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Portsmouth Holdings Limited v Kenya Railways Corporation (Environment & Land Case 7 of 2021) [2025] KEELC 4909 (KLR)

Environment and Land Court
25 June 2025
10,311 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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Kenya Railways must pay a Kitale landowner KShs 57 million for demolishing its property, because a valid title beats an old vesting claim.

What this practically means

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Executive summary

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The plaintiff, the registered owner of LR No. 2116/414 in Kitale Municipality, sued Kenya Railways Corporation for trespass, demolition of its godowns and stores, and denial of access, pleading violation of Article 40 of the Constitution. It sought a permanent injunction, compensation of Kshs. 35,000,000/= for the land, Kshs. 17,228,010/= for destroyed structures and lost rental income of Kshs. 398,000/= per month. The defendant claimed the land formed part of the Kitale Railway Station operational area vested in it by Legal Notice No. 440 of 1963 and Vesting Order No. 24 of 1986, alleged fraud and illegality in the chain of title originating in a 1955 grant, and counterclaimed for a declaration of ownership, vacant possession and a permanent injunction against the plaintiff and Mohamed Salim as 2nd defendant. The court framed nine issues. It held that the grant of 1/1/1955, perfected by registration in 1960, conclusively alienated the land, which was private land at independence; only unalienated Crown land in railway use could vest in the defendant under the 1963 notice, and the special conditions in the grant conferred administrative oversight, not ownership. The defendant's survey exhibits were uncertified and not produced by the statutory custodians. The demolition without any court order, without the 90 days' notice under Section 152A of the Land Act and by self-help constituted continuing trespass and a breach of Articles 40 and 47. The counterclaim against Mohamed Salim was a non-starter for want of service of summons. The court granted a permanent injunction and compensation of Kshs. 57,004,001/=, dismissed the counterclaim, disallowed general damages for lost earnings and business opportunities as unpleased and unproven, and awarded costs of the suit to the plaintiff.

Questions the Court framed

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

  1. 1.If the plaintiff has proved that it owns the suit land
  2. 2.If the plaintiff formally, procedurally and legally acquired, took possession and developed the suit land until 29th or 30/1/2021
  3. 3.What are the implications of not serving a summons to enter appearance on the 2nd defendant in the counterclaim
  4. 4.If the defendant has proved that the suit land is public land and/or forms part of Kitale Railways Station Operation Area
  5. 5.If the plaintiff has proved trespass, continuing trespass, breach of the right to own land, acts of waste, and denial of use or occupation of the land
  6. 6.If the defendant was justified in entering onto, demolishing and fencing the suit land
  7. 7.If the plaintiff has pleaded, proved and is entitled to special and general damages
  8. 8.What is the order of costs

Key legal issues

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01

Whether the plaintiff proved ownership of LR No. 2116/414

Holding

Yes. The 1955 grant, perfected by registration in 1960 and traced through transfers to the plaintiff, conclusively alienated the land, which was private land by independence and could not vest in the defendant under the vesting orders.

Reasoning

The court applied the repealed Registration of Titles Act sections 23, 60, 63 and 64, holding that a certificate of title is conclusive and could only be cancelled by a court. The defendant produced only uncertified survey plans and vesting orders; the 1963 vesting notice covered only unalienated Crown land in railway use, and the land had been alienated in 1955. The defendant never invoked the statutory correction machinery against the grant, deed plan or lease for over 46 years.

p. 13
02

Whether the defendant proved the land was public land forming part of Kitale Railways Station operational area

Holding

No. The defendant failed to discharge the burden of proving any alienation or reservation in its favour apart from the 1955 grant.

Reasoning

The defendant relied on survey drawings, the vesting orders of 1963 and 1986 and rent records, but the exhibits were uncertified and not produced by the Land Registrar or Surveyor, the statutory custodians. The deed plan accompanying the grant showed no railway line crossing the property. The special conditions granting administrative oversight did not confer ownership or head-lessor status.

p. 14
03

Whether the defendant was justified in entering, demolishing and fencing the suit land

Holding

No. The entry and demolition were unjustified trespass and a violation of Article 40; no court order declared the plaintiff's title invalid and the statutory repossession and eviction procedures were not followed, including the 90 days' notice under Section 152A of the Land Act.

Reasoning

Trespass is actionable per se and requires proof of the right to immediate and exclusive possession. The defendant relied on newspaper notices aimed at encroachers, but the plaintiff held a certificate of lease and there was no judicial declaration invalidating it. The defendant used armed personnel, demolished structures and fenced off the land with armed guards, an arbitrary and oppressive deprivation of property carried out in self-help, breaching Articles 40 and 47.

p. 15
04

Whether the plaintiff proved entitlement to special and general damages

Holding

Partly. Compensation of Kshs. 57,004,001/= (Kshs. 35,000,000/= land value plus Kshs. 17,228,010/= cost of reconstruction) was awarded on the unchallenged valuation reports, but general damages for loss of earnings and business opportunities were disallowed as unpleased and unproven.

