Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Suit No. 59 of 2019 (consolidated with ELC Suit No. 8 of 2020)· [2025] KEELC 7905 (KLR)

Jacob & 4 others (Suing on Behalf of Themselves and on Behalf of Kisumu Centre Jua Kali Artisans Association) v Kisumu County Government & 12 others (Environment and Land Case Civil Suit 59 of 2019 & 8 of 2020 (Consolidated)) [2025] KEELC 7905 (KLR)

Environment and Land Court
11 November 2025
12,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~52 min to read original · ~4 min brief

The bottom line

#

Kisumu's Environment and Land Court cancelled Jua Kali artisans' title to railway land but gave them up to five years or alternative land before eviction.

What this practically means

#

Executive summary

#
This first-instance judgment of the Environment and Land Court at Kisumu (S. Okong'o, J) resolves the consolidated ELC Suit No. 59 of 2019 and ELC Suit No. 8 of 2020. The Plaintiffs, officials and members of Kisumu Centre Jua Kali Artisans Association, claimed to be the registered leasehold proprietors of Title No. Kisumu Municipality/Block 6/517, allocated to them in 1994, and sought injunctions and declarations to stop their compulsory acquisition and relocation for the Uhuru Business Park Market Complex project. Kenya Railways Corporation (the 6th Defendant) counterclaimed, asserting that the suit property had been fraudulently excised from its Railway land, Title No. Kisumu Municipality/Block 6/95, vested in it under Legal Notice No. 440 of 1963 and Legal Notice No. 24 of 1986 and held under Grant No. I.R 21961 since 1967. The court found the Plaintiffs' documents defective: an undated, unsigned and unregistered allotment and lease, two inconsistent leases (one from the national government and one from the County Government), and no evidence of surrender of the land by the Corporation as required by Sections 14(4) and (5) of the Kenya Railways Corporation Act. Applying Dina Management, Munyu Maina, Daudi Kiptugen and Macfoy, the court held the allocation void and the Plaintiffs' title a nullity. Adverse possession was rejected as public land cannot be so acquired. Judgment was entered for Kenya Railways Corporation on the counterclaim: the Railway land declared its property, the Plaintiffs' registration cancelled, and possession ordered - but vacation is conditioned on the National or County Government providing an acceptable alternative site, or within five years, whichever is earlier. The Plaintiffs' suit was dismissed; immediate eviction was withheld on socio-economic rights grounds. Each party bears its own costs.

Key legal issues

#
01

Whether the Plaintiffs were lawful owners of the suit property

Holding

No. The suit property was excised from the Railway land vested in the 6th Defendant since 1963/1967 and never surrendered; the purported allocation was unlawful and void

Reasoning

The 6th Defendant produced Grant No. I.R 21961 and survey plans showing the suit property fell within Title No. Kisumu Municipality/Block 6/95. Under the Government Lands Act only unalienated government land could be allocated, and under Sections 14(4) and (5) of the Kenya Railways Corporation Act the land could only be reallocated after surrender by the 6th Defendant, which never occurred. The inconsistent leases (one by the national government, one by the County Government) further undermined the Plaintiffs' root of title.

p. 17
02

Whether the Plaintiffs could rely on indefeasibility of their registered title

Holding

No. Indefeasibility does not protect a title acquired through an illegal or irregular process

Reasoning

Relying on Dina Management and the quoted authorities, the court held that registration is absolute only where the creation of the title complied with applicable law and was free of fraud. Since the allocation was void, it created no valid interest despite the certificate of lease of 2016.

p. 19
03

Whether the Plaintiffs acquired prescriptive rights over the suit property

Holding

No. Public land cannot be acquired by adverse possession

Reasoning

The suit property was public land allocated to a state corporation; the court agreed with the Defendants that prescription does not run against such land, and accordingly rejected the alternative prayer.

04

Whether the 6th Defendant's counterclaim succeeded

Holding

Partially. The declaration that the Railway land belongs to the 6th Defendant and cancellation of the Plaintiffs' title succeeded, but immediate eviction and injunction were withheld pending alternative land or reasonable time

Reasoning

The 6th Defendant proved ownership and the fraud in the subdivision, but the court invoked Article 43 socio-economic rights and the Government's Jua Kali policy, noting some 38,000 livelihoods depended on the land, and that the Plaintiffs had been encouraged to believe they owned the property. Eviction was therefore conditioned on alternative site or 5 years.

p. 20

Legal principles established

#
  • A title obtained through a process that did not comply with the law is not indefeasible; the process of acquisition is material
  • Only unalienated government land can be allocated by the President or Commissioner of Lands; land already alienated to a corporation can only revert through surrender
  • A registered proprietor whose root of title is challenged must go beyond the title instrument and prove the legality of its acquisition
  • A void act is a nullity that is automatically void without need for a court order to set it aside
  • Even a person without title to land retains a right to humane treatment and protection of socio-economic rights against forcible eviction without alternative accommodation or reasonable time

