Gatheru & another v Kenya Railways Corporation & another (Environment and Land Case 929 of 2017) [2026] KEELC 2285 (KLR)
The bottom line
#Landowners in a Kenya Railways case cannot switch their lawsuit to a compensation claim — only Kenya's Land Acquisition Tribunal can decide compensation for compulsorily acquired land.
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 jurisdiction to entertain and allow the proposed amendments and transfer/refer the suit to the Land Acquisition Tribunal in light of the dispute relating to compulsory acquisition of land
Key legal issues
#Whether the Court has jurisdiction to allow amendments introducing a claim for compensation for compulsory acquisition
The Court lacks jurisdiction; compensation for compulsory acquisition is within the exclusive first-instance jurisdiction of the Land Acquisition Tribunal under Section 133C(6) of the Land Act, and no amendment can introduce a claim the Court cannot entertain.
The proposed amendment would fundamentally alter the dispute from trespass to compensation for compulsory acquisition. Section 133C(6) of the Land Act, couched in mandatory terms with a non-obstante clause, ousts the Court's original jurisdiction and designates the Tribunal as the court of first instance. Applying Mutanga Tea, a party cannot amend pleadings to introduce a cause of action the Court had no jurisdiction to entertain. The amendment prayer therefore fails.
Whether the suit should be referred to the Land Acquisition Tribunal
Referral is refused because the claim actually before the Court remains a claim for trespass; there is nothing before the Court to refer.
Having declined the amendment, the suit before the Court remains the original trespass claim. The Court found no basis for referring the matter to the Tribunal even if it had the power to do so, leaving the Plaintiffs to rethink their litigation strategy in light of the Court of Appeal's observation that the trespass claim had been overtaken by compulsory acquisition.
Legal principles established
#- A party cannot amend pleadings to introduce a cause of action that the court has no jurisdiction to entertain in the first place.
- Section 133C(6) of the Land Act, in mandatory terms and with a non-obstante clause, ousts the High Court/ELC's original jurisdiction over matters relating to compulsory acquisition of land, making the Land Acquisition Tribunal the court of first instance.
- Jurisdiction is the first question a court must answer before taking any further step in a suit.
Court orders
#- 1.The Notice of Motion application dated 28th July 2025 is dismissed in its entirety with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 Rule 15(1) of the Civil Procedure Rules, 2010; jurisdiction examined against Section 133C of the Land Act, No. 6 of 2012
Relief refused
#Leave to amend the Plaint dated 14th November 2017
The proposed amendment introduces a claim for compensation for compulsory acquisition, which falls within the exclusive jurisdiction of the Land Acquisition Tribunal under Section 133C(6) of the Land Act
Deeming the Draft Amended Plaint as duly filed and served
Follows the refusal of leave to amend
Referral of the dispute to the Land Acquisition Tribunal
The claim before the court remains a claim for trespass, so there is no basis for referral even if the court had the power
Costs
The Notice of Motion application dated 28th July 2025 is dismissed in its entirety with costs (costs to the Defendants/Respondents).
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.
Accordingly, the Notice of Motion application dated 28th July 2025 being the application under consideration is hereby dismissed in its entirety with costs.
Since the dispute has crystallized into a claim for compensation for land taken for public purpose, it falls squarely within the preserve of the Land Acquisition Tribunal pursuant to Section 133C(6) of the Land Act.
A party cannot seek to amend pleadings to introduce a cause of action that the Court had no jurisdiction to entertain in the first place.
Jurisdiction is everything. Without it, a Court has no power to make one more step.
Issues in the judgment
#The judgment states the date of delivery as 23rd April 2026, more than eight months after the application of 28th July 2025 was filed and after submissions of September/October 2025; this is as printed and has been recorded accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatheru & another v Kenya Railways Corporation & another (Environment and Land Case 929 of 2017) [2026] KEELC 2285 (KLR)", Case Analysis (2026). Notice of Motion application dated 28th July 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2285/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.