally inconsistent with its finding on loss of income
The judgment date in the signature block (21st March 2025) differs from the scheduled judgment date of 19th February 2025 mentioned earlier
The amount of the stamp duty is inconsistently stated in the judgment (Kshs. 8,840/- in places, Kshs. 840,000/- and Kshs. 8,880/- in others)
The refund amount is inconsistently recorded (Kshs. 385,500/- in most places, Kshs. 385,000/- in others)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gulamhussein v Kenya Railways Corporation Limited (Environment & Land Case 46 of 2018) [2025] KEELC 2845 (KLR)", Case Analysis (2025). ELC No. 46 of 2006 (also referred to in the judgment as ELC E29 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2845/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.