Court orders

#
  1. 1.A declaration that the entire parcel of land known as Title No. Kisumu Municipality Block 6/95, measuring 23.29 acres, belongs to Kenya Railways Corporation, and any subdivision to create the land parcel Title No. Kisumu Municipality Block 6/517 was illegal, irregular, fraudulent, null, and void
  2. 2.An order that the registration of John Jared Odero, Peter Nyaondo Nyawanda, and Paul Ohuare Obadha, the Trustees of Kisumu Centre Jua Kali Artisans Association, as the proprietors of the leasehold interest in land parcel Title No. Kisumu Municipality Block 6/517 is cancelled
  3. 3.An order that the Plaintiffs in ELC No. 59 of 2019, and the 1st, 2nd, 3rd and 4th Defendants in ELC No. 8 of 2020, shall vacate and hand over possession of land parcel Title No. Kisumu Municipality Block 6/517 to Kenya Railways Corporation once the National Government or the County Government of Kisumu gives them an alternative site acceptable to the Association, or within five (5) years from the date of judgment, whichever comes earlier, failing which Kenya Railways Corporation may apply for forcible eviction
  4. 4.The Plaintiffs' claim in ELC No. 59 of 2019 is dismissed
  5. 5.Each party shall bear its costs of the consolidated suit

Authorities

#

Legislation

  • Kenya Railways Corporation Act, Chapter 397 Laws of KenyaSections 13, 14 (including 14(4) and (5))
  • Government Lands Act, Chapter 280 Laws of KenyaSections 2 and 3(a)
  • Registered Land Act, Chapter 300 Laws of KenyaSections 27, 28 and 30
  • Land Registration Act, 2012Sections 24, 25 and 26
  • Registration of Titles Act, Chapter 281 Laws of Kenya
  • State Corporations Act, Chapter 446 Laws of Kenya
  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya, 2010Article 43
  • Kenya Railways Corporation (Vesting of Land) Order 1986Legal Notice No. 24 of 1986
  • Kenya Vesting of Land Regulations 1963Legal Notice No. 440 of 1963
  • Societies Act
  • Sessional Paper No. 2 of 1992 on Small Enterprises and Jua Kali Development in Kenya

Cases cited (17)

  • Mureithi & 2 Others (For Mbari Ya Murathimi Clan) v. Attorney General & 5 Others
    Nairobi HCMCA No. 158 of 2005 (2006) 1 KLR 443
  • Vijay Morjaria v. Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Railal Gordhanbhai Patel v. Lalji Makanji
    [1957] E.A 314
  • Kenya Railways Corporation v. Ali & another; Chief Land Registrar (Interested Party)
    (Environment & Land Case 633 of 2015) [2024] KEELC 1814 (KLR) (11 April 2024)
  • Hubert L. Martin & 2 Others v. Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Munyu Maina v. Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009 [2013] eKLR
  • Mayfair Holdings Limited v. County Commissioner Kisumu & 3 others; Ethics & Anti-Corruption Commission & another (Interested Parties)
    [2024] KEELC 6332 (KLR)
  • Kipsirgoi Investment Ltd. v. Kenya Anti-Corruption Commission
    Civil Appeal No. 288 of 2010
  • Kenya Anti-Corruption Commission v. Online Enterprises Limited & 4 others
    [2019] eKLR
  • Sarnager Singh Hayer & Another v. Kenya Railways Corporation
    [2022] eKLR
  • Ndori Kayuga & Another v. Mike Sonko Mbuvi Gideon Kioko & Another
    (2022) eKLR
  • Ashok Kumar Pandey v. State of West Bengal
    (Writ Petition, Criminal No 199 of 2003)
  • Daudi Kiptugen v. Commissioner of Lands & 4 Others
    [2015] eKLR
  • Milankumar Shah & 2 others v. The City Council of Nairobi & another
    Nairobi High Court Civil Suit No. 1024 of 2005 (O.S)
  • Dina Management Limited v. County Government of Mombasa & 5 Others
    Supreme Court Petition 8 (E010) of 2021 [2023] KESC 30 (KLR) (21st April 2023)
  • Funzi Development Ltd & Others v County Council of Kwale
    Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR
  • Macfoy v. United Africa Co. Ltd.
    [1961] 3 All E.R 1169
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to land (as invoked by consolidation of ELC Suit No. 59 of 2019 with ELC Suit No. 8 of 2020)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jacob & 4 others (Suing on Behalf of Themselves and on Behalf of Kisumu Centre Jua Kali Artisans Association) v Kisumu County Government & 12 others (Environment and Land Case Civil Suit 59 of 2019 & 8 of 2020 (Consolidated)) [2025] KEELC 7905 (KLR)", Case Analysis (2025). ELC Suit No. 59 of 2019 (consolidated with ELC Suit No. 8 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7905/eng@2025-11-11

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