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ELCPartially AllowedNot stated in the judgment (interim application in a petition)

Kariuki & another (Being Chairman and Treasurer suing in public interest and on behalf Karen Ngong View Estate Association) v Kenya Railways Corporation & another (Land Case Petition E017 of 2025) [2025] KEELC 4098 (KLR)

High Court of Kenya
19 May 2025
4,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The High Court declined to stop the Riruta-Ngong railway project, ruling compulsory acquisition disputes must first go to the Land Acquisition Tribunal.

What this practically means

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Executive summary

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The court determined the Petitioners' Notice of Motion dated 3rd February 2025 seeking conservatory orders to halt the Riruta-Ngong meter gauge railway commuter project and any compulsory acquisition under Gazette Notice No. 16243 of 20th November 2024, together with the 1st Respondent's Notice of Preliminary Objection. The Petitioners, largely representing Karen Ngong View Estate, argued the project was launched without public participation, environmental impact assessment, feasibility studies or a resettlement plan; that acquiring about 45 parcels and three acres of Ngong Road Forest violated Articles 10, 40, 47 and 69; and that design choices were discriminatory and hazardous. The Respondents deponed to stakeholder engagements between November 2023 and April 2024, an EIA submitted to NEMA, feasibility studies, and National Treasury funding approval. The 1st Respondent's Preliminary Objection contended that under Section 133C of the Land Act the Land Acquisition Tribunal is the proper first-instance forum. Applying the Supreme Court's exhaustion jurisprudence, the court upheld the objection on that point, holding claimants on compulsory acquisition must first go to the Tribunal. On the interim relief, the court found the owners of the gazetted parcels were not parties and had not complained; the Petitioners offered no alternative design or technical evidence, and few other affected estates objected. Relying on Dupoto Farms and Multiple Hauliers, the court held compulsory acquisition under Article 40(3)(b) is lawful subject to compensation and that the project's public import outweighed the Petitioners' interest. The Preliminary Objection was allowed, the conservatory orders refused, the Petition not dismissed, and costs were in the cause.

Questions the Court framed

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

  1. 1.Whether the Petitioners are entitled to the conservatory orders sought
  2. 2.Whether the 1st Respondent's Notice of Preliminary Objection is merited (this Court's jurisdiction vis-à-vis the Land Acquisition Tribunal and doctrine of exhaustion)

Key legal issues

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01

Whether the High Court has first-instance jurisdiction over disputes on the process of compulsory acquisition

Holding

The Preliminary Objection is merited on the point of exhaustion; such issues must first go to the Land Acquisition Tribunal under Section 133C of the Land Act

Reasoning

Relying on the Supreme Court's decision in Albert Chaurembo Mumbo, the court held that even where superior courts have jurisdiction over profound questions of law, the first opportunity must be given to relevant tribunals under the parent statute. The Petitioners' complaints on the acquisition process were therefore subject to the mandatory exhaustion doctrine, though the Petition itself was not dismissed because other constitutional issues remain.

p. 7
02

Whether conservatory orders halting the Riruta-Ngong railway project should issue

Holding

No; the Petitioners did not demonstrate a prima facie case, and the public-interest import of the project outweighs their interest

Reasoning

The court noted that owners of the properties gazetted for acquisition are not parties and had not sworn affidavits complaining of the acquisition process; the Petitioners offered no alternative designs and their future-impact concerns lacked technical evidence. Compulsory acquisition carries compensation, and following Multiple Hauliers, the project's import outweighs the Petitioners' interest.

p. 8
03

Whether the public participation and environmental concerns render the gazette notice unconstitutional

Holding

Not established on the interim application; the Respondents deponed to stakeholder engagements and an EIA submitted to NEMA

Reasoning

The Respondents' affidavits detailed stakeholder meetings between November 2023 and April 2024 with questionnaires, minutes and attendance registers, and an EIA addressed to NEMA. The Petitioners' rebuttal (unsigned minutes, no invitations, no Kenya Forest Service engagement) was considered, but the court found the constitutional claims insufficient to justify interim restraint, particularly given limited participation by other affected estates.

p. 7

Legal principles established

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  • Under Section 133C of the Land Act, a party with an issue on the process of compulsory acquisition must first lodge a claim with the Land Acquisition Tribunal before going to court (doctrine of exhaustion)
  • Conservatory orders are granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes
  • The right to property is not absolute; the State may deprive a person of land for a public purpose subject to payment of just compensation

Court orders

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  1. 1.Preliminary Objection by the 1st Respondent allowed on the point that disputes on the process of compulsory acquisition must first go to the Land Acquisition Tribunal
  2. 2.Notice of Motion dated 3rd February 2025 disallowed (conservatory orders refused); the Petition itself not dismissed as other constitutional issues remain
  3. 3.Costs in the cause

The bench

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

Wrote the judgment

Jurisdiction invoked
Constitutional petition (Articles 10, 35, 40, 47, 69 invoked); jurisdiction contested under Section 133C of the Land Act

Relief refused

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Conservatory order restraining the Respondents from proceeding with the project and compulsory acquisition under Gazette Notice No. 16243

Petitioners failed to demonstrate a prima facie case; compulsory acquisition is lawful under Article 40(3)(b) subject to compensation; public interest in the project outweighs the Petitioners' interest; also failure to exhaust the Land Acquisition Tribunal

p. 8

Costs

Costs will be in the cause.

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.

I find the 1st Respondent's Preliminary Objection merited on this point as the Petitioners have failed to adhere to the doctrine of exhaustion.
p. 7Doctrine of exhaustion - Land Acquisition Tribunal as first-instance forum
I find that the Petitioners have not adequately demonstrated a prima facie case to warrant the granting of conservatory orders sought.
p. 8Failure to establish prima facie case for conservatory orders
I find that the import of the project outweigh the Petitioners' interest.
p. 8Public interest outweighing private property interest
I find the Notice of Preliminary Objection merited, will allow it but not dismiss the Petition as there are other Constitutional issues raised. I however find the Notice of Motion dated the February 3, 2025 unmerited and will disallow it.
p. 8Disposition
Costs will be in the cause.
p. 8Costs

Issues in the judgment

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minor

The judgment does not expressly name the court or case number; the sign-off reads only 'DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ... CHRISTINE OCHIENG JUDGE'.

minor

The judgment refers inconsistently to 'Section 133 C (6)' in the Preliminary Objection and 'Section 133 (c)' in the analysis of the same Land Act provision.

minor

The court allows the Preliminary Objection on jurisdiction but does not dismiss the Petition, leaving its fate on the remaining constitutional issues unstated in the orders.

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, "Kariuki & another (Being Chairman and Treasurer suing in public interest and on behalf Karen Ngong View Estate Association) v Kenya Railways Corporation & another (Land Case Petition E017 of 2025) [2025] KEELC 4098 (KLR)", Case Analysis (2025). Not stated in the judgment (interim application in a petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4098/eng@2025-05-19

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