Reasoning

The valuation reports were admitted without objection and were not challenged by rival expert reports, as required. However, the plaintiff's own witness admitted the absence of bills of quantities, receipts, lease and tenancy agreements, business permits, licences and bank records supporting the claimed rental income of Kshs. 398,000/= per month or the projected business venture, so those heads failed for want of proof.

p. 16
05

Effect of failure to serve summons to enter appearance on the 2nd defendant in the counterclaim

Holding

The counterclaim against Mohamed Salim was a non-starter for want of service under Order 7 Rules 9 and 10 of the Civil Procedure Rules.

Reasoning

Mohamed Salim was joined only by way of counterclaim and was not a party to the plaint. Under Order 7 Rules 9 and 10 of the Civil Procedure Rules, a newly joined party must be served with summons to enter appearance; failure renders the counterclaim against him incapable of being entertained. Issue (iii)/(vi) was answered in the negative.

p. 11

Legal principles established

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  • A grant of leasehold alienated by the Governor before independence, perfected by registration, concluded the alienation of the land; only unalienated Crown land in use by the railways could vest in the Corporation under the 1963 vesting notice.
  • Special conditions in a grant requiring administrative consents do not amount to ownership of the land or make the administering body a head lessor.
  • Demolition without a court order declaring the title invalid or following the statutory repossession and eviction process violates Articles 40 and 47 of the Constitution and constitutes trespass.
  • A party bringing a new party by counterclaim must issue and serve summons to enter appearance on that new party, failing which the claim against that party is a non-starter.
  • Uncertified copies of survey maps and land records produced by a party who is not the maker or custodian are inadmissible to displace a certificate of lease.

Court orders

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  1. 1.Permanent injunction restraining the defendant, its agents and those claiming through it from laying any claim on LR No. 2116/414, trespassing thereon or interfering with the plaintiff's quiet enjoyment of the suit land
  2. 2.Compensation of Kshs. 57,004,001.00 to the plaintiff, subject to confirmation of payment of the requisite court fees under Section 96 of the Civil Procedure Act
  3. 3.The counterclaim dismissed with costs
  4. 4.Costs of the suit to the plaintiff

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land ownership, trespass and title (Environment and Land Court Act), including a claim of violation of Article 40 of the Constitution

Relief refused

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General damages for loss of earnings and business opportunities (Kshs. 209,120,000/= claimed for lost business opportunities)

Not specifically pleaded, proved or substantiated; no lease agreements, business records, permits, licences, board resolutions or supporting documentation were availed

p. 16

Costs

Costs of the suit to the plaintiff; the counterclaim dismissed with costs.

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.

An order of permanent injunction is hereby issued, restraining the defendant, its agents and those claiming through it from laying any claim whatsoever on LR No.2116/414, trespassing thereto or doing anything to interfere with the plaintifi's quite enjoyment of the suit land.
p. 16Final orders - permanent injunction
An order for payment of compensation is hereby issued for Kshs.57,004,001.00, subject to confirmation of payment of the requisite court fees, in line with Section 96 of the Civil Procedure Act.
p. 16Final orders - compensation
The counterclaim is dismissed with costs. Costs of the suit to the plaintifi.
p. 16Final orders - costs
My considered view of the independence Constitution and the repealed Registration of Titles Act, and the case law is that the Grant issued on 1/1/1955 and perfected by the Registrar of Titles in 1960, concluded the alienation of the suit land.
p. 13Alienation and vesting
my plain reading of Legal Notice No. 440 of 1963 at Schedule 1 is that, what could only vest to the defendant was all land which immediately before the 1/6/1963, either was unalienated Crown land or was vested in the Trust Land Board
p. 13Scope of the 1963 vesting notice
The court has already found that the claim by the defendant is built on false premises and quicksand.
p. 14Defendant's ownership claim
There is no evidence that the defendant before the trespass and the demolition sought the registrar of titles, the Director of Surveys and the Commissioner of Lands to cancel, grant, deed plans and the lease of the suit land
p. 13Failure to use statutory title-correction machinery
Where a party brings a new party by way of a counterclaim, who was not a party in the initial plaint, a summons to enter appearance must be issued and served upon such a party under Order 7, Rules 9 and 10 of the Civil Procedure Rules.
p. 11Service on new parties to counterclaims

Issues in the judgment

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minor

Plaintiff's submission claims acquisition of the land in 2011, while the plaint and evidence state 2017

minor

The defendant's submission references a compensation figure of Kshs.57,004,001/= as 'Kshs.57,004,001/=' but also the plaintiff's bundle claims Kshs.209,120,000/= for lost business opportunities which was never pleaded in the plaint

minor

The judgment refers to 'Kenya Power and Lighting Company Limited case, whose full citation was not provided'

minor

The judgment's description of PW1's evidence alternately refers to the initial grantee as '030 EA. Petroleum Co, Ltd' and '020 East African Petroleum Corporation Ltd' and the lease date as both 1/1/1955 and 1/1/1995 in places

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Portsmouth Holdings Limited v Kenya Railways Corporation (Environment & Land Case 7 of 2021) [2025] KEELC 4909 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4909/eng@2025-06-25